Este artículo fue escrito en mayo de 2004 como requisito para la materia Film and TV Finance en DCU. En él se discute la necesidad de la nacionalidad de las películas y el problema de su determinación. Esta primera parte considera la necesidad de asignar una nacionalidad a una película. Se muestra que más que un criterio de identificación (como pueden ser también el año o el nombre del director) la asignación de la nacionalidad a las películas se relaciona con asuntos legales y de soporte financiero. Se introduce el concepto de Certificado de Nacionalidad (y sus equivalentes) y se comenta la diferencia fundamental entre películas nacionales y asimiladas a nacionales con base en instrumentos jurídicos regionales y de países individuales de Europa y América Latina.
[…] With the increasing number of co-production or international distribution deals, the legal nationality of films has become less relevant to the critical observer, than the cultural origin that inspired its making. (51st Berlin International Film Festival: Competition)
Thus were officially presented for the first time the 24 feature films selected to compete for the Golden and Silver Bears awarded by the jury of the 51st Berlinale, which took place between the 7 and 18 February, 2001.
This essay examines both the legal and cultural origin definitions and issues surrounding the concept of the nationality of films, particularly multi-national co-productions, attempting to assess to what extent can legal and cultural considerations be as easily separated or whether they are mutually dependent, and the implications of contemporary co-production systems in the films that get made, the way those films are made, and their distribution and exhibition perspectives.
The legal framework for the determination of the nationality of films, with special attention to the notions of ‘national’ and ‘assimilated (to national) film,’ is presented in the first part with a comparison between the criteria established in European1 and Iberian-American regional co-production agreements (as applied by funds like Eurimages and Ibermedia), and their interpretation and application in specific national contexts.
The final part discusses two particularly relevant examples of co-productions that touch on the advantages and difficulties of multilateral co-production schemes in the production and distribution of culturally-relevant, economically-viable films.
The problems arising from the definition of the nationality of films are described in the rationale for Identification of Films in the LUMIERE Database homepage, in which nationality is one of the criteria used for identification:
defining the nationality of a film is a complex task. There is no international or even European definition of the criteria on which a film's nationality is based […] This is not only a legal problem, but also a statistical one: […] countries involved in a joint production are not always indicated (even when the main coproducer is from another country). Different national records - and the statistics on which they are based - can show the same film as having a whole range of nationalities.
They claim to have opted for a ‘pragmatic approach’:We thought that all coproducing countries should be listed in the database in a standard way, so we decided to classify them in order of importance (whether known or assumed).
Although it is not made explicit, this order of importance is ultimately of a financial nature: i.e., the list of the countries of the producing companies, enumerated according to the amount of money invested in a film. This apparently apt solution to the legal problem of nationality is, however, insufficient when further considerations of language and artistic and technical participation2 are taken into account, and can even become irrelevant or contradictory when the ‘cultural origin that inspired its making’ is considered.
But before going any further trying to answer what is the nationality of films lets go back one stage to the fundamental (unasked) question: why do films need a nationality? For the common spectator, as opposed to Berlin’s critical observer; as well as for Databases such as LUMIERE or the IMDB, the nationality of a film is simply one of a number of identification criteria, essentially not more relevant than the original title, the year of production, or the name of the director.
From a production and legal perspective, however, as Michel Gyory explains in his study of the issue for the European Audiovisual Observatory (2000),
The importance of the nationality of a film now resides in the fact that public support to the film industry, be it in the form of direct financial support (subsidies, loans, etc...), tax advantages, compulsory investment in film production or quotas of films or programmes, depends in each country on the nationality of a film, as these advantages are reserved for national films and films assimilated to national films.
In fact, the nationality of films is officially attested in ‘Certificates of Nationality,’3 or similar official documents issued by Audiovisual bodies like the Creative Industries Division of the Department for Culture, Media and Sport in Britain, the Cinematography Direction of the Ministry for Culture in Colombia, or the MPAA in the United States.
In general, the considerations for certifying national films and films assimilated to national films can be divided in financial, artistic and technical participation, and cultural interest. It is important to clarify the difference between national and assimilated to national films. In its simplest definition, national films are films made by one or more production undertakings (companies or individual producers) established in the same country and with a majority of capital, cast and crew from that country, whereas assimilated to national films are bi- or multi-national co-productions in which the financial, creative and technical (and also thematic and cultural) participation of the country is such that it may be effectively regarded as a national film for legal and support purposes.
