B Explanatory memorandum
by Mr Jensen, rapporteur
1 Introduction
1. The European Convention on
Cinematographic Co-Production (ETS No. 147) of 1992 entered into
force on 1 April 1994 and has been ratified by 43 Council of Europe
member States. This convention provides a common legal basis governing
the multilateral cinematographic relations of its Parties; it has
also allowed many smaller countries to benefit from a legal framework
for co-productions involving just two parties.
2. Today, as is highlighted by the explanatory report to the
Draft Council of Europe Convention on Cinematographic Co-production
(revised)
Note (hereafter “the revised Convention”),
new technology has modified production, distribution and exhibition
techniques, public funding at national and regional levels has evolved, fiscal
incentives have multiplied and many smaller European countries now
seek to enhance the international activities of their film sectors.
Moreover, the European film industry has become increasingly open
to exchanges with non-European partners. Thus, the revision is intended
to modernise the convention, keeping pace with changes in the landscape
of film production and ensuring its continued relevance.
2 Key elements of the revised Convention
and main changes which are sought
3. The revised Convention does
not modify the main thrust of Convention No. 147. The aim is the promotion
of the official co-production of cinematographic works, in particular
of fiction and animation and documentaries.
4. Audiovisual works remain excluded; this is because, on the
one hand, their production is not usually governed by co-production
agreements concluded between States and, on the other, there is
currently no widely accepted definition of an audiovisual work,
due to the rapid evolution of production and distribution technologies.
5. Concerning scope (Article 2), the revised Convention will
continue to govern relations between the Parties in the field of
multilateral co-productions originating in the territory of the
Parties. It will apply to:
a co-productions
involving at least three co-producers, established in three different
Parties to the Convention;
b co-productions involving at least three co-producers established
in three different Parties to the Convention and one or more co-producers
that are not established in such Parties. The total contribution of
the co-producers who are not established in the Parties to the Convention
may not, however, exceed 30% of the total cost of the production.
6. As already provided by Convention No. 147, in the absence
of a bilateral agreement, the revised Convention will also apply
to bilateral co-productions, unless a reservation has been made
by one of the Parties involved.
7. Cinematographic works falling within the scope of the revised
Convention and meeting the conditions set forth in its Article 5
“shall be entitled to the benefits granted to national films by
the legislative and regulatory provisions in force in each of the
Parties to this Convention participating in the co-production concerned”.
This is the main aim of the co-production agreements: co-produced
works shall be placed on an equal footing with national works and
shall thus have access to the advantages available to the latter,
such as national aids accorded for the production, distribution
and exhibition of films or tax exemptions. They may also benefit
from national rules regarding origin where television and on-demand
audiovisual media services are concerned.
8. Concerning the conditions, there is however an important change:
the “European” qualification of the co-production disappears. Indeed,
the revised Convention aims at enhancing the international activities
of the film sectors; thus, what is relevant is no longer the European
nature of the co-production, but its connection with the countries
Parties to the Convention (including non-European ones).
9. This is also reflected in Appendix II to the revised Convention,
which defines the conditions under which a work can qualify as an
official co-production and provides distinct points scales allowing
for the evaluation of each of the principal types of cinematographic
work: fiction, animation and documentary films. Under Convention
No. 147, the competent authorities may grant co-production status
to a work with a number of points lower than the one required, if
they consider that the work nonetheless reflects a “European identity”. The
reference to “European identity” does not appear in the revised
Convention; the latter foresees, instead, that the competent authorities
may grant co-production status even if the required number of points
is not attained, “having regard to the characteristics of the co-production”.
10. Convention No. 147 foresees a minimum contribution level for
multilateral co-productions of 10% and a maximum contribution level
of 70%. However, in practice, the minimum contribution rate of 10%
has proved difficult to apply in countries where the cinema industry
is relatively fragile and producers cannot raise sufficient finance.
