Audio Visual archives operate within a framework of contractual and copyright laws.
We are in the midst of an intellectual property gold rush. Thousands of fortune-seekers are trying to stake their claims to promising territory, existing claims-holders are seeking increasingly aggressive means of defending their claims, and the original owners are often being ignored. Scholars and enthusiasts whose work uses intellectual property, and archives and libraries that store it, are largely bystanders in this goldrush; but they are profoundly affected by it. In this paper the author is going to discuss the notion that audiovisual archives operate within a framework of contractual and copyright laws.
DEFINITION OF TERMS
The web definition of the word copyright is the exclusive and assignable legal right, given to the originator for a fixed number of years, to print, publish, perform,film or record literary, artistic, or musical material. Audiovisual archives according to Mutangira V (2011:4) refers to either the institution that keeps archives in audiovisual media, or a collection of audiovisual holdings at an institution. They encompass moving images both film and electronic, audio-slide presentations, radio and television, still photographs, video games and anything projected on screens. Mutangira V (2011:5) says audiovisual archive can also mean the field which embraces all aspects of the guardianship and retrieval of audiovisual documents, the administration of the place in which they are contained and the organization responsible for carrying out such functions.
It is indeed true that audio visual archives operate under sound legislation. According to Kofler (1991:i-2) many countries have laws about importing and exporting audiovisual material.These are concerned mainly with ways of waiving or imposing taxes, but not with the collection and preservation of the national heritage From a survey conducted by Kofler (1991) what is evident in most countries is that either there is no legislation at all for audiovisual archive operations, or the fragile threads of general legislation that may exist are piecemeal and applied second hand and often improperly to audiovisual materials.
The overall conclusion by Kofler (1991) is that there is a need for comprehensive legislation from the very moment an archive is planned or created. This legislation should: refer to all pertinent international and regional conventions; take cognizance of the Unesco Recommendation, citing it where appropriate; provide the statutory basis for the creation of a national archive, its financial support, its responsibilities and obligations including legal deposit, copyright in its widest sense yet also providing for access to and copying of audiovisual archival material etc.; relate the above to the ultimate objective of collecting, safeguarding and preserving the cultural heritage in audiovisual form.
There is a need for a law which protects performers when it comes to the management of audio visual archives .According to Seeger (1992) there is a need for a law which protect performers in the management of audio visual archives. Performers’ contracts encompasses a process and protection for both sides of the agreement. The process ensures that both sides agree on issues ranging from ownership of rights to compensation before production commences; protection ensures that the expectations of both sides can be satisfactorily met. Before commencing with an overview of specific aspects of performers’ contracts, it may be worthwhile to briefly examines why performers need contracts; the question of who is a performer and whether all productions are created equal; the relationship between neighboring rights and contracts; the difference between contracts and collective agreements; and the international nature of audiovisual production.
According to Sand (2012) to transfer rights, the artist must possess the rights to the performance. This may not always be the case. A performer might record material belonging to another group, and thus not have the rights to transfer to the collector. The artist recorded must be able to transfer to the collector the rights he or she requires for his or her project. A law must protect these rights.
The collector needs to have the artist agree to not only make the recording but also to agree transfer to the collector the rights needed for his or her purposes. This usually means "for personal research use," but should also include "to deposit into an archives for preservation and future consultation." It would be wise to include "and for publication in print, or other media" as well. If the conditions are not agreed to, either in print or on the recording itself, it is often difficult to get them later. The collector should also find out if the person being recorded is able, within the local knowledge system, to give the rights granted with the recording. The collector should also note reservations--such as "people can listen to this song, but it can't be used for profit, because our church doesn't allow that" or "you can't publish this without coming back to me for permission." These restrictions should be noted when the recording is made, and noted when it is transferred to any institution or individual. All these requirements must be protected in an Audio visual archives law.
The other law controlling the management of audio visual archives is the Copyright and Neighboring Act. According to Matangira V.(2011:54) copyright, is the right to copy,is the mechanism for regulating the control and exploitation of intellectual property.It recognizes that the curator of an artistic or literary work has a right to control its subsequent use and duplication, including its commercial exploitation, for a defined period.In many of the cases, the archives holds custody, public access and viewing rights, but not copyright.
The principles enshrined in copyright is that creators of audiovisual works should enjoy the benefits of creation and legally protected against unfair exploitation of their works by others. This arrangement also gives the creators the right to license certain restricted acts such as copying, public performance and broadcasting.
There is also the issue of moral, access and privacy. These rights impinge on the concept of intellectual property. The moral right of access to a public collection may or may not have legal force but is usually assumed to exist. Questions of whether citizens have the right of free access to national heritage are often raised. In most cases laws exist to regulate access and privacy to audiovisual archives.
There is also the issue of legal deposit. Mutangira V (2011:55) says the legal deposit principle ensures that printed materials including audiovisual archives must be deposited with the national archives institution as a national heritage. However, because of high production costs in many of the audiovisual media, the procedures tend to resist mandatory legal deposit, but some do appreciate the benefits of archiving for the future generations.
The author had discussed throughout the paper that audiovisual archives operate within a framework of contractual and copyright laws.The author had mentioned the copyright and neighbouring rights act, the issue of contracts, the issue of intellectual property laws, the issue of legal deposit, the issue of public rights such as the moral, access and privacy have been discussed as framework and contractual and copyright laws controlling the management of audiovisual archives
Matangira V,2011,Management of Audiovisual Archives, Harare,Zimbabwe Open university
Sand K,2012, Review of Contractual Conservation in the Audiovisual Sector,WIPO
Seeger C., 2004,Intellectual Property and AudioVisual Archives and Collections, Los Angeles, University of California,
Koffler B,1991,Legal Questions facing Audio Visual Archives, Paris, UNESCO
Etiwel Mutero holds a Bachelor of Science Honours Degree in Records and Archives Management through the Zimbabwe Open University and a National Certificate in Records and Archives Management from Kwekwe Polytechnic.You can contact him on 00264817871070 or firstname.lastname@example.org