Samantha Hodder is the executive director of the

Documentary Organisation of Canada.

Have you heard the joke about an incidental ring tone in Mad Hot Ballroom costing $10,000 to clear? Or the $5,000 it cost to clear the ‘Happy Birthday’ song heard at a family get-together in Hoop Dreams? Unfortunately, these jokes aren’t funny, they’re true. But not in Canada, you say.

Picture this: you are documenting your lead character as she walks down Yonge Street in Toronto, telling her life story. It’s a once-in-a-lifetime opportunity to capture these moments on camera. She reveals all, unaware of the incidental media blasting out all around her.

Consider the corporate logos and incidental copyrighted material she would pass along the way: HMV blasting out popular tunes, Gap beaming its celebrity ads, and the giant LG pixel board playing White Christmas. Hazard a guess at incidental use of this 1954 Hollywood classic, starring Bing Crosby?

If this scene were already shot, somewhere in the documentary world right now some lawyer would be thinking hard about whether to sign off on these corporate uses of public space. It is certain that this lawyer would ask the producer if it ‘was really necessary’ to include this scene.

Why should we tolerate corporations owning our public space and having the power to censor our films? Documentary filmmakers record people as they live their daily lives, but asking them to repeat ‘scenes’ or do ‘pickups’ is increasingly common. The job of documenting reality is fast becoming an unfortunate casualty of the corporate media age.

In Canada, examples of documentary producers forking over big cash for incidental costs such as intrusive