AUDIO- VISUAL CO-PRODUCTION AGREEMENT BETWEEN

THE REPUBLIC OF INDIA

AND

THE REPUBLIC OF SOUTH AFRICA


 

The Government of the Republic of India and the Government of the Republic of South Africa (hereinafter jointly referred to as the “Parties” and separately as a “Party”);

 

SEEKING to improve cooperation between the two countries in the audiovisual field;

 

TAKING COGNISANCE of the contribution which Co-production can make to the development of the audio visual industry;

 

DESIREOUS of promoting and facilitating the Co-production of films between the two countries, and the development of their cultural and economic exchanges;

 

CONVINCED that these exchanges will contribute to improving relations between the two countries:

 

 

HEREBY AGREE as follows:

 

 

Article 1

 

Definitions

 

In this Agreement, unless the context otherwise requires:

 

(a)  “Co-Production” means an audio visual work which is any record of a sequence of related images, irrespective of length, intended to be shown as a moving image through the use of devices, regardless of the medium of initial or subsequent fixation, and for public exhibition including film and video recordings, animation and documentaries for exploitation in theatres, television, DVD or any new forms of distribution and jointly invested in and produced by Co-producers in accordance with the terms of recognition given by the Competent Authorities of India and South Africa under this Agreement. New forms of audio- visual production shall be included in this Agreement through the Amendment procedure set out in Article 17.

 

(b)  “Co-producer” means one or more nationals or legal entities of the Republic of India and one or more nationals or legal entities of the Republic of South Africa involved in the making of a Co-production film. 

 

(c)  “Third party Co-producer” means any individual or legal entity from another country with which the Republic of India or the Republic of South Africa maintain a film and audio- visual Co-production agreement as referred to under Article 6.

 

 

Article 2

 

Competent Authorities

 

The Competent Authorities, responsible for the implementation of this Agreement, shall be

 

(a)    in the case of the Government of the Republic of India, the Ministry of Information and Broadcasting; and

 

(b)    in the case of the Government of the Republic of South Africa, the National Film and Video Foundation.

 

Article 3

 

Recognition as a National Film and Entitlement to Benefits

 

(1)  A Co-production film shall be entitled to all the benefits which are or may be accorded to national films by each of the Parties under the domestic law in force in their respective countries.

 

(2)  A co-production film, contemplated in sub-Article (1), shall be entitled to claim all state support, privileges and benefits available to the film industry in their respective countries.

 

Article 4

 

Import of Equipment and Immigration Facilitation

 

(1)  A Party shall, in accordance with the domestic law in force in its country, permit the temporary import and export of any equipment necessary for the production of an approved audio-visual Co-production.

 

(2)  A Party, subject to the domestic law in force in its country regarding immigration requirement, permit any person employed in the making or promotion of an approved Co-production by the other Party to enter and remain in the country of the former Party during the making or promotion of the Co-production film.

 

Article 5

 

Participants

 

(1)  Persons participating in the making of a Co-production film shall meet the following requirements:

 

(a)  As regards the Republic of India, they shall be –

 

(i)  Nationals/Citizens of the Republic of India; or

(ii)    Entities which are established or incorporated in the Republic of India.

 

(b)  as regards the Republic of South Africa, they shall be–

 

(i)    Nationals/Citizens of the Republic of South Africa;

(ii)  Permanent residents of the Republic of South Africa; or

(iii)  Companies incorporated in the Republic of South Africa in terms of its domestic law.

 

(2)  Participants contemplated in sub paragraphs (a) and (b) must at all relevant times throughout the Co-production film, retain their national status, and may not acquire or lose such status at any point during the course of production activity.

 

(3)  Subject to the approval of the Competent Authorities of the Parties, participation of professionals who are not citizens of the countries of the Parties in a Co-production film may be permitted, but only in exceptional circumstances.

 

Article 6

 

Participation by third country

 

The Competent Authorities may approve a Co-production film involving, apart from Indian and South African Co-producers, other from third countries which are parties to an audiovisual Co-production agreement with at least one of the Parties.

