Transcript PUBLIC SERVICE BROADCASTERS* PERSPECTIVE : RAI

Clearance of rights for availability on demand of heritage feature films
RAI CINEMA EXPERIENCE
DIFFICULTIES IN RIGHTS CLEARANCE FOR FILMS
FIRST QUESTION: ARE FEATURE FILMS STILL COPYRIGHT PROTECTED?
COPYRIGHT PROTECTED WORKS
SECOND QUESTION: WHO ARE THE RELEVANT
RIGHT HOLDERS ?
Need of harmonization of national legislations:
who is/are the author/s of a feature film? Risk of
caos in absence of uniformity in the european
legal framework and impossibility to find
common best practices to make available AV in a
pan-european perspective.
PUBLIC DOMAIN FILMS
Problems: harmonization of national legislation
about films fallen in public domain before the
unification of the term / clearance regarding
creative works related to them, as music or
literary works / when a work is in public domain
in its own country, shall be considered in public
domain in all the other MS ?
Clearance of rights of feature films
RAI CINEMA PRACTICE
METHODOLOGY OF THE RESEARCH:
If a film is not in public domain according to Italian Law, every exploitation must be authorized by all the
relevant right holders (AUTHORS
PRODUCER). A due diligence research implies the need to examine all
the contracts concluded between authors and producers: for old films it’s very difficult to find out all the
written contractual agreements, if any).
PRAGMATIC SOLUTION: Due to Art.45 of Italian Intellectual Property Law, which espressly
states that the exercise of the exploitation rights on cinematographic works belongs to
producers (PRESUMPTION), RAI CINEMA operates on the basis of a complete and continous
chain of rights that strictly leads from Licensor to the original producer. However, in every case
of a fragmented chain of rights, RAI CINEMA simply cannot proceed with any economic
exploitation of the work (almost 10% of films)
For Italian Films, a proper source of research, in case of a lack in the chain of rights, is
represented by the Public Film Register held by SIAE (only Italian feature films).
PROBLEMS: RISK OF CLAIMS BY AUTHORS/NO ACCESS TO RAI CINEMA FOR CITIZENS OUTSIDE
ITALY.
SOLUTIONS: CROSS BORDER RIGHTS CLEARANCE NEED TO BE FACILITATED / NEED TO CREATE A
DIGITAL EUROPEAN DATA BASE NETWORK IN ORDER TO ACCESS ON LINE RELEVANT
INFORMATIONABOUT AV WORKS
Clearance of rights of heritage feature films
FAIR USE UTILIZATIONS
LIMITATIONS/ EXCEPTIONS TO COPYRIGHT:
public interest prevails on the private
interest of rightholders
art.5 Directive 29/2001: a prior authorization by right holders is not
necessary for partial utilizations of creative works (also film).
PROBLEM: Exceptions & Limitations not harmonized in EU Law / no
legal certainty of cross – border access
Art. 70 of Italian Intellectual Property Law: excerpts or parts of audiovisual works shall be
communicated to the puclic for purposes as criticism or review (not expressly limited to “non
commercial use”), in a manner that such utilizations shall not be concurrent with and detrimental to
the commercial exploitations of the same works by legitimate right holders; it’s also permitted the
use of excerpts of works for the sole purpose of illustration for teaching or scientific research, but
in such cases only for non commercial use.
Such exceptions cannot allow for any sort of exploitation of the AV in their entirety.
As a result of the lack of certainty , the availability on line of fragments of the audiovisual works is
limited (geo- blocked) to the Italian Territory.