FORWARD: The rights assessment of films
In recent years, there has been an increasing tendency of audiovisual archives to make their film heritage accessible through publication on various online platforms. A complicated part of this process is the rights assessment of film works. Many older films, produced before 1940, are orphan works. This means that they are copyright protected, but the rights holder(s) cannot be identified and/or located. In Europe, hundreds of thousands of orphan works are preserved in film heritage institutions. What are they to do with these orphans? In 2012, with a new European law, the Orphan Works Directive, the EU has made an exception to the copyright. If a film heritage institution cannot find the rights holder(s), it can still make use of the orphan work.
Within the FORWARD project, involving the national film archives from 10 European countries, The EYE Filmmuseum has made an important leap forward in tackling the rights assessment issue. With the help of a sequence of questions (we call this the decision tree) the rights status of film works can be determined in a systematic way. Through the performance of a diligent search- for which a long list of sources and databases is available- we try to find the creative makers and their life dates on which the protection term is based, and other possible rights holders. If the film results to be an orphan work, we register it with the orphan database of the European Intellectual Property Office. After that, the Cultural Heritage Agency of the Netherlands declares the film work officially orphan. With this declaration, as a non-profit institution EYE is allowed to publish the film online.
In the last seven months of the FORWARD project the new program for rights assessment made it possible for me, as a film scholar without a juridical background, to clear the rights for 750 films. A part of those resulted to be orphan works, others turned out to be in the public domain or the rights holders were found. To give an idea of the practice of rights assessment, I will give an example of three different films I researched, with three different outcomes. It shows that the rights assessment can resemble the work of a detective in some cases, but can also be very simple in other cases.
1. Gouvern. proefrijstbedrijf 'Selatdjaran' Palembang
A special part of EYE’s collection consists of films that were recorded in the former Dutch East Indies. Gouvern. proefrijstbedrijf 'Selatdjaran' Palembang is a short documentary film from around 1922, which is, as the title already shows, commissioned by a government company. It shows the modernization of agriculture techniques that were used in the rice company Selatdjaran.
First of all, the question is: who are the creative makers? In the Dutch copyright law, there are four so-called ‘protection term roles’ on which the protection period of 70 years depends: the director, the composer, the screen writer and the dialogue writer. The credits of this film reveal the names Charls en Van Es & Co, Weltevreden (present-day Jakarta). From our Collection Database (CE), I learn that they are the directors and that they owned a photo studio together.
For the diligent search, I need to find their full names, which helps to find their birth and death dates. Because the film was made in the Dutch East Indies and Charls and Van Es were photographers, I search for them in the database of the Dutch Museum of World Cultures. This museum appears to have their photos in its collection and a copy of an article about the photo studio from the Bataviaasch Nieuwsblad of May 14, 1934. This article gives a historical overview on the occasion of the photo studio’s 50th anniversary. It notes that Charls and Van Es handed over their studio in 1920 to two gentlemen, named Theobald and Kraus.
Even though Charls and Van Es are on the film credits, in practice the company was thus run by others, of which we can assume they also made the films. These new photographers turn out to be hard to find. I find the most on mister Theobald: His complete name is Heinrich Theobald and he was born 26/1/1883 in Frankfurt. In 1913, he married a girl ten years younger than him from The Hague, named Maria Theresia Schipperijn. According to a newspaper from the Dutch East Indies, in 1942 she settled alone in Surabaya. Did Heinrich Theobald die before? Did they divorce? Or was he interned in a Japanese camp? These questions remain unanswered; I cannot find anymore traces of him.
Mr. Kraus remains almost a complete mystery. I only find a few advertisements with his name in it from the 1920’s and 30’s from the photo studio.
Because this is a company film, the company is assumed to be the rights holder. On Delpher, an online directory which contains the digital archives of millions of texts from Dutch newspapers, books and magazines, I find an article from 1923 that describes the liquidation of the Proefrijstbedrijf. From this diligent search we can conclude that the makers could not be located and the rights holder has ceased to exist. We do not know whether the rights were transferred. The film can thus be considered an orphan work.
Glasconserven consists of silent documentary footage from 1946 directed by Herman van der Horst and Allan Penning in which we see, among other things, the work in a glass factory. I cannot find the film title in Bert Hogenkamp’s book De Documentaire Film 1945-1965, but our Dutch collection specialist, Rommy Albers, tells me that this is working material for the film Rotterdam aan den slag, which was released in the same year. Working material has the same legal status as the published film. EYE owns two copies of Rotterdam aan den slag, but in the database of Beeld en Geluid (the Netherlands Institute for Sound and Vision), which also has many documentaries in its collection, I find that they have a copy as well. Of the well-known director Herman van der Horst, the birth and death date are submitted in CE- he died in 1976-, but of Allan Penning these dates are missing. I find his death announcement on Delpher, dating the 6th of June 1957. The term of 70 years hasn’t passed yet, so we know that the film is in any case copyright protected.
The next step is to find out who the rights holders are. Because this is a commissioned film- just as is the case in the previous example- the rights holder is usually the commissioner. Rotterdam aan den slag is part of a series of short documentaries about the rebuilding of the Netherlands after WWII. It could be described as a propaganda film commissioned by a government committee for public works. Beeld en Geluid acquired its copy of this film from the RVD (the Netherlands Government Information Service) and also manages the RVD’s film rights. Therefore we know that this film is copyright protected (needless to say, we cannot post a digital copy of the film here) and we have located the rights holders.
3. Gloria transita
The third and last example I will give here, is also the easiest search. This silent feature film from 1917 about a street singer who made a short career as an opera artist was directed by Johan Gildemeijer, a cinematic jack-of-all-trades, who was also responsible for the screenplay and the production. It was a silent film, but the famous opera fragments that were shown in the film were sung by a choir behind the screen. Information about the film can be found in Geoffrey Donaldson’s famous book on silent film, Of Joy and Sorrow, and in CE, which also mentions that Gildemeijer died on the 31st of January, 1945. The protection term of 70 years has thus passed, so the film becomes a part of the public domain.