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1.9 Legal issues in AV archives: an introduction
Catherine F Pinion
Legal issues in the management of audiovisual archive materials are numerous and range from copyright and its related rights to deposit, preservation and access arrangements. Copyright legislation exists to provide legal protection to the creators and publishers of published works and to prevent unfair copying of original works. Like print, audiovisual materials are also subject to copyright legislation. However, the difference for audiovisual materials lies in the fact that items such as sound recordings and moving image materials are "performance works" and carry additional rights beyond those which relate to the content and the physical format. These rights, known as neighbouring rights, are owned by the people who are involved in creating the final product. Also, the actual "performance" of the final product is subject to performance rights controls through royalties and fees, e.g. the public showing of a film, the broadcasting of a sound recording.
An example showing the variety of rights which can exist within an audiovisual work is film. It is necessary not only to consider the copyright belonging to the author of the original work used as the basis for the film, but also the neighbouring rights of the person who provides the screen adaptation, the composer and musicians who provide the film music, the producer and all those who work on the technical side (stage-sets, wardrobe, makeup, lighting, sound), and the actors and actresses who bring the work alive. All their rights need respecting in subsequent screenings of the film, whether to the general public in a cinema, or to a group of students in a lecture hall, or by an individual researcher in a film library.
As a result of copyright and neighbouring rights interests, the management of audiovisual materials is more complex than for print-based formats. There are likely to be formal agreements or contracts negotiated with the creators or production companies. These agreements may restrict access to items, e.g. restricted to use by students and private researchers, must not be used for thirty years, must not be used until the informant is dead (oral history recordings), no commercial applications allowed. All archivists are keen to attract new materials, especially original items. For audiovisual archives in particular, acquisition may depend on negotiated agreements to achieve deposit on a voluntary basis. This means that a good relationship must be maintained for the collection to develop. Audiovisual archivists, therefore, have a special interest in ensuring that copyrights and associated agreements are kept - and that access to materials is within the terms of the agreements. This is especially important for those countries where there is no legal deposit legislation for audiovisual materials.
This chapter will consider the legal issues that affect archives, from the time when an item enters a collection to its being available for use by an enquirer, whether for private research purposes or for public performance. Different types of archive or collection have different functions. Whether it is a designated national archive (with legal deposit responsibilities), a locally managed archive, a commercial archive or a private specialist collection, the purpose of the parent institution will affect the way in which the archive functions and, in consequence, the terms of agreement it operates within. Access to collections will depend on the most appropriate terms being negotiated.
Methods of Deposit and Acquisition
First, it is useful to consider briefly the different methods of acquiring stock. Each method has various legal issues to observe, and these may affect subsequent use of the materials. Acquisition or deposit methods can be grouped together as follows:
Copyright and Legal Deposit
Where materials are deposited as a result of copyright and legal deposit laws, archives carry a responsibility to ensure that all relevant materials are collected. Materials must be deposited by the production company in a designated centre or centres within a stipulated time. In the case of non-deposit, the centres are empowered to demand copies for deposit. Copyright deposit is often confused with legal deposit. Copyright deposit requires that items are deposited (or registered) in order to establish official rights and acquire a certain amount of protection in the courts should the copyright of the item be challenged. Registration strengthens any evidence that it is the original published work. The Library of Congress is a leading example of copyright deposit. Legal Deposit is the general requirement by law for 'publishers' to forward published items to a designated depository. Legal deposit is about the process of depositing in a nationally designated centre, rather than granting copyright protection. The primary aim of legal deposit is to create a cultural record of the published ideas, thoughts and influences of a nation, through the collection of information carriers (usually specified) so ensuring that they are not lost to a nation.
Worldwide, there are different levels of legal deposit. Because of the wide range of audiovisual materials, it is impossible for every item to be preserved. Consequently, most countries have specified within their legal deposit laws the range of formats to be deposited, and in some cases their 'subject' content. Canada, for example, operates selective legal deposit, limiting its collection to items originating in Canada and those with a Canadian content. This is not unusual. France, on the other hand, has sought to collect as exhaustively as possible, including foreign publications publicly available within France. This aims to fulfil the main criteria for legal deposit - that of creating a cultural record of the influences on a nation.
Even if copyright and legal deposit is restricted to "audio" and "visual" carriers such as sound recordings, film and video, these constitute extremely large areas of audiovisual publication. Some countries are more involved in production than others and this results in heavier responsibilities for the archives. Preservation of audiovisual items is costly, requiring regular monitoring and involves transfer to contemporary formats for ease of consultation. Clearly, legal deposit collections require a large financial commitment in order to maintain essential preservation programme. Where there is only a limited amount of production, then less money is required and it is theoretically easier to establish legislation for deposit.