In practical terms, a national film is often defined, in relation to the definition of co-productions examined below, as a film that exceeds the limits of majority participation for any one party in a co-production. Nevertheless, in spite of the different bi- and multi-partite co-production agreements signed, each country has its own definitions and regulations regarding the certification of national films.4
A good example is the Colombian ‘Certificación de nacionalidad colombiana de las obras cinematográficas,’5 mandatory prior to application for any stimulus or incentive in the country. It is issued to projects that satisfy the following legally determined financial, technical and artistic participation conditions:
- Minimum 51% Colombian capital. - Minimum 51% Colombian technical personnel. - Minimum 70% Colombian artistic personnel. Under its current interpretation and regulation, the two last items are dealt with in the following manner:- The minimum artistic participation consists on the director and two actors or actresses in leading or supporting roles, or two actors or actresses and two of the following persons: Director of photography, art director of production designer, author (s) of the script or screenplay, composer, editor, and, for animated films, lead animator.
- The minimum technical personnel participation is two of the following persons: Sound technician, camera operator, camera assistant, lights technician, script, mix technician, make-up artist, costume designer, set designer, and casting director.
Most countries have established similar quota or point systems, which may also include considerations of language, locations of studio and exterior shooting, places of postproduction, and more or less clearly defined cultural or ‘towards the advance of the national cinematographic art’6 considerations.
At an European level, the Council Directive of 15 October 1963,7 implemented to ensure free circulation of films “having the nationality of a member state,” outlines a series of requirements regarding the language of the film, its authors (director, adapter, script and screenwriter and composer), production undertaking, places of shooting, and staff (called creative collaborators, it includes actors and actresses and heads of department).
Films assimilated to national films are usually defined in the same legislative instruments as national films, but their definition is often, if not identical, at least consistent with definitions put forward in international film co-production agreements. Two of the most important, in terms of the number and size of the population of the signatory parties are the European Convention on Cinematographic Co-production8 (1992), currently signed by 37 and ratified by 32 authorities of the Council of Europe, and the “Acuerdo Latinoamericano de Coprodución Cinematográfica”9 (Latin-American Cinematographic Co-production Agreement, 1989), subscribed by Argentina, Brazil, Cuba, Ecuador, Mexico, Nicaragua, Panama, Peru, Dominican Republic, and Venezuela in the framework of an Iberian-American Treaty (“Conferencia de Autoridades Cinematográficas de Iberoamérica, (CACI)”) that also includes Bolivia, Colombia and Spain.
The aims of the European Convention are:to promote the development of European multilateral cinematographic co-production, to safeguard creation and freedom of expression and defend the cultural diversity of the various European countries.
Under the Convention regulations, a work is given co-production status if it involves at least three co-producers, or two co-producers and a distributor established in three different parties of the convention (with the possibility of participation of non-convention party co-producers, provided that it does not exceed 30% of the total cost of the project), each contributing a minimum of 10% and a maximum 70% of the total cost, and if it meets the definition of a European cinematographic work, achieving at least 15 out of 19 points in a system that weights the European participation dividing the project in three groups: Creative (Director, 3 points; Scriptwriter, 3; Composer, 1), Performing (by number of days worked, First role, 3 points; Second, 2; Third, 1), and Technical and Craft Group (1 point each; Cameraman, Sound recordist, Editor, Art director, Studio or shooting location, Post-production location).
The Convention also covers the right of each co-producer to co-ownership of the negatives, the general balance of investments, measures to facilitate the production and export of cinematographic work and supplementary rights of the producers, i.e. to demand a final version of the cinematographic work in the language of their country.
The Latin-American agreement aims at “contributing to the cultural development and identity of the region through cinematographic activity,” “promoting the audiovisual development of the region, particularly in countries with insufficient infrastructure,” and “assisting the effective progress of the film community of the Member States.” Formally, it is an almost identical transcription of the European Convention, structured in the same way and, except for minor modifications, it includes similar definitions of co-production films and gives the same rights of the co-producers.
___________________________ 1 Also including the concept of European film. 2 From a legal perspective. 3 In the UK. 4 Gyory (op. cit.) offers a very detailed comparative analysis of the legal frameworks regarding certification of national films in 8 European countries, as well as on a pan-European level. 5 Established in the Ley 397, 1997, regulated in the Decreto 358, 2000. 6 Norway 7 Summarized and clarified in Gyory (op. cit.) 8 Hereon ‘the Convention’ 9 Hereon ‘the Agreement’
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