Copyright Culture & Documentary Films

There was great interest in the panel we hosted on documentary films and copyright, but the topic is so rich and important that it really needs more time devoted to it to fully explore the issues.

So we are very pleased to announce plans for a full, international conference on Documentary Films and Copyright to be held in Ottawa, Canada on September 25 and 26, 2009. More details will follow as plans for the conference come together.

This conference aims to bridge the gap among many sectors: legal, policymaking, academic scholarship and film production to identify concrete ways of solving practical problems facing documentary filmmakers when working with copyrighted materials in the course of their productions.

The conference’s highlight will be the launch of a Canadian Best practices guide to Documentary and Fair Dealing.

This conference is jointly organized by the Documentary Organization of Canada / l’association des Documentaristes du Canada (DOC), CIPPIC and the University of Ottawa’s Faculty of Law.

If you have questions, topics you would like to see addressed, or you are interested in being involved in the conference, please feel free to contact me at techlaw@uottawa.ca, or leave a comment below.

UPDATE! We have uploaded an initial raw cut of the video of the Lets Doc Copyright panel to archive.org. You can now view it here:

We have plans underway to edit that into a slicker video, but wanted to get something up so more people could at least view the video.

Early in the video, we showed a clip from Brett Gaylor’s open source documentary RiP: A Remix Manifesto. The camera didn’t capture it (ironically!) but you can watch it below or on Brett’s NFB blog. You can also follow Brett on Twitter at @remixmanifesto.

• 11:20 AM Tamir Israel - Panel starts in 10 minutes.
• 11:47 AM kaplanmyrth - Extended clip from Rip! A Remix Manifesto movie by Brett Gaylor. Girl Talk FTW.
• 11:48 AM Tamir Israel - Brett Gaylor’s filme RiP: A Remix Manifesto explores the barriers placed by intellectual property laws on creating original works by remixing preexisting works.
• 11:48 AM kaplanmyrth - Come back to the University of Ottawa on March 25 to see a screening of the whole movie, “Rip! A Remix Manifesto” by Brett Gaylor of the NFB, hosted by the Student Federation of the University of Ottawa. It’ll be followed by a discussion panel and Q & A where they’ll discuss ownership of ideas and art, copyright laws, opensource softwares and more.
• 11:51 AM kaplanmyrth - Want to weigh in or ask the panel a question? Twitter with #docpanel and we’ll pick up your question here!
• 11:54 AM kaplanmyrth - Peter Jaszi explaining Fair Use. The analysis traditionally turned on whether the use was transformative. There was also a “feedback loop” — if the use constituted good faith reuse in the area, courts would find the use fair.
• 11:56 AM Tamir Israel - Peter Jaszi: To read more about how documentary filmmakers feel about copyright issues such as fair use, go to the Center for Social Media
  
