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1.11 UNESCO AV Copyright meeting report. December 5-6 1994

Helen P Harrison, rapporteur of meeting

The Round Table on Audiovisual Records (a group of UNESCO NGOs) entered into a contract with UNESCO: "To Organise, in close collaboration with UNESCO's General Information Programme, a workshop to examine legal restrictions affecting access to audiovisual archives including consideration of policies of access, legal deposit, the preservation of materials and the protection of rights.

The main objectives of the workshop were to update and discuss strategy based on the recommendations of the report prepared by Birgit Kofler, PGI-91/WS/50 (See Section 1.8 for details of findings of this report) to determine changes in legislation necessary to permit audiovisual archives to function: to co-ordinate information from the various groups involved in audiovisual archival bibliography."

The meeting was attended by 14 representatives of the organisations: FIAF, FIAT, IASA, ICA, IFLA, IFPI, Council of Europe, UNESCO. The chairman was Wolfgang Klaue, ICA/PAV and Rapporteur: Helen Harrison, IASA.

The agenda for the workshop stated the purpose and objectives:

Purpose: To examine the legal restrictions affecting the access to AV archives, including a consideration of:

- policies of access
- legal deposit
- preservation of av materials
- protection of rights

Objectives: To update and discuss strategy based on the recommendations of Birgit Kofler's report (PGI 91/WS/5)

- to determine changes in legislation necessary to permit AV archives to function
- to recommend future actions towards solving the legal problems of AV archives

The UNESCO representative on the Round Table, Joie Springer noted that the origins of the meeting could be traced to the adoption of the Recommendation for the Safeguarding and Preservation of Moving Images by the 21st General session of the UNESCO General Conference in 1980. The recommendation was intended to be the basis on which audiovisual archival activities would be built. It is however, not binding in character and Member States are therefore not obliged to institute any measures for safeguarding their heritage.

Following a survey in 1984 to assess the impact of the Recommendations in UNESCO Member States, it was revealed that most countries had no legislation for establishing audiovisual archives or for the deposit of films or video materials. This was partly attributable to the fact that the concept of audiovisual archiving was a relatively new one and not many countries were aware of the need to safeguard the heritage either by preventing its destruction, or by way of voluntary deposit.

The decision was made to prepare model legislation or guidelines that could be adapted to individual country requirements. These were published by UNESCO in 1991 as "Legal questions facing audiovisual archives". This workshop will discuss the report to determine what updates are necessary and how best to ensure that legislation for the preservation of the moving image heritage is adopted by all countries.

In addition to the model law, work has also started on preparing a study of comparative legislation in different countries. The report which resulted has not been published because the number of countries providing information was judged inadequate to be truly representative. Since then, political changes have occurred in several countries around the world and may have affected the findings of that time. The workshop may wish to examine the study and decide if it is necessary or desirable to complete it, and if so how this should be done.

The overall objective of the workshop is to examine the main restrictions affecting moving image holdings in archival institutions with the ultimate goal of defining a strategy to allow access to the materials whilst ensuring their preservation and safeguarding the rights of owners.

Legal and ethical aspects concerning the transmission of information is a topical issue and was reiterated by several delegates during the recent meeting of the intergovernmental council of UNESCO's General Information Programme. As we all know many groups are currently considering the legal aspects of the dissemination information and UNESCO hopes that this meeting will provide the focus for bringing these groups together so that closer collaboration and a more harmonized approach will eliminate duplication of effort and waste of resources.

The following are some of the problems that will have to be addressed:

1. establishing the statutory basis for the preservation of the moving image heritage in all countries by the designation or creation of an institution with this clear mandate
2. allowing archival institutions the right to preserve, copy and provide access to the materials in their collections under predefined conditions
3. ensuring that suitable copies of moving images produced, distributed and/or disseminated in all countries can be both preserved and made available for use by future generations.

Legal Deposit of AV records.

It was emphasised that the main aim of the meeting was to consider the legal aspects of deposit, preservation and access rather than the entire subject of copyright, and to examine the legal restrictions which affect access to audiovisual archives, to examine the conflict between access and preservation and the protection of rights in the materials.

What is the primary aim of legal deposit? or even voluntary deposit by non-legal agreement if one can have such a thing. Is legal deposit in fact the answer, or the only answer to the issues involved?

In the context of this workshop legal deposit or deposit by agreement has as its primary objective the collection and safeguarding of the cultural heritage of a nation, region or the world. The cultural record can be collected and protected within an archive, library or any institution with responsibility and retained for later purposes of access and use. It helps to ensure the continued existence of the cultural heritage and the materials on which they are recorded - in whatever format, textual, visual, audio and it is the last two of these which concern us here - visual and audio.

The formats or materials which carry this audiovisual information are increasing in complexity as well as converging in their technological presentation. We also have to take into account the impact of the 'multi-media' technologies and the increasing use of electronic transmission of information and its relative ease of access in considering copyright issues.