Voluntary Deposit, Donations and Transfers
In the absence of legal deposit, voluntary deposit can be a highly successful method of creating national collections. In the UK, the National Film Archive and the British Library's National Sound Archive (two different institutions) are examples of important national collections built up over the years using this method of deposit. Systematic voluntary deposit is established through agreements with trade associations. The danger is that when the economy is tight, companies may cease to deposit because there is no legal requirement to do so. Both voluntary deposit and gifting are regular methods of acquisition in all types of archive, from large national collections down to small highly specialist archives.
The transfer of items from one depository to another may occur when one national collection decides to return a work to the country of its origin. This has many benefits: it helps the receiving country to fill a gap in its own national collection; it eases the financial pressures with regard to restoration and preservation work for the donor; it also enables users to see items in the country of origin. Transfers can also take place between institutions, e.g. when one organisation ceases to exist. These transfer arrangements need to ensure that ownership rights are respected (or re-established) and that rights already existing in the works are recognised and maintained.
Special Deposit Agreements
Special agreements are often negotiated to ensure that certain collections or items are deposited in archives. They may be specific to one item (as is usually the case with oral history recordings) or to a collection, or they may be the result of a convention drawn up by producers' associations. The latter are trade agreements contracts which override copyright law. In such contracts, specific requirements are laid down as to how the item or items are to be managed. Contracts of this nature are legally binding and whilst some may afford no real problems for the archive, there are some contracts relating to film which are very restrictive and seek to control access and use.
In-house arrangements for preservation are subject to the interests and policies of the organisation concerned. Radio and television archives are examples of "in-house" collections: copyright questions have been resolved, or the organisation holds the rights (because it has made the programme and effected the transmission). Use of the archive is usually restricted to the broadcasting organisation. Film and audio production companies may also maintain their own collections, which often include "takes" of recordings never released to the general public. Retention of items in such collections will be in line with the organisation's policies and will relate strongly to their commercial interests. The question of national preservation is not the first interest of the organisation.
A few countries have established laws concerning the archiving of broadcast programme (France - INA) and these collections will operate under the legal deposit rules within that country. In addition, whilst most broadcasting stations maintain their own archive collections for their own use, some have also entered into special agreements with outside organisations, allowing for the deposit or downloading of programmes and thereby providing greater access opportunities (UK - BUFVC and NSA).
Purchasing items is an option for acquiring materials where the producer may have problems in affording to deposit a free copy, e.g. film. As this method involves a financial outlay on the part of the archive, it is clear that this method has its limitations. However, all collections will employ this method to a certain extent.
Ownership and copyright restrictions
It is important to establish who owns the materials once they are deposited - and whether it is a temporary or permanent deposit. Also, it is advisable to try and establish who all the rights owners are, if possible. Some items may have been transferred from another archive, perhaps from abroad. What happens to the ownership and other rights in the works? A new agreement may need to be re-negotiated as the custodian has changed. With complex access clauses, as happens with film, this would clarify the copyright situation. With regard to unique recordings, such as oral history tapes, it is necessary to establish from the outset who will own the rights in order to avoid problems later on when requests are received to use sections of tapes for public performance or for commercial reasons. Whilst it is the informant's right to specify any restrictions he or she would like the archive to observe, equally it is in the interests of the collecting organisation to ensure that fair and workable agreements for both sides (depositor and the archive) are negotiated. Agreement at this stage avoids difficulty later on. Specially negotiated agreements will state the extent of access by users.
a) Clarify who OWNS the material deposited
b) Establish who the rightsowners are
c) Establish whether the deposit is temporary or permanent as this can affect access rights
d) If transferred from another institution and/or country ensure that all details concerning the origin of the item and its ownership rights are documented
e) Understand fully the copyright implications agreed at the time of deposit
To preserve audiovisual materials and make them accessible, there is a need to allow for the copying of the original onto another format. Copying onto a contemporary format means that the original or master copy is better preserved. In addition, it may be essential to transfer onto another format if the original is very damaged. In many countries, permission to copy onto a different, more stable format for preservation purposes is built into copyright legislations.
a) For access/exhibition purposes, ensure that agreement is reached to copy onto a contemporary format
b) For preservation work, ensure that either the agreement or copyright legislation allows for the copying of the original onto a more stable format.
c) Clear details of the archives responsibility to the depositor for preservation work should be included in any deposit agreement.