 

Article 7

 

Contribution

 

Each Co-producer including, in the case of a third country Co-production film under Article 6, the third country Co-producer, shall have both a financial and a creative contribution each of not less than twenty per cent (20%) of the total financial and creative contribution for the Co-production film.

 

Article 8

 

Conditions for obtaining Co-production status

 

(1)  Audio visual Co-productions shall require, prior to the commencement   of its shooting, approval of the Competent Authorities of both Parties.

 

(2)  Approvals contemplated in sub-Article (1) shall be granted in writing under the domestic law in force in the countries of the Parties, and shall specify the conditions under which the approval is granted.

 

(3)  None of the Co-producers shall be linked by common management, ownership or control, save to the extent that such links are inherent in the making of the audio visual Co-production itself.

 

(4)  In considering proposals for the making of an audio-visual Co-production, the Competent Authorities shall apply the rules and principles set out in this Agreement with due regard to their respective domestic law.

 

Article 9

 

Status of Annex

 

 

(1)  The Annex to this Agreement forms an integral part of this Agreement and shall be read in conjunction with the provisions of this Agreement.

 

(2)   The Annex contemplated in sub-Article (1) shall include rules of procedures on:

 

(a)  the granting of approvals of an application for approved Co-production status;

 

(b)  the withdrawal of approved Co-production status; and

 

(c)  any other matters that the Parties consider desirable.

 

(3)  The Annex shall include provisions as to the criteria for measuring mutual benefits.

 

Article 10

 

Guidelines to be published by the Competent Authorities

 

 

(1)  Each Competent Authority may from time to time publish guidelines consisting of such information and advice as it considers appropriate with respect to:

 

(a)  how applications are to be made to the Competent Authority; and

 

(b)  the operation and interpretation of this Agreement.

 

(2)  The guidelines contemplated in sub-Article (1) shall, in particular, set out:

 

(a)  how the Competent Authority proposes to make decisions on applications for the grant of approved Co-production status, and

 

(b)  factors it will take into account while exercising any discretion conferred on it by this Agreement.

 

(3)  In considering an application made to it, a Competent Authority shall apply these requirements in accordance with guidelines contemplated in sub-Article (1).

 

(4)  Nothing in this Agreement binds the competent authorities in the countries of the Parties to permit the public exhibition of a film, which has been granted approved Co-production status.

 

 

Article 11

 

Film Negatives and Languages

 

(1)  Two film negatives, or at least one film negative and one duplicate film negative, shall be made of all co-produced films.

 

(2)  Apart from the two film negatives contemplated in sub-Article (1), each Co-producer shall be entitled to make a further duplicate or prints therefrom.

 

(3)  Each co-producer shall also be entitled to use the original film negative in accordance with the conditions agreed upon between the Co-producers themselves.

 

(4)  The method of storage of the original film negative shall be mutually agreed to by the Co-producers.

 

(5)  The original soundtrack of each audiovisual Co-production shall be made in the Hindi language, or any other Indian language or dialect, and in the English language or any of the other official languages of the Republic of South Africa, or in any combination of those languages. Dialogue in other languages may be included in the audiovisual Co-production, as the script requires.

 

(6)  Dubbing or subtitling into any of the languages contemplated in sub-Article (5) is permitted and shall be carried out in the countries of the Parties. Any departure from this principle must be approved by the competent Authorities of the Parties.

 

Article 12

 

Minority and majority contribution in the case of multilateral Co-productions

 

In the case of a multilateral Co-production and subject to the specific conditions and limits laid down in the domestic law in force in the respective countries of the Parties, the minority contribution may not be less than 20% (twenty per cent) and the majority contribution may not exceed 80% (eighty per cent) of the total cost of the film.

 

Article 13

 

Balanced contribution

 

(1)  A general balance should be maintained with regard to both the artistic and technical personnel, including the cast, and with regard to the financial investment and facilities (studios, laboratories, and postproduction).