Moreover, participation in higher budget co-productions alongside
experienced partners would allow industry professionals in smaller
countries to gain valuable expertise and establish useful contacts,
as well as to provide helpful financial and creative input.
11. The revised Convention therefore reduces the minimum contribution
rate to 5% and raises the corresponding maximum participation to
80%. Similarly, where the Convention is used to provide a legal framework
for a bilateral co-production and in line with the aforegoing, the
minimum contribution is reduced from 20% to 10% and the maximum
contribution is increased from 80% to 90%.
12. Nonetheless, in the case of a minority contribution lower
than the 20%, the country of origin of the minority co-producer
may take steps to limit access to national co-production support
mechanisms, notably where automatic support is granted irrespective
of the national share in the co-production. Such access may also
be barred where the minimum contribution does not include effective
technical and artistic participation by the co-producer concerned.
13. Article 7 (Rights of co-producers to the cinematographic work)
has been redrafted both to clarify the underlying concept of co-ownership
of the rights to the work and to reflect technological evolution
in the industry. The object of co-production is to establish joint
ownership of all the tangible and intangible property rights necessary
to the production, distribution and exploitation of the cinematographic
work. The co-production contract signed between the co-producers
must clearly specify this joint ownership, as well as the joint ownership
of the physical material of the film, and should provide that the
first completed version of the cinematographic work (“the master”)
be deposited in a place mutually agreed by the co-producers. Each producer
must be guaranteed free access to the “film material” and to the
master.
14. In Article 8 (Technical and artistic participation), the
revised Convention keeps the idea that the recognition of nationality
must be reflected in genuine technical and artistic participation
by cast and crew members from the countries involved, which in principle
should be proportional to the financial participation of the co-producer.
Where these participations are not proportional, the competent authorities
may refuse to grant co-production status to the work in question.
15. However, as in Convention No. 147, Article 9 of the revised
Convention provides for exceptions to the previous rule and allows
for the possibility to grant co-production status if certain conditions
are met. In this respect, the revised Convention replaces the previous
condition “c. help to promote a European identity” with a new one:
“help to promote cultural diversity”. The other conditions are unchanged.
16. Article 10 maintains the concept of overall balance in cinematographic
relations with regard both to the total amount invested and the
artistic and technical participation in co-production cinematographic
work; it allows Parties to insist upon re-establishing balance,
where they have observed a lack of reciprocity in their co-production
relations with a particular country. If a Party, over a reasonable
period, observes a deficit in its co-production relations with one
or more other Parties, it may withhold its approval of a subsequent
co-production until restoration of the balance. The revised Convention
judiciously removes the idea that the approval is withheld by a
Party “with a view to maintaining its cultural identity”. This also
reflects the approach of the revised Convention, which is aimed
at recognising and promoting “cultural diversity”.
17. Appendix I brings the procedure for the awarding of co-production
status by national authorities into line with the prevailing practice:
an initial, provisional phase of recognition of the co-production
prior to shooting is followed by the definitive award of official
co-production status on completion of the film. The appendix lists
the documents required for each phase, though national authorities
may require additional documents as foreseen in national legislation.
18. It is worth mentioning that Article 22 introduces a simplified
amendment procedure for the appendices, taking account of their
technical nature. Indeed, technological and financial evolutions
of the film industry could render some elements of Appendices I
and II of the revised Convention obsolete; therefore the revised Convention
foresees that the Board of Management of Eurimages be permitted
to formulate proposals for the amendment of these appendices. The
Parties would be however entitled to raise objections against any
such amendment and would be subject to it only upon the withdrawal
of the objection.
19. Finally, Article 24 regulates the cases where a co-production
involves a combination of Parties who have ratified the revised
Convention and Parties who have not and are thus subject to the
provisions of the 1992 Convention. In this case, the 1992 Convention
will apply. Only where all the participants in a co-production are established
in States having ratified the revised Convention can the revised
Convention apply.
