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IRIS 2001-9:3/3

Adoption of New Convention for Protection of Audiovisual Heritage

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Tarlach McGonagle

Institute for Information Law (IViR), University of Amsterdam

The Committee of Ministers of the Council of Europe recently adopted the European Convention for the protection of Audiovisual Heritage and its Protocol on the Protection of Television Productions. These are the first binding international instruments to deal with such subject matter.

The primary objective of the new Convention is "to ensure the protection of the European audiovisual heritage and its appreciation both as an art form and as a record of our past by means of its collection, its preservation and the availability of moving image material for cultural, scientific and research purposes, in the public interest" (Article 1).

A key concept of the Convention and its Protocol is that of compulsory "legal deposit" with a specially designated (national) "archive body". This obligation is not limited to the mere deposit of a reference copy, but extends to ensuring the preservation of the deposited moving image material. The mandatory requirement of legal deposit is complemented by a "voluntary deposit" with specially-designated "voluntary deposit bodies". While Parties are not precluded from merging their designated archive and voluntary deposit bodies into joint archive bodies, such an arrangement is conditional on the fulfilment of the distinct tasks of each. Whereas archive bodies are concerned, first and foremost, with the protection of moving image material as part of the audiovisual heritage, voluntary deposit bodies are expected to promote such material for cultural purposes.

In order to avoid being left in the slipstream of technological developments, the Convention does not contain any definition of the term "moving image material"; the underlying thinking being that such a technology-neutral approach will not jeopardise its continued applicability for some time to come. Parties are afforded a certain amount of leeway to define for themselves what the phrase "forming part of their audiovisual heritage" actually entails, as long as the chosen definition is neither arbitrary nor discriminatory. All practical details of the obligations of collection, preservation and guaranteeing of availability should also be fleshed out in the national law of each Party.

A Standing Committee shall oversee the operation and implementation of the Convention. As well as playing an interpretative role vis-à-vis the provisions of the Convention, the Committee is empowered to make recommendations concerning the application of the Convention, and to suggest and consider possible amendments thereto. In the pursuance of these duties, the Committee may have recourse to expert advice.

The existence of the Protocol on the Protection of Television Productions can be explained by the preference of the drafters for specific, additional Protocols dealing with "moving image material other than cinematographic works" to complement the general Convention on the protection of the audiovisual heritage.

The 43 Member States of the Council of Europe, other States Parties to the European Cultural Convention, and the European Community will all be eligible to sign the Convention. The Convention will not impose any retrospective legal deposit obligation but the provision for voluntary deposit may apply to works produced before the signature of the Convention.

References
The European Convention for the protection of the Audiovisual Heritage and its Protocol on the Protection of Television Productions, adopted by the Committee of Ministers of the Council of Europe on 19 September 2001, available at: EN
 http://merlin.obs.coe.int/redirect.php?id=158