Whether the archive is national or local, private or commercial, there will be certain restrictions on access.
Similarly, whether the use be educational, for research purposes or recreational, copyright issues are involved. Whatever the agreement (be it through legislation or privately negotiated), copyright and neighbouring rights will affect the access and use of the materials. The need for audiovisual archives to negotiate agreements which meet the requirements of both depositor and archives is extremely important,
As has already been stated, contracts established by trade associations can be very restrictive indeed. For example, the International Federation of Film Producers Associations (FIAPF) has a contract agreement for the deposit of film in archives which includes some quite stringent conditions on how the archive should manage the film, that ownership rights should be retained by the company beyond the legal period of copyright - as well as who might be allowed to consult the film. Such restrictive practices are not in the best interests of archives, or of research. The reason for the trade associations imposing stringent regulations is commercial, reflecting the concern of film companies lest too much access might lead to abuse and consequently affect their livelihoods. In some countries, film archives find themselves compelled to sign such agreements in order to acquire items.
a) Copyright and neighbouring rights affect subsequent access to and use of materials
b) Trade contract agreements override copyright and may impose restrictions on the archive in the way it manages items
c) Whilst respecting the interests of the rightsholders, agreements should not be so restrictive as to prevent reasonable access to items.
d) Where there are specific restrictions on use of materials (public access, exhibition, restoration), these should be clearly stated in the contract.
Permanent or temporary withdrawal of materials
Many contract agreements, especially with film, include a clause allowing the withdrawal of items by the depositor. It is an unpopular clause with archivists whose primary concern is preservation. To safeguard the interests and goodwill of both parties, there is a need to clarify the terms under which a depositor can withdraw an item, either permanently or temporarily. It costs money to preserve and house materials, and (apart from where a company maintains its own archive, as is usually the case with broadcast stations) an archive should not be regarded simply as "free housing" for materials which can then be withdrawn at a moment's notice.
In the case of permanent withdrawal, some archives seek to gain reimbursement of preservation costs. Where items are withdrawn temporarily, the archive may well seek agreement concerning advance notice, and also to establish a time period by which they must be returned. These are practical housekeeping considerations, but important if the archive is to maintain its collection.
It is appropriate to add here that withdrawing items from archives should not be seen as an automatic right of depositors, particularly if they are deposited as a result of Legal Deposit legislation. Under voluntary deposit, the position is slightly different and consequently the agreements drawn up for deposit should be carefully worded to avoid problems in the future. Even if withdrawal by the depositor is allowed on a temporary basis, there should be clarification as to the conditions of such withdrawals, e.g. repayment for preservation work undertaken at the archive's expense, storage costs. These costs can always be reimbursed when the item is returned to the archive.
a) Contracts drawn up between depositor and archive should clarify the position with regard to any withdrawal options that the company might require.
b) The depositor and archive should each be clearly aware of their financial liabilities when items are withdrawn
c) Contracts should include agreement as to time limits for temporary withdrawal. It may also be advisable for notice of withdrawal of materials to be given to the archive - and this should be included in any legal agreement.
Agreements need to be made as to the future of items should an archive seek to deselect from their holdings. Selection and appraisal in audiovisual archives is an established practice, so it makes sense to provide for the possible withdrawal of items if they are not felt to be of use to the collection (for a variety of reasons) at some future date.
Because there might be a difference of interests between depositor and archive, it is advisable for the archive to make its policies on deselection clear to the depositor at an early stage, preferably at the point of deposit. Subsequently, if and when deselection occurs, the archive will adhere to an already agreed policy regarding the item. This may include an agreement to notify and return the item to the depositor.
a) Establish a policy for deselection of items. This will be formulated according to the needs of the collecting Institution.
b) Establish what, if any, requirements are needed to inform and/or to return the items to the depositor.
c) Ensure that the depositor is aware of these conditions and agrees to them.
Today, the general public and the private researcher are becoming more aware of developments in communications technology regarding remote access to information. The mass storage of information which can be accessed remotely is a technical reality. In addition, the presence of multi-media programmes and electronically-delivered information systems is an indication that such technologies will play an increasingly important role in the delivery of information direct to the user - regardless of location. Multi-media products encompass several different media, each with its own rights. Further rights reside in the resulting multi-media products and much attention is currently being paid to copyright issues in this context. For audiovisual archives, both now and in the future, this will have considerable implications.
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