 

(2)  The Joint Commission, established in terms of this Agreement, shall carry out a review to see whether the general balance contemplated in sub-Article (1) has been maintained and, if this is not the case, shall take measures, which it considers necessary in order to re-establish such a balance.

 

Article 14

 

Joint Commission

 

(1)  The Parties shall establish a Joint Commission that shall comprise the representatives of the Parties, including the representatives from the film industry of both Parties.

 

(2)  The role of the Joint Commission shall be to supervise and review the implementation and operation of this Agreement and to make any proposals considered necessary to improve the implementation of the Agreement.

 

(3)  The Joint Commission shall be convened, whether by meeting or otherwise, at the request of either of the Parties within six months of such a request.

 

 

 

Article 15

 

Entry in International Film Festivals

 

(1)  The majority Co-producer shall have the right to enter co-produced films in international festivals.

 

(2)  Films produced on the basis of equal contributions shall be entered as a film of the country of which the director is a national. In the event that the director is from a third country, the film shall be entered as a film of the country of which the lead actor is a national, subject to the agreement of the Competent Authorities of both Parties.

 

 

 

 

Article 16

 

Credits

 

A Co-production film and the promotional materials associated with it shall include either a credit title indicating that the film is “an official India-South Africa Co-production” or “an official South Africa- India Co-production” or where relevant, a credit which reflects the participation of the Parties and a third party co-producing country contemplated in Article 6.

 

Article 17

 

Amendment

 

This Agreement may be amended by mutual consent of the Parties through an Exchange of Notes between the Parties through the diplomatic channel.

 

Article 18

 

Settlement of Disputes

 

Any dispute between the Parties arising out of the interpretation, application or implementation of the provisions of this Agreement shall be settled amicably through consultation and negotiation between the Parties.

 

 

Article 19

 

Entry into Force, Duration and Termination of the Agreement

 

 

(1)  This Agreement shall enter into force when both Parties have notified each other in writing through diplomatic channels that their respective legal or constitutional requirements for entry into force of this Agreement have been completed.

 

(2)  This Agreement shall remain in force for an indefinite period, unless terminated by either Party in terms of sub-Article (3).

 

(3)  This Agreement may be terminated by either Party giving at least six months written notice in advance to the other Party through the diplomatic channels of its intention to terminate this Agreement.

 

(4)  The termination of this Agreement shall not affect the completion of any project undertaken by the Parties prior to the termination thereof, or the full execution of any activity that has not been fully executed at the time of termination, unless otherwise agreed upon in writing by the Parties.

 

IN WITNESS WHEREOF the undersigned being duly authorized thereto by their respective Governments, have signed and sealed this Agreement in two originals in the Hindi and English languages, all text being equally authentic. In the case of a divergence of interpretation, the English text shall prevail.

 

 

 

Done at _______________on this ________ day of __________2021.

 

 

 

 

 

  For the Government of the                          For the Government of the

  Republic of India                                         Republic of South Africa.

 

  Name:                                                          Name:

  Designation:                                                Designation:

 

 

  

ANNEX

 

PROCEDURES

 

 

1.      General Provisions

 

(1)    Applications for any benefits under this Agreement in aid of any Co-production shall be submitted simultaneously to the Competent Authorities at least sixty (60) days before filming begins.

 

(2)    The Competent Authority of a Party of which the majority Co-producer or another Co-producer indicated by the Co-producers is a citizen, shall convey their decision to the Competent Authority of the other Party within thirty (30) days of the submission of all the documentation listed in item (4).

 

(3)    Again within thirty (30) days, the Competent Authority of the latter Party shall convey their decision to a Competent Authority of the first Party and to the Co-producer appointed by the Co-producers.

 

(4)      Applications contemplated in item (1), shall be supported by the following documents:

 

(a)       Final version of the script.