3 Proposals
for improvements
20. I would like to praise the
work of the experts who drafted the revised Convention. I have however
a major concern: the absence of a proper monitoring system (section
3.1). In addition, I would suggest improving some provisions (section
3.2).
3.1 The
absence of a proper monitoring system
21. It is quite frequent that Council
of Europe conventions include provisions for the establishment of
a monitoring body. To me, the absence of such provisions in the
text of the revised Convention is odd. True, there is no such a
mechanism in the text of Convention No. 147. However, given the
technical nature of issues covered by the revised Convention and
the (acknowledged) need to keep pace with rapid changes in the sector of
cinematographic co-production, the establishment of a monitoring
mechanism would seem not only appropriate, but necessary.
22. In this respect, as mentioned before (see paragraph 18), Article
22 introduces a simplified amendment procedure for the appendices
and entrusts the Board of Management of Eurimages with the core
responsibility to formulate proposals for such amendments. As I
see it, this solution is not sufficient, in particular for the following
reasons:
- not all the States
potentially Parties to the revised Convention are represented on
the Eurimages Board of Management; in addition, this Board, although
highly competent, acts within the scope of the Partial Agreement
and does not work with the whole film industry in all its dimensions
and complexity;
- a proper monitoring body should also be entrusted with
other important functions, in order to achieve:
- better co-ordination and harmonisation
of the implementation of the Convention across countries, notably
by providing for the sharing of best practice;
- the development and analysis of data sets measuring the
level of co-production activity under the revised Convention and
the concrete impact of new provisions therein.
23. I therefore suggest redrafting Article 22. My proposal appears
below (in bold print). The function foreseen in paragraph 7 corresponds
exactly to the responsibility entrusted by the present text of Article
22 to the Eurimages Board of Management. The procedure for the adoption
of the amendments is the same.
“Article 22 – Follow-up mechanism
1. The implementation of the
Convention shall be monitored by a Committee of Experts composed
of one member per Party, nominated by the Party concerned.
2. The Committee of Experts
shall be convened by the Secretary General of the Council of Europe.
Its first meeting shall be held within a period of one year following
the entry into force of this Convention. It shall subsequently meet
annually.
3. The Committee of Experts
shall draw up and adopt by consensus its own rules of procedure.
4. The Committee of Experts
shall be assisted by the Secretariat of the Council of Europe in carrying
out its functions.
5. The Committee of Experts
shall collect and analyse information on the implementation of this
Convention and assess its impact seeking to promote its effective
use and, in particular:
a. to facilitate the exchange between States
of experience and good practice, as well as the exchange of information
on significant legal, policy or technological developments;
b. to identify any problems
that may arise and the effects of any declaration or reservation
made under this Convention;
c. to give advice on any questions
concerning the application of this Convention and to make specific
recommendations to Parties.
6. In order to discharge its
functions, the Committee of Experts may, on its own initiative, consult
relevant stakeholders and professional experts.
7. The Committee of Experts
may, in the interests of ensuring their continued relevance to common
practices in the cinematographic industry, propose amendments to
the provisions of Appendices I and II of this Convention.
a. Amendments
thus proposed shall be communicated by the Secretary
General of the Council of Europe to the Parties;
b. After having consulted the Parties the Committee of
Ministers may adopt an amendment proposed in accordance with paragraph
1 by the majority provided for in Article 20.d, of the Statute of
the Council of Europe. The amendment shall enter into force following
the expiry of a period of one year after the date on which it has
been forwarded to the Parties. During this period, any Party may
notify the Secretary General of any objection to the entry into
force of the amendment in its respect;
c. If one third of the Parties notifies the Secretary
General of an objection to the entry into force of the amendment,
the amendment shall not enter into force;
d. If less than one third of the Parties notifies an objection,
the amendment shall enter into force for those Parties which have
not notified an objection;
e. Once an amendment has entered into force in accordance
with paragraphs 1 to 4 of this Article and a Party has notified
an objection to it, this amendment shall come into force in respect of
the Party concerned on the first day of the month following the
date on which the Party has notified the Secretary General of the
Council of Europe of its acceptance of the amendment. A Party which
has made an objection may withdraw it at any time by notifying the
Secretary General of the Council of Europe;
f. If the Committee of Ministers adopts an amendment,
a State or the European Union may not express its consent to be
bound by the Convention without accepting at the same time the amendment.”
