Nitrate film paper submitted by the Research Services of German Bundestag (June 27, 2016)

The Wissenschaftlicher Dienst (WD) / Research Services of the German Bundestag recently issued a paper entitled “The Handling of nitrocellulose based film in international comparison” – see here. The investigation was initiated by CDU member of parliament Carsten Müller.

On the one hand, the WD paper deals with the legal basis and conditions of nitrate film disposal and examines whether a disposal obligation exists or not. On the other hand, the paper compares the Bundesarchiv practice with the archival practice in other European countries as well as the US and Australia. Apart from this comparison, the paper takes an exclusively judicial approach, thereby ignoring cultural, historical and political considerations and focusing instead on the question whether or not the Bundesarchiv’s destruction policy is in conformity with the law. The WD’s conclusion is yes, the destruction policy is indeed legally compliant – however only under the assumption that nitrate films pose a threat that requires “their gradual reduction to protect the life, health and goods of employees or third parties” (p. 11).

The main reference of the WD paper is the well-known article by Winfried Bullinger: Sprengstoff im Bundesarchiv – Rechtliches zum Umgang mit Nitro-Filmen. (In: Paul Klimpel (ed.), Bewegte Bilder – starres Recht? Das Filmerbe und seine rechtlichen Rahmenbedingungen, Berlin: Berlin Academic, 2011, p. 53-61.) Like Bullinger, the WD concludes that in terms of the Explosives Act no legal disposal obligation exists. However, the “specific ancillary provisions of the former Amt für Arbeitsschutz und Sicherheitstechnik / State Office for Industrial Safety and Safety Technology in Eberswalde” (p. 4) that were imposed on the Bundesarchiv’s nitrate depot in Berlin-Hoppegarten, have a legally binding character even in case “the official order should turn out to be unlawful” (p. 9). This means the Bundesarchiv would be obliged to reduce its nitrate holdings even after the wrongful character of these requirements was recognized.
Considering the legality of the disposal obligation, the WD authors are cautious. Their assessment depends on whether storing nitrate film does indeed pose a concrete hazard to the Bundesarchiv’s personnel. If this is the case, the requirements are considered to be justified. However, the legal obligation would remain unaffected in the opposite case as well (p. 11).
Furthermore, the authors object Bullinger’s opinion that the destruction policy contradicts the principle of long-term preservation formulated in the Bundesarchivgesetz / Federal Archives Law. Even though Bullinger’s constitutional concerns are cited, they are not discussed: “There are certainly convincing arguments against this view.” (p. 15) – However, these arguments are left to the reader’s imagination.
By contrast, the paper’s final part is satisfying in the sense that the authors were unable to detect a similar nitrate disposal policy neither in France, Great Britain, Austria, Denmark and Poland nor in the USA and Australia. Hopefully, this conclusion provides the paper’s readers with food for thought.

The WD paper indicates that a final assessment of the Bundesarchiv’s destruction policy requires the clarification of several, hitherto unanswered questions – especially with regard to the disposal obligation imposed on the Bundesarchiv by the Amt für Arbeitsschutz und Sicherheitstechnik, and to the actual danger the nitrate holdings pose to the Bundersarchiv personnel. The paper itself appears questionable wherever archive-specific questions are raised – e.g. when erroneously assuming that all information and physical characteristics of the authentic film material, including traces of use etc., can be transferred by digitization (p. 13). The paper’s source references confirm the impression that the WD has failed to obtain expert opinions regarding this crucial point.

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