• 11:58 AM kaplanmyrth - OMG the #uOttawa internet connection is *terrible*.
• 11:58 AM kaplanmyrth - Center for Social Media (got it wrong the first time with Canadian spelling of Centre!)
• 12:04 PM kaplanmyrth - Sean Flynn is talking about how difficult it is in South Africa to get access to archival footage of the apartheid era, so copyright in documentary films is a particular concern.
• 12:05 PM Tamir Israel - Sean Flynn: South African documentary makers experience challenges in creating documentaries using existing third party material because South African fair dealing is not sufficiently developed. Documentary filmmakers are hesitant to use materials because they do not know whether they will be held liable or not.
• 12:07 PM kaplanmyrth - Sean Flynn says that copyright law in South Africa does not cover digital media at all, so every time you send an email there you are infringing copyright law!
• 12:08 PM Tamir Israel - Sean Flynn: Because the courts have yet to properly define fair dealing in South Africa, a project is underway to improve the situation for documentary filmmakers, through best practices documents and/or calls for reform.
• 12:11 PM kaplanmyrth - David Fewer representing CIPPIC talking about how the differences between “fair use” in the US and “fair dealing” in Canada and how they pertain to documentary films. The CCH case helps documentary filmmakers by purposively construing categories of fair dealing; and by tapping into a feedback loop and considering what the Law Society says research standards are. That puts documentary filmmakers in a potentially good position if documentary films that are within the community standard were challenged on copyright grounds.
• 12:11 PM Tamir Israel - David Fewer: Since CCH v. LSUC, the Supreme Court of Canada very much opened the door to documentary filmmakers by interpreting fair dealing in a broader manner that also caters to the realities of the community of users. This implies fair dealing will develop in ways that cater to the needs of the documentary filmmaker community
• 12:13 PM kaplanmyrth - If yo’ure interested in the tangent that David Fewer just mentioned, check out:Homeless nation
• 12:15 PM Tamir Israel - David Fewer: CIPPIC has worked to help documentary filmmakers such as Brett Gaylor in assessing whether third party clips would clear copyright and fall within the fair dealing exception. Challenges included ensuring the clips were not too long, and dealing with ‘overly litigious’ copyright holders.
• 12:17 PM Tamir Israel - In the making of ‘RiP! A Remix Manifesto!”, many artists refused to provide clearance for clips which had to be excluded from the final work.
• 12:19 PM Tamir Israel - Tina Hahn: at one time, there were several independent archives of clips that documentary filmmakers could draw upon to create documentaries. In recent times, these archives have been centralized in the hands of larger central organizations that are not sympathetic to facilitating documentary filmmaking. This leads to prohibitive costs in creating documentaries.
• 12:22 PM Tamir Israel - Tina Hahn: Given this new reality, much needs to be done to in developing best practices. Currently, the default appears to be in many cases for copyright holders to demand clearance fees, but it is not even clear where the impetus for this ‘clearance culture’ is coming. Better definition in the for of best practices works to cure these types of issues and can form a basis for future legal reforms.
• 12:24 PM Tamir Israel - Tina Hahn: It has gotten to the point where older documentaries must be taken off the market because clearances expire and the original rights are now owned by corporate entities (see Sony, Disney, etc.) who are not willing to extend clearances at a reasonable rate. Essential parts of our culture are disappearing.
• 12:27 PM kaplanmyrth - Howard Knopf talking from the audience about his own experience writing the white paper for DOC and what is needed in legislative reform in Canada now.
• 12:27 PM Tamir Israel - Howard Knopf had done a seminal white paper for the Documentary Organization of Canada defining best practices in relation to documentary filmmaking.
• 12:28 PM Tamir Israel - Howard Knopf: Thinks legislative reform may be necessary because courts have not defined fair dealing in line with existing best practices (examples: recent decisions in B.C. denying a parody exception within fair dealing, in spite of CCH v. LSUC).
• 12:29 PM Tamir Israel - Howard Knopf: In addition, there is a chilling effect by past decisions. Lawyers and documentary filmmakers are hesitant to take action without some decisive statements of what is fair dealing and what is not. We should not wait for the Supreme Court to clear things up, but rally for legislative reform.
• 12:30 PM kaplanmyrth - Howard Knopf: Yes, the Supreme Court has spoken [on Fair Dealing] but no, nobody has understood what they have said.
• 12:31 PM Tamir Israel - Jeremy de Beer: Is there any use to best practices and relying on the common law to sort itself out? Or should we rely only on legislative reform?
• 12:33 PM Tamir Israel - Peter Jaszi: In the US, best practices are a good place to begin. Also, in the US, legislative reform was not the ideal medium for change because that process it too susceptible to interest groups and lobbyists.
• 12:34 PM Tamir Israel - Peter Jaszi: In the US, the courts and best practices were the best medium for protecting the interests of documentary filmmakers. In other jurisdictions, however, the situation could be very different.
• 12:36 PM Tamir Israel - Sean Flynn: From my experience in other jurisdictions, there are always problems with capturing a ‘transformative’ interpreting of fair dealing/use in the text of copyright statutes alone. Some judicial interpretation is required to achieve this.
• 12:39 PM Tamir Israel - Question: In filming a live documentary, people passing through do not require clearance. However, if a trademark product (coke can) happens to be in the shot, do you need clearance?
• 12:40 PM Tamir Israel - Tina Hahn: If there’s a music sample in the background, you need clearance if it is long enough.
• 12:41 PM Tamir Israel - David Fewer: There is no Trademark clearance requirement emerging from such uses of products as there is no confusion. It is a commonly held myth.
• 12:42 PM kaplanmyrth - Social media boffin Mark Blevis asking why incidental appearance of a Coke can in a film needs clearance when incidental appearance of a person does not. David Fewer’s answer: it doesn’t — that perceived need to blur out the Coke can is just wrong in Canada. Peter Jaszi says there’s not such need in the US either.
• 12:44 PM Tamir Israel - Tina Hahn: Burger King sent a cease and desist letter against a filmmaker that showed a drug user getting sick (from druguse) after eating one of their burgers.
• 12:44 PM kaplanmyrth - Peter Jaszi said that C&D letters are not worth much, and should be challenged if you know you’re in the right. Tina Hahn points out that gatekeepers at organizations like the CBC are scared of lawsuits so they tend to cut out use instead. Peter Jaszi: gatekeepers should know better.
• 12:45 PM Tamir Israel - Peter Jaszi: Cease and desist letters do not mean that their claim would have been upheld in court, but are nonetheless intimidating to filmmakers. All this highlights how much confusion there is out there and the need for clarity.
• 12:47 PM Tamir Israel - David Fewer: There is a copyright problem with some logos. You have to show the author and citation – sometimes difficult to do.
• 12:47 PM kaplanmyrth - Sean Flynn says the rule of thumb about incidental inclusion of logos or company names: If you can say it, you can show it.
• 12:49 PM Tamir Israel - Peter Jaszi: Cross licensing arrangements in the US lock out filmmakers as they are not involved in the agreements.
• 12:50 PM kaplanmyrth - We are recording audio of this panel and will have it posted as soon as possible on the Law & Technology website and letsdoccopyright.ca
• 12:50 PM Tamir Israel - Sean Flynn: In South Africa, one thing that has been done is that an organization is collecting and compiling a public archive of material.
• 12:51 PM Tamir Israel - Jeremy de Beer: Closing question: What is the impact of DRM and other digital locks on the documentary industry?
• 12:52 PM Tamir Israel - Tina Hahn: An anti-digital lock provision in the new copyright act would be very detrimental to Canadian documentary filmmakers.
• 12:53 PM kaplanmyrth - Don’t forget to come back to the University of Ottawa for the screening of Brett Gaylor’s movie “Rip!” on March 25th — watch for details here on the blog:
• 12:54 PM kaplanmyrth - Winding up now — thanks for watching everyone. And thanks to Tamir Israel for live blogging with me today!
• 12:54 PM Tamir Israel - Peter Jaszi: In the US, the digital locks provisions in the DMCA are the worst aspect of that legislation and cause immense problems….avoid at all costs in Canada!