3.2 Other
proposed changes
24. I have a few other proposals,
which I hope will be considered constructive. They are the following.
25. Include in the preamble a reference to the Council of Europe
Framework Convention on the Value of Cultural Heritage for Society
(CETS No. 199, “Faro Convention”) and strengthen the idea that film
has a role also in upholding openness between cultures and dialogue.
The proposals appear below in bold print:
“...
Considering that fostering the cultural diversity of the
various European countries is one of the aims of the European Cultural
Convention and that the Council of Europe
Framework Convention on the Value of Cultural Heritage for Society
(Faro, 27 October 2005 – CETS No. 199) recognises the role of cultural
heritage in the promotion of cultural diversity;
Having regard to the UNESCO Convention on the Protection
and Promotion of the Diversity of Cultural Expressions (Paris, 20
October 2005), which recognises cultural diversity as a defining
characteristic of humanity and strives to strengthen the creation,
production, dissemination, distribution and enjoyment of cultural
expressions;
Considering that cinematographic co-production, as an
instrument of creation and expression of cultural diversity on a
global scale, should be reinforced;
Aware that film is an important means of cultural and
artistic expression with an essential role in upholding the freedom
of expression, diversity and creativity, as well as openness between cultures, mutual understanding
between people within countries and across borders, dialogue and democratic
citizenship.
...”
26. Paragraph 10 of the preamble also appeared in the preamble
of Convention No. 147; however the text preceding this paragraph
has been changed and the initial sentence “Resolved to achieve these
objectives thanks to a common effort to foster cooperation …” refers
to “objectives” which are no longer in the preceding paragraphs.
To achieve better co-ordination, I suggest deleting the words “achieve
these objectives thanks to a common effort to”; the paragraph would
then read as follows: “Resolved to foster co-operation and define rules
which adapt themselves to cinematographic co-production as a whole.”
27. Redraft Article 5.3 as follows: “Projects of a blatantly pornographic
nature or those that advocate discrimination,
hate or violence or openly offend human dignity cannot
be accorded co-production status.” This addition is intended to
explain the factors (correlated with violence and offences to human
dignity) which the Council of Europe is firmly determined to combat
in all their forms.
28. Redraft Article 9.c as
follows: “help to promote cultural diversity and
intercultural dialogue, and to uphold shared fundamental values;”. This addition is intended to
clarify and widen the scope of the exception; the reference to cultural
diversity sounds too limited if not coupled with the idea of dialogue
and adherence to our common values.
4 Conclusions
29. I consider that the Assembly
should welcome the initiative to revise Convention No. 147 and commend the
approach and principles inspiring the draft revised Convention:
it is certainly appropriate to reflect in the text the ambition
to open the Convention to non-European countries, to update the
common legal framework building on economic realities and common
practice in the sector and to move from the rationale of safeguarding
national identities and promoting a monolithic idea of the “European
identity” to the rationale of recognising the multifaceted nature
of Europe and of encouraging cultural diversity and intercultural
dialogue. In this respect, the revised Convention would enhance
Convention No. 147 and uphold cinematographic co-productions in
both their economic and cultural dimensions.
30. The proposals for amendments which are included in the draft
opinion correspond to those that I have sought to justify in the
previous section; they are intended to strengthen the effective
implementation of the revised Convention – and therefore its value
for all the partners – through the establishment of a proper monitoring
mechanism, to highlight its cultural dimension and to correct a
technical issue.
