|July 23, 2013|
Previously published on July 18, 2013
Unexpectedly, the government of Argentina has decided to enforce law 23,316, enacted on May 23, 1986, regarding certain requirements for dubbing motion pictures and television programming (the “Dubbing Act”), which was only in the books and never implemented... until today. President Kirchner issued decree 933/2013, which after 27 years explains and expands the Dubbing Act (the “Decree”). Both regulations are full of confusing and contradictory clauses which will cause more than a headache to the film & TV industry and will be an invitation for litigation.
The Dubbing Act states that all dubbing must be in a neutral dialect and accent of the Spanish language. The plain language of the Dubbing Act only requires such neutral dubbing if, and only if, they decide to broadcast in Spanish, and there is no clause requesting television networks (regardless of the means of transmission, e.g. satellite, broadcast, cable) to dub into Spanish language every programming originally produced in a different language.
Nevertheless, the Whereas of the Decree purports that the exhibition of motion pictures and television programming must be dubbed into the Spanish language in a neutral fashion for television. However, section 9(c) of the Telecommunications Act 26,522 (the “Telecommunications Act”), provides a carve out to this obligation for “programs that are exhibited in another language and are simultaneously translated or subtitled.”
Moreover, section 1 of the Decree states that programming exhibited on television broadcast services described under the Telecommunications Act must be in the official language (i.e. Spanish) or the languages of the Natives, with the exceptions provided under section 9 of such Act. Under the Telecommunications Act, television broadcast (radiodifusión televisiva) means “primarily all one-way forms of communication used to transmit audiovisual frequencies, with or without sound, for the simultaneous viewing based on a scheduled programming grid, to be received by the general public by means of electromagnetic Hertzian waves.” Thus, in addition to the exception set forth under section 9(c) of the Telecommunications Act explained above, the definition of “television broadcast” will only include the so-called free over-the-air television, excluding cable-TV, satellite-TV and the Internet, amongst others.
Consequently, even though the Whereas of the Decree and statements by members of Ms. Kirchner’s cabinet deem to oblige all television programming and motion pictures to be dubbed into the Spanish language, this should not be the case.
Separately, if a distributor has to dub a motion picture or television programming, such distributor will face the following administrative hurdles:
- For television programming and motion pictures with 4 or more speakers, at least 50% of the material must be dubbed by talent with a degree from state or public educational institution recognized by the Argentinean authorities (if they are less than 4 speakers, then 25% the material must be dubbed in accordance with the provisions set forth under this paragraph);
- This requirement applies to all television networks, whether it is over-the-air, cable, satellite, or any in any manner now known or hereafter devise;
- All distributors importing motion pictures or television programming must register with the Register of Importers of Programs for Television (Empresas Importadoras Distribuidoras de Programas Envasados para Televisión y de Estudios y Laboratorios de Doblaje) which is under the scope of Argentina’s Film Commission (Instituto Nacional de Cine y Artes Audiovisuales) (“Film Commission”). Distributors will not be able to import unless they have the relevant certificate issued by the Film Commission;
- If a distributor already has a certificate, it will have to file a new application for a renewal, so that the Film Commission can provide them with a new registration number;
- Failing to have a certificate will not only complicate customs and duties procedures, but also prohibit all networks from exhibiting the applicable motion picture or television programming;
- The Argentinean FCC (Autoridad Federal de Servicios de Comunicación Audiovisual -AFSCA) and the Film Commission are empowered to supervise and impose sanctions. All proceeds will go to a fund that subsidies local productions (Fondo de Fomento Cinematográfico).