Legal deposit may help ensure the continuation of the material and heritage, but what happens when it becomes accessible on a Superhighway. How does that affect the status of the material and its legal deposit in a particular institution. The increasing use of electronic transmission has to affect our view of the context and meaning of legal deposit which implies an object - not an airwave or chunk of electronic information.

The next point to address is the world situation concerning audiovisual legal deposit. How far have we come? Since the Kofler report of 1991 some countries have introduced the concept - but it is still a piecemeal situation as described in the report.

We also have the Belgrade Document or the UNESCO Recommendation for the Safeguarding and Preservation of moving images (1980) one of the few examples of a concentrated effort to address the problems of audiovisual records from the legal deposit angle as only one of its objectives. What impact have these recommendations had? Should we perhaps be considering drawing up a convention for safeguarding the audiovisual cultural heritage by increasing and improving legal deposit legislation?

Surveys have been carried through on the situation of legal deposit and are included in the Audiovisual Archive Bibliography, published by UNESCO in 1991.

The Kofler document on Legislation on AV Archives in selected countries addresses the problems but is incomplete and already needs updating and amendment as an information document. And the Kofler report itself with the Model Law - always intended as proposals or guidelines for legislation - needs to be examined and updated in the light of technological development which has been mentioned already. The increasing complexity of carriers, the convergence of the technologies and the increase in electronic transmission of the information.

The next issue to be addressed is the concern of the AV industry about the deposit of materials. In darker moments we may wonder if they are concerned at all or only interested in today and the commercial return on their property, but some commercial organisations have their own archives, television and radio broadcasting stations maintain material within their own corporations and enter agreements with national film, television and sound archives to deposit valued material.

a) The rights of creators and users have to be respected and most importantly
b) The agreement of industry to cooperate in safeguarding material has to be ensured.

The latter is not a question for this workshop, but once we have decided what we as collectors and preservers of audiovisual materials and information need, the industry will have to be involved and their interest and cooperation sought.

Once we have decided upon pursuing legal deposit we have to look at the practicalities of what should be deposited and the mechanisms involved.

i) First need to identify the 'publishers' and titles we are considering for deposit

ii) Next we need to establish legislation for deposit. This is the mechanism and may be the most difficult part of the exercise.

iii) We need to decide what should be deposited, and here the RAMP studies on appraisal could be of assistance - although some may be outdated and need amendment. Should collection be comprehensive or selective and what criteria should be used. What constitutes a publication - often in the av world unpublished material acquires an equal importance to published work. What about broadcast programmes, multi-media, electronic data and electronic transmission.

iv) Under what conditions should deposit be made. This has to be considered from the point of view of

a) the depositors and of
b) the users for access

v) Legal enforcement of deposit should also be considered. How can this be achieved?

Finally some practicalities will affect any legislative process.

There are countries with a large output and others with a more limited AV output. This is bound to affect legislative procedures.

The cost of deposit may be high when it involves laboratories and other expense to provide suitable copies for preservation. Where will the funding come from?

Coordination of effort of existing deposit collections is needed.

Deposit is inevitably linked with access and we cannot ignore the developments of superhighways and how these will affect the situation and the legislation.

The bones of the issue can be summarised:

1. Is legal deposit the only answer and if not what are the alternatives
2. How do we encourage legal deposit
3. How can we achieve legislation to ensure legal deposit
4. Need to encourage industry to cooperate to safeguard the av heritage.

We have a good report in the Kofler work which although it needs updating in the light of developments hardly needs rewriting. It is a useful starting document. (See Section 1.8 for conclusions and arguments of the report).

In summary of the meeting the Chairman acknowledged that this was a first major debate of the audiovisual archives discussing the legal problems faced by audiovisual archives, and as such we could not expect to have decisions or answers to the problems addressed. We need to identify the problems and pursue the discussion.

Proposals which arose from the meeting:

1. There should be a joint study of legal problems facing audiovisual archives. Kofler's study can be used for guidance, but the new study should not be a rewriting or updating of the Kofler study.

2. A long-term strategy is needed to reach international agreements for audiovisual archiving. It is recognised that this will be a long process. The workshop also recognised that trying to alter national and international laws will take time, and be piecemeal, and even a Convention could be difficult to achieve, judging by past experiences. Rather the associations should be looking towards producing guidance based on identified problems, and trying to influence conventions and legislation wherever possible. But first we need to come to some agreement about what the audiovisual associations require from legislation.

3. Strategy needs to be co-ordinated in several areas:

- Agreements with rights holders
- Agreement among the audiovisual associations
- Conventions and international agreements
- Regional or national conventions

4. The debate needs to be continued to achieve a unanimity of purpose, and the av associations should try to unite to achieve their purpose and develop a joint concept and approach to legal issues and legislation. We need a more precise debate based on the particular position of each association.

5. Clear legislation is required to state what audiovisual archives are authorised and obliged to do.

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