 

(b)      Evidence of the lawful acquisition of the copyright necessary to a given Co-production,

 

(c)       A signed copy of a Co-production contract concluded between Co-producers, which should contain—

 

                     (i)             the title of the Co-production;

                   (ii)             the name of the author of the screenplay or of the person who adapted the screenplay, if it is based on literary sources;

                  (iii)             the name of the director;

                  (iv)             a synopsis;

                    (v)             a budget plan;

                  (vi)             a financial plan, stating the financial input of the Co-producers;

                (vii)             a clause defining the division of revenues and markets;

               (viii)             a clause setting forth a share in the copyright in proportion to the input of individual Co-producers;

                  (ix)             a clause describing what to do if the budget is exceeded;

                   (x)          a clause describing the measures to be taken if one of the Co-producers does not discharge its obligations;

                  (xi)             a clause setting forth the rules governing financial settlements if any of the Co-producer fails to provide the financial contribution agreed upon in the Co-production contract;

                (xii)             a clause confirming that the acceptance of a Co-production does not imply any production will be distributed in the countries of the Parties;

               (xiii)             a clause obligating the majority Co-producer to take out an insurance policy providing cover against “all production risks” and “all production risks connected with original materials”; and

               (xiv)             the date on which filming commences.

 

(d)      The distribution agreement, if such an agreement has already been concluded.

 

(e)       A detailed budget, showing the expenditures to be incurred by the Co-producers of the respective countries of the Parties.

 

 

  1. 2.   IMPORTANT PROVISIONS FOR INDIAN PARTY

 

(1)    In addition to the documents referred to in item 1(4), an application addressed to the Indian Ministry of Information and Broadcasting (MIB), shall be accompanied by—

 

(a)       four copies of the screenplay and film synopsis; and

 

(b)      processing fee of US$ 225 payable to the MIB.

 

(2)    If the film is to be shot wholly or partly in the Republic of India, the Co-producers shall provide the Indian Embassy in the Republic of South Africa and the MIB with the following information:

 

(a)       Details of any non-Indian members of the film crew: names, passport numbers and expiry dates, country which issued the passport, nationality, permanent and temporary address.

 

(b)      An accurate description of the shooting locations and the film crew’s travel plans.

 

(c)       A description of the cinematographic equipment and quantity of film to be brought into the Republic of India temporarily.

 

(3)      Within three (3) weeks of receipt of all the required set of documents, the MIB shall send the appropriate filming permit to all Co-producers and to the Competent Authority of the Government of the Republic of South Africa.

 

(4)      A longer period for issuing the filming permit may be required if filming is to take place in restricted areas.

 

(5)      Permission to film in the Republic of India may be dependent upon the following conditions:

 

(a)       Permission from a person or his legal heir who is to be portrayed in the film and a copy of the permission shall be attached to the screenplay.

 

(b)      If it is necessary to obtain assistance from third parties, separate agreements may have to be concluded with these parties.

 

(c)           Requests for assistance contemplated in paragraph (b) may be submitted through the MIB.

 

(d)      Each film, for whose production the assistance of the Armed Forces has been obtained, must be presented to the Ministry of Defence of the Government of the Republic of India in order to obtain permission for its distribution.

 

(e)       In some cases, a film may have to be presented to a representative of the Government of the Republic of India or to the Indian Embassy in the Republic of South Africa before it can be shown anywhere in the world. 

 

(f)        In some cases, a liaison officer may be assigned to a film crew at the expense of the Government of the Republic of India.

 

 

  1. 3.   CONCLUDING PROVISIONS

 

(1)    The Competent Authorities may ask for any additional documents or information which they consider essential in order to consider an application for a Co-production.

 

(2)    The final screenplay (with script) shall be presented to the Competent Authorities prior to the start of filming.

 

(3)    Subject to sub-items (4) and (5), amendments, including a change of Co-producer, may be made to the original Co-production contract.

 

(4)    Any amendment contemplated in sub-item (3) shall be submitted to the Competent Authorities for approval before the Co-production is completed.

 

(5)    A change of Co-producer is permissible only in exceptional circumstances, and for reasons considered by the Competent Authorities to be satisfactory.

 

(6)    The Competent Authorities shall inform each other of the decisions they have reached with regard to a change in Co-producer.

[Back]