Balancing on an Eyebeam

23 mins read

Documentary filmmakers and policy advocates from Montreal’s Kirwan Cox to Markham Street Films producer Michael McNamara to DOC (Documentary Organisation of Canada) Executive Director Samantha Hodder hope by the time the federal government introduces long-planned amendments to the Canadian copyright act they will strike a new balance between the rights held by owners of copyrighted works and the rights of content users.

The question currently raging in Canada’s doc community is whether amendments expected to be tabled in fiscal 2007-08, will reinforce or refute the legislative tendency to provide what some regard as excessive protection for copyright author/owners at the expense of users. A few significant court rulings suggest Canadians might negotiate their way to a better balance, but legislative or industry leadership, or both, should be more efficient.

Everyone is concerned because non-fiction producers, who rely so much on accessing the old to illuminate the new, say they’ve been paying too much to obtain access in recent years- to clear images and music and third-party rights, and then to obtain Errors and Omissions (E&O) insurance. Now they’re working had to ensure the next phase of copyright reform reflects their input, through a 2006 White Paper and a forthcoming best practices document. But more on them later.

Copyright in the True North: strong and free for rights holders only

The Copyright Act has seen multiple revisions since its proclamation in 1924. The most recent amendments, via Bill C-60 in 2005, were expected to focus on unauthorized use of copyrighted works on the Internet. But David Fewer, staff counsel for CIPPIC, the Canadian Internet Policy and Public Interest Clinic, said the bill also touched on “photography, sound recordings, and performers’ rights issues. And on each issue, it is the rights holder community that benefits.”

In the end, C-60 died on the Order paper. Docmakers want any new amendments to help cut the costs and simplify the process of accessing copyrighted works and ensure users better understand the somewhat shadowy concept of “fair dealing.”

Even after 35 years in production- during which time he says he’s never faced an E&O legal claim- White Pine Pictures producer and director Peter Raymont says he’s not clear what “fair dealing” means. “Those mushy regulations are being interpreted by entertainment lawyers and the E&O companies’ lawyers.” It’s all a negotiation and producers need to “have a sharp lawyer, who’s done it before, to negotiate for you.”

Fewer says fair dealing, a statutory requirement here, means “dealing with works that is substantially fair.” It provides “a safety valve that freedom of expression requires in copyright.”

The first test to be met when claiming fair dealing is that the use must be judged fair according to the courts. They consider a range of factors, including whether the new work competes with the original, or uses too much of it. Secondly, a use qualifies as fair dealing only if it fits into any of five categories: private study, research, review, news summary or criticism. Under the third requirement, if the copy is used for review, news summary or criticism, users have to name the source and author. US users work with less restrictive “fair use” rules, and don’t have to meet requirements two or three.

A White Paper prepared for DOC last year by Ottawa lawyer Howard Knopf recommends, “The existing fair dealing ‘news reporting’ provisions should include a proviso that attribution credits be given only where ‘reasonable’ in the circumstances and the exception should be explicitly extended to include documentaries.” Filmmakers hope any amendments retain the predictability of fair dealing while adding the flexibility of fair use.

After 70 years, Supreme Court loosens ties that bind fair dealing

Until recently, Fewer points out, lower courts tended to interpret fair dealing narrowly: for instance, criticism of a copyrighted work could only be deemed fair if it took the form of literary criticism. New possibilities opened up in 2005 when a Supreme Court of Canada (SCC) decision —although not referring specifically to documentaries—indicated “we would have to construe fair dealing ‘purposively’ (emphasis added),” which means it shouldn’t be considered a restrictive right. That decision is “trying to preserve a sphere for democratic engagement,” a free discussion of ideas, that should not be restrained by copyright.

Less copyright restraint? Bring it on! According to a survey commissioned by DOC last year for inclusion in the White Paper, while makers recognize the value of copyright-protected productions, they feel much more the victims of “extensive copyright protection than they are the beneficiaries.”

So says DOC board member and freelance producer Kirwan Cox, who adds that collecting copyrighted material is much more germane to documentary filmmakers than to drama producers. Survey results also show docmakers believe the various cost, accessibility and licence period issues connected to obtaining copyright clearances have made the process unfair to them and help dilute a film’s “reality” quotient.

Judy Holm, co-president of Markham Street Films, can relate. For 100 Films and A Funeral, a doc on Polygram Filmed Entertainment, she was able to procure enough minutes of film footage, but adds, “We were virtually unable to use films outside of the two major deals we had with studios, because of the expense. This…definitely impacted on how we were able to tell the story.”

“Once upon a time,” says Cox, “people saw stock and historical footage as useless, and it was dirt cheap. Now it’s outlandishly expensive…as costs go higher than the market can bear” and rise faster than the rate of inflation, he adds, pointing at stock footage conglomerates as chief offenders. “Lots of classic films, especially from the NFB, hadto be withdrawn (from distribution)” because producers couldn’t afford to renew the rights. When content ends up on the proverbial cutting room floor, many voices cry censorship, saying clearance chill saps the reality from their films.

Time now for copyright regime change

Fewer says anyone trying to use the fair dealing defence should reinterpret their decisions on clearance requirements based on the 2005 SCC decision. There’s been little case law since, but that decision along with a Quebec case in which a judge ruled that parody can benefit from fair dealing—so long as it’s fair—indicates there’s some hope that more types of content will qualify.

he White Paper recommends that in new copyright legislation, “Explicit provision should be made for fair dealing for the purpose of satire and parody.” What’s more, Fewer wants the legislation changed so that instead of enumerating a finite number of exceptions to copyright infringement, it would state that examples given are not an exhaustive list.

He says everyone should be more aware of the exception available for incidental inclusion, or “things that appear in your film and attract copyright attention” although you wouldn’t expect them to do so. Think of background images, such as paintings, appearing in an interview conducted in an art gallery.

While this exception has been helpful in Canada, he says images, often trademarks, “are pixillated all the time. This is an imposed cost,” whether makers pay to clear an incidental item, or pay to pixillate it in post.

Fewer and the White Paper discuss other needed changes in copyright legislation, including fair dealing on published interview material, unlocatable owner provisions, and overcoming technological restrictions. This is the road to the “sweet” balance between owner and user rights.

Finding an owner/user balance: from DOC’s White paper to Canada’s own best practices template

Canada needs fair dealing guidelines that provide the courts and users with a community consensus on standard industry practice. At DOC’s request, Fewer and his colleagues are working on a best practices document.

Users “are getting to the point where the (owners’) excessive pushing of intellectual property rights is harmful, and are starting to push back. The question is, are documentary filmmakers’ voices strong enough to be heard?”

Advocates in the US say there’s proven strength in these voices. Pat Aufderheide, director of the Center for Social Media, is one such advocate. She worked alongside Peter Jaszi, a Washington College of Law professor involved in intellectual property issues, to consult with copyright stakeholders and draw up a statement of best practices.

Aufderheide says the project’s philosophical underpinnings marry her understanding of media makers’ copyright problems with Jaszi’s argument that the “prizing” of the content author as a creator seriously undermines creativity in general. Jaszi, she says, sees the act of balancing the rights of owners and users — without impairing authors’ rights — as a form of freedom of expression.

In a recent article for the IDA’s Documentary magazine, Aufderheide notes that before the statement was two years old, a number of opinion leaders—from the four major US E&O insurers, through several public broadcasters and cablecasters to the “leading association of copyright attorneys”—either endorsed it or adopted it into business practice.

What’s more, she says the statement paved the path to production for a music-focused doc formerly hobbled by projected clearance costs, and helped other producers negotiate millions in savings on licensing costs, including “$400,000 on one film alone, IFC’s (Independent Film Channel) Wanderlust.”

Voices of protest rising in Canada, too

Canadian docmakers say they live in a “clearance culture” that encourages producers to self-censor. Incomplete clearance may mean E&O insurance denied, which would nullify chances for a completion bond, distribution. . .

“It affects your ability to tell the story, and not just from a financial standpoint,” says Michael McNamara, co-president of Markham Street Films. He notes that post-production on Markham Street’s current production, 100 Films and A Funeral, was pushed back more than three months because of copyright clearance issues. “Naturally, insurers don’t want to give insurance to anyone or anything they think is a risk. That’s the nature of that business and that is understandable. But it seems the interpretation of what is allowable and within the rights of an artist or filmmaker seems to be narrowing to the point of being unreasonably and overly cautious. And this becomes restrictive and severely intrudes on our ability to tell stories.

“There is an increasing insistence that anyone (or thing) discussed or depicted in a documentary story must give consent to be discussed and depicted. And of course, who is going to give permission to be criticized or analyzed? It makes no sense. There were people we contacted (for) clearances . . . who were genuinely puzzled to hear from us. They said, ‘Um, aren’t you making a documentary? Aren’t you already free to use this image because you are making an editorial comment?’ (We answered), ‘No. I’m calling from Canada. Our lawyers say we need your permission.’” McNamara says rights holders then tended to ask how they would use the content in question, or demanded exorbitant fees for it, or set up long timelines for a decision.

In the last year, DOC surveyed its members on various insurance-related issues. The response rate was very high. One significant result from the study was that none had faced E&O litigation in the past five years. As Cox says, “There’s an entire industry not based on true risk.”

“It’s a climate of fear,” says Raymont, who says he drew on some 35 sources to amass images for A Promise to the Dead: The Exile Journey of Ariel Dorfman (2007), screening at TIFF. “After 9-11, insurance costs went up in general, so they just raised E&O rates as well.”

Is copyright killing documentary?

“The fundamental problem,” McNamara continues, “is an arbitrary dividing line between what is ‘news’ and what is ‘documentary’. In Canada, journalists are allowed free access to (a majority of) images and people without prior written consent because they are presenting current news or criticism. But as Canadian insurers are interpreting things, this right to access images and materials has some sort of stale date. If a critical analysis of something is not presented as a news sound bite or a review in a daily paper or news program within a certain period of time, but is… placed in the context of a documentary, that access is no longer freely (available).”

In the current “clearance culture” environment, he adds, his sense is that no space is public, that obtaining clearances where everyone approves of how their content will be used will lead to an absence of conflict, which is the basis for story. “So in effect, clearance culture is killing documentary.”

Tomorrow and tomorrow: what will a best practices statement mean in Canada?

“Now, it’s even more important, because broadcasters don’t want any exclusions,” says Elizabeth Klinck, a visual researcher who has been clearing image and music rights for filmmakers for many years.

Klinck, who lists some of Canada’s best and brightest filmmakers on her CV, says the move towards a best practices document is gaining strength now because producers have reached a “high level of frustration…. Access to the collective memory of Canadians will be shaped by how much it costs to clear it.”

She says consolidation of rights holders’ organizations is continuing, as is media concentration. “Look at how many media companies have combined in Canada over the last (several) months,” at how many archives consolidated. The clearance zone is becoming a David and Goliath fight in which David has precious little room to negotiate.

Then again, documentaries are partly falling victim to their own success, as titles such as Bowling For Columbine (2002) strike for big box office and shimmer in auxiliary markets. Success is good, says Klinck, but it makes it harder to clear rights while claiming poverty.

Richard Hanet, a partner in entertainment firm Lewis Birnberg Hanet who has commented on the White Paper, says legal opinions will still be required, even with a best practices document in place, because the Act doesn’t clearly indicate what can be used without a licence. He says insurers tell him it’s the lawyer’s job to guide them on best practices.

On the other hand, since courts do note industry practice, if a best practices statement demonstrated industry unity on certain issues, it might help courts adjudicate. He also says people tend to expect these documents to accomplish more than they can.

Changes to the Act are important to ensure that, as intellectual property rights gain, “more and more respect,” the rules don’t hamstring new creators, he adds.

“With the new platforms coming along, people have to become more expert,” says Rudy Buttignol, interim head of B.C.’s Knowledge Network. “It’s the tradition long sought after, that intellectual property has value, and people want to be compensated.”

Nevertheless, he doesn’t think users should be forced to clear everything. Broadcasters should show leadership, common sense and fairness in assessing work, and he tends to favour filmmakers since the costs of unnecessary insurance coverage and legal work don’t show up on the screen. Buttignol reasons that the prevalence of clearance issues will encourage filmmakers to shoot original material.

A best practices document would help, he says, if it provided a set of tests, for instance, and is supported by all concerned. “It may give people some breathing room,” he concedes, but expects obtaining clearances to become “more onerous, not less.”

And for now?

Back at DOC, executive director Samantha Hodder says when the best practices document is ready, “it would be prudent to do some kind of ratification process and . . . try and get (consensus) from various parties…. We want to get away from the situation where lawyers are editing films. This is a worst case scenario that we know is happening in some places and we want to avoid it.”

It would be preferable, she says, for producers to have a copyright/fair dealing tool kit, and be conversant with the law so they can argue their case.

Meantime, Hodder hopes to roll out a group insurance plan for her members in stages, hopefully beginning this fall, to address “inadequacies in the field for documentary filmmakers” such as the general liability rates for small production companies. The longer range plan is to tackle the E&O issue with some sort of group plan.

And, while some observers have predicted that fiscal 2007-08 will see progress on copyright reform, at press time, everyone is still waiting, and feeling the frustration build

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