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Audio-Visual Co-Production Agreement between the Government of Canada and the Government of the Republic of Cuba [1999] CATSer 32 (1 September 1999)

E100798 - CTS 1999 No. 26

AUDIO-VISUAL CO-PRODUCTION AGREEMENT BETWEEN THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF CUBA

THE GOVERNMENT OF CANADA AND THE GOVERNMENT OF THE REPUBLIC OF CUBA (hereinafter referred to as the "Parties");

CONSIDERING that it is desirable to establish a framework for audio-visual relations and particularly for film, television and video co-productions;

CONSCIOUS that quality co-productions can contribute to the further expansion of the film, television and video production and distribution industries of both countries as well as to the development of their cultural and economic exchanges;

CONVINCED that these exchanges will contribute to the enhancement of relations between the two countries;

HAVE AGREED as follows:

ARTICLE I

1. For the purpose of this Agreement, an "audio-visual co-production" is a project, irrespective of length, including animation and documentary productions, produced either on film, videotape or videodisc, or in any other format hitherto unknown, for exploitation in theatres, on television, videocassette, videodisc or by any other form of distribution. New forms of audio-visual production and distribution will be included in the present Agreement by exchange of notes.

2. Co-productions undertaken under the present Agreement must be approved by the following authorities, referred to hereinafter as the "competent authorities":

in Canada:

the Minister of Canadian Heritage; and

in Cuba:

Instituto Cubano del Arte e Industria Cinematograficos.

3. Every co-production proposed under this Agreement shall be produced and distributed in accordance with the national legislation and regulations in force in Canada and in Cuba.

4. Every co-production produced under this Agreement shall be considered to be a national production for all purposes by and in each of the two countries. Accordingly, each such co-production shall be fully entitled to take advantage of all benefits currently available to the film and video industries or those that may hereafter be decreed in each country. These benefits do, however, accrue solely to the producer of the country which grants them.

5. The competent authorities of the two countries shall consult with one another to ensure that all projects co-produced under this Agreement comply with the provisions of this Agreement.

ARTICLE II

The benefits of the provisions of this Agreement apply only to co-productions undertaken by producers who have good technical organization, sound financial backing and recognized professional standing.

ARTICLE III

1. The proportion of the respective contributions of the co-producers of the Parties will range from twenty (20%) to eighty percent (80%) of the budget for each co-production.

2. Each co-producer shall be required to make an effective technical and creative contribution. In principle, this contribution shall be in proportion to his investment.

ARTICLE IV

1. The producers, writers and directors of co-productions, as well as the technicians, performers and other production personnel participating in such co-productions, must be citizens, or permanent residents of Canada or Cuba.

2. Should the co-production so require, the participation of performers other than those provided for in the first paragraph may be permitted, subject to approval by the competent authorities of both countries.

3. For each audiovisual co-production:

(a) The Canadian co-producer shall comply with all the required conditions, in order to satisfy the provisions of Canadian legislation for recognition of nationality.

(b) The Cuban co-producer shall comply with all the conditions required by the legislation in force in the event that he is the sole producer for the purpose of recognition of Cuban nationality.

(c) Any third-country co-producers participating in the project shall comply with all the conditions referred to in this Agreement and that are necessary to produce an audiovisual production under a co-production treaty between this third country, Canada and Cuba.

(d) The co-producers' cooperation for the purpose of producing the audiovisual co-production shall not in any case be considered to constitute a partnership or association between the Parties.

ARTICLE V

1. Live action shooting and animation works such as storyboards, layout, key animation, in betweening and voice recording must, in principle, be carried out either in Canada or in Cuba.

2. Location shooting, exterior or interior, in a country not participating in the co-production may, however, be authorized, if the script or the action so requires and if technicians from Canada and Cuba take part in the shooting.

3. In the event that competent authorities approve location shooting in a country other than those of the co-producers, citizens or residents of that country may be used, where necessary, to guarantee the takes, subject to specific approval by the competent authorities.

4. All work on an audiovisual co-production, from the start to the first printed copy, shall be done in Canada and/or Cuba, or, where a co-producer from a third country is involved, in that country.

5. The laboratory work shall be done in either Canada or Cuba, unless it is technically impossible to do so, in which case the laboratory work in a country not participating in the co-production may be authorized by the competent authorities of both countries.

ARTICLE VI

1. The competent authorities of both countries also look favourably upon co-productions undertaken by producers of Canada, Cuba and any country to which Canada or Cuba is linked by an Official Co-Production Agreement.

2. The proportion of any minority contribution in any multi-party co-production shall be not less than twenty per cent (20%).

3. Each minority co-producer in such co-production shall be obliged to make an effective technical and creative contribution.

ARTICLE VII

1. The original sound track of each co-production shall be recorded in either English, French or Spanish. Shooting in any two, or in all, of these languages is permitted. Dialogue in other languages may be included in the co-production as the script requires.

2. The dubbing or subtitling of each co-production into English and French, or into Spanish shall be carried out respectively in Canada or in Cuba. Any departures from this principle must be approved by the competent authorities of both countries.

ARTICLE VIII

1. Except as provided in the following paragraph, no fewer than two copies of the final protection and reproduction materials used in the production shall be made for all co-productions. Each co-producer shall be the owner of one copy of the protection and reproduction materials and shall be entitled to use it, in accordance with the terms and conditions agreed upon by the co-producers, to make the necessary reproductions. Moreover, each co-producer shall have access to the original production material in accordance with those terms and conditions.

2. At the request of both co-producers and subject to the approval of the competent authorities in both countries, only one copy of the final protection and reproduction material need be made for those productions which are qualified as low budget productions by the competent authorities. In such cases, the material will be kept in the country of the majority co-producer. The minority co-producer will have access to the material at all times to make the necessary reproductions, in accordance with the terms and conditions agreed upon by the co-producers.

ARTICLE IX

Subject to the legislation and regulations in force, the Parties shall:

(a) facilitate the entry into and temporary residence in their respective territories of the creative and technical personnel and the performers hired by the co-producer of the other country for the purpose of the co-production; and

(b) similarly permit the temporary entry and re-export of any equipment necessary for the purpose of the co-production.

ARTICLE X

The sharing of revenues by the co-producers should, in principle, be proportional to their respective contributions to the production financing and be subject to approval by the competent authorities of both countries.

ARTICLE XI

Approval of a co-production proposal by the competent authorities of both countries does not constitute a commitment to either or both of the co-producers that governmental authorities will grant a licence to show the co-production.

ARTICLE XII

1. Where a co-production is exported to a country that has quota regulations, it shall be included either in the quota of the Party:

(a) of the majority co-producer;

(b) that has the best opportunity of arranging for its export, if the respective contributions of the co-producers are equal; or

(c) of which the director is a national, if any difficulties arise with the application of sub-paragraphs (a) and (b) hereof.

2. Notwithstanding Paragraph 1, in the event that one of the co-producing countries enjoys unrestricted entry of its films into a country that has quota regulations, a co-production undertaken under this Agreement shall be as entitled as any other national production of that country to unrestricted entry into the importing country if that country so agrees.

ARTICLE XIII

1. A co-production shall, when shown, be identified as a "Canada-Cuba Co-production" or "Cuba-Canada Co-production" according to the origin of the majority co-producer or in accordance with an agreement between co-producers.

2. Such identification shall appear in the credits, in all commercial advertising and promotional material and whenever this co-production is shown and shall be given equal treatment by each Party.

ARTICLE XIV

In the event of presentation at international film festivals, and unless the co-producers agree otherwise, a co-production shall be entered by the country of the majority co-producer or, in the event of equal financial participation of the co-producers, by the country of which the director is a national.

ARTICLE XV

The competent authorities of both countries have jointly established the rules of procedure for co-productions taking into account the legislation and regulations in force in Canada and in Cuba. These rules of procedure are attached to the present Agreement.

ARTICLE XVI

No restrictions shall be placed on the import, distribution and exhibition of Canadian film, television and video productions in Cuba or that of Cuban film, television and video productions in Canada other than those contained in the legislation and regulations in force in each of the two countries.

ARTICLE XVII

1. During the term of the present Agreement, an overall balance shall be aimed for with respect to financial participation as well as creative personnel, technicians, performers, and facilities (studio and laboratories), taking into account the respective characteristics of each country.

2. The competent authorities of both countries shall examine the terms of implementation of this Agreement as necessary in order to resolve any difficulties arising from its application. They shall, as needed, recommend possible amendments with a view to developing film and video co-operation in the best interests of both countries.

3. A Joint Commission shall be established to look after the implementation of this Agreement. The Joint Commission shall examine if this balance has been achieved and, in case of the contrary, shall determine the measures deemed necessary to establish such a balance. A meeting of the Joint Commission shall take place in principle once every two years, or as required, and it shall meet alternately in the two countries. However, it may be convened for extraordinary sessions at the request of one or both competent authorities, particularly in the case of major amendments to the legislation or the regulations governing the film, television and video industries in one country or the other, or when the application of this Agreement presents serious difficulties. The Joint Commission shall meet within six (6) months following its convocation by one of the Parties.

ARTICLE XVIII

1. The present agreement shall be applied provisionally as of the date of its signing. It shall come into force when each Party has informed the other that its internal ratification procedures have been completed.

2. It shall be valid for a period of five (5) years from the date of its entry into force. A tacit renewal of the Agreement for like periods shall take place unless one or the other Party gives written notice of termination six (6) months before the expiry date.

3. Co-productions which have been approved by the competent authorities and which are in progress at the time of notice of termination of this Agreement by one of the Parties, shall continue to benefit fully until completion from the provisions of this Agreement. After expiry or termination of this Agreement, its terms shall continue to apply to the sharing of revenues from completed co-productions.

ANNEX

RULES OF PROCEDURE

Application for benefits under this Agreement for any co-production must be made simultaneously to both administrations at least thirty (30) days before shooting begins. The administration of the country of which the majority co-producer is a national shall communicate its proposal to the other administration within twenty (20) days of the submission of the complete documentation as described below. The administration of the country of which the minority co-producer is a national shall thereupon communicate its decision within twenty (20) days.

Documentation submitted in support of an application shall consist of the following items, drafted in English or French in the case of Canada and in Spanish in the case of Cuba:

I. The final script;

II. Documentary proof that the copyright for the co-production has been legally acquired;

III. A copy of the co-production contract signed by the two co-producers;

The contract shall include:

l. The title of the co-production;

2. The name of the author of the script, or that of the adapter if it is drawn from a literary source;

3. The name of the director (a substitution clause is permitted to provide for his replacement if necessary);

4. The budget;

5. The financing plan;

6. A clause establishing the sharing of revenues, markets, media or a combination of these;

7. A clause detailing the respective shares of the co-producers in any over or underexpenditure, which shares shall in principle be proportional to their respective contributions, although the minority co-producer's share in any overexpenditure may be limited to a lower percentage or to a fixed amount providing that the minimum proportion permitted under Article VI of the Agreement is respected;

8. A clause recognizing that admission to benefits under this Agreement does not constitute a commitment that governmental authorities in either country will grant a licence to permit public exhibition of the co-production;

9. A clause prescribing the measures to be taken where:

(a) After full consideration of the case, the competent authorities in either country refuse to grant the benefits applied for;

(b) The competent authorities prohibit the exhibition of the co-production in either country or its export to a third country;

(c) Either party fails to fulfil its commitments;

10. The period when shooting is to begin;

11. A clause stipulating that the majority co-producer shall take out an insurance policy covering at least "all production risks" and "all original material production risks";

12. A clause providing for the sharing of the ownership of copyright on a basis which is proportionate to the respective contributions of the co-producers.

IV. The distribution contract, where this has already been signed;

V. A list of the creative and technical personnel indicating their nationalities and, in the case of performers, the roles they are to play;

VI. The production schedule;

VII. The detailed budget identifying the expenses to be incurred by each country; and

VIII. The Synopsis.

The competent administration of the two countries can demand any further documents and all other additional information deemed necessary.

In principle, the final shooting script (including the dialogue) should be submitted to the competent administrations prior to the commencement of shooting.

Amendments, including the replacement of a co-producer, may be made in the original contract, but they must be submitted for approval by the competent administrations of both countries before the co-production is finished. The replacement of a co-producer may be allowed only in exceptional cases and for reasons satisfactory to both the competent administrations.

The competent administrations will keep each other informed of their decisions.

IN WITNESS WHEREOF, the undersigned, duly authorized by their respective Governments, have signed this Agreement.

DONE in duplicate at Havana, Cuba, this 27th day of April 1998, in the English, French and Spanish languages, each version being equally authentic.

Keith H. Christie

FOR THE GOVERNMENT OF CANADA

Bienvenido Garcia

FOR THE GOVERNMENT OF THE REPUBLIC OF CUBA