It seems the change that the HOT cable TV company announced at the start of last month − the replacement of its Channel 8 documentary producer Noga Communications with Slutzky Communication Channels − won’t be happening any time soon.

After HOT made its announcement, a contract was expected within a few days, but the signing has been delayed. In fact, it came out at last Thursday’s Council for Cable TV and Satellite Broadcasting hearing requested by filmmakers that the deal is merely theoretical. HOT has yet to file notice that it wants to change producers, a step it is obligated to take by the cable council.

To allow a serious discussion of the issue, the council ruled that the change of producers could only go through six months after the filing of the request. This m

eans that for HOT to switch from to Slutzky from Noga, whose contract is up January 1, HOT will have to formally request the change by June 1 at the latest.
On the surface, nothing has changed, but it begs the question: why the delay?

A clue came in a letter the council sent HOT on Sunday asking for clarification of “the issue of ownership of content not [directly] owned by HOT.” Channel 8 depends on Noga’s splendid archive of some 1,000 documentaries; if Noga packs up those films and takes them along when its contract expires, Channel 8 would have a hard time operating with a new producer.

This became clear over Holocaust Memorial Day, Memorial Day for Fallen IDF Soldiers and Independence Day, when Channel 8 broadcast a long series of documentaries produced by Noga and traditionally shown at these times.

The seven months until the revamped documentary channel goes on air are a blink of an eye when it comes to television production. Since filmmakers are also examining their entry into the process and the possibility of taking part in the sale of the archive of their work, the archive is likely to turn into a large stumbling block for Channel 8.

Drop in quality?

Meanwhile, all the parties involved are watching and waiting. The filmmakers requested the council hearing due to questions that arose after HOT announced its intention to move from Noga to Slutzky. As things stand, Noga refuses to sell its rights to the archive or to works-in-progress ‏(dozens of films and series‏), which is a serious problem for Slutzky.

First, the new channel will start out from a position of weakness. Documentary filmmakers told Haaretz that “channels such as Channel 8 exist on rebroadcasts. Without an archive or new projects, which take a year and a half to two years to produce, it will be impossible to create a proper channel. This means that, at least in the short run, the channel won’t be as good.”

Sources on the cable council and at Slutzky Communications maintained they are ready to start broadcasting without material from Noga. Slutzky could sign business deals with the Israel Film Service or Channel 1 archive, for example. This would allow the new channel to schedule documentaries from other sources.

Sources at HOT point out that the Comedy Central channel that replaced Beep two years ago was able to stand on its own within only a few months. But unlike Comedy Central, Channel 8 is required to broadcast original material within a certain time.

“There is clearly a desire to transfer some of Noga’s programs to Slutzky, some works-in-progress and some from the archive,” a veteran producer told Haaretz. “But if the people at Noga decide differently − for example, to sell the archive other places or to broadcast the films on other platforms such as the Internet, the new channel will be hurt.”

Sources say a sale of the archive will be part of a larger deal, as Noga is not only Channel 8’s production company, but also part of businessman Aviv Giladi’s RGE Group, which also owns the Children’s Channel, Logi and five sports channels. Like Channel 8, they are all up for contract renewal with the cable operators.

Another source says the archive will be acquired in negotiations over other channels, and that if such a deal is made, it would likewise hurt Channel 8.

A voice for filmmakers

What looks from the outside like straight business negotiations may also be more complex when yet another element enters the picture: filmmakers’ organizations. Since directors and scriptwriters receive royalties on rebroadcasts, it would seem in the clear interest of their organizations to transfer the entire archive to the new channel.

But reality is more complicated. The material that’s accumulated in the Noga archive is the work of documentary filmmakers, directors and producers who have signed contracts with Noga over the last 20 years that gave them certain rights.

“There are many different contracts and arrangements,” says attorney Tony Greenman, an expert on film and television law who has worked for production companies in their dealings with Noga. “The archive does not belong solely to Noga and arrangements have changed over the years. At first Noga had easier contracts [but] they became tougher over time.”

When the film is initiated and funded by Noga, it also owns the rights. This is the case with most of the channel’s series.

On the other hand, many films have been co-productions funded by associations that enlisted a producer for a film or series. The smaller the percentage of Noga’s investment in a project, the less its rights. Many documentary filmmakers who have worked with the channel over the years said their contracts guarantee Noga’s right to use the material freely, including transferring the rights to a third party, without having to acquire the filmmaker’s agreement or compensate him.

“A filmmaker who retains his rights by contract will not be hurt when ownership is transferred, but all the contracts will be closely examined,” said Greenman.

This is the simpler part of the issue. Filmmakers’ organizations are currently examining the possibility of becoming party to the agreement transferring rights to the archive from Noga to Slutzky or the cable company. Although it seems that legally and contractually Noga is covered on this issue, there may be ethical and legal principles, as several filmmakers argue, that will give filmmakers a voice, which could have far-reaching effects.

“To us this is an interesting question of principle,” a documentary film producer said. “The regulator decided that Channel 8 would be run by an independent producer to encourage pluralism, so that HOT would not decide who gets what and how much. But what happened here is that the independent producer, the one who was supposed to be just a pipeline for funds, turned into a powerful force. The money for these productions, which by law the cable stations must fund in the public interest, became an asset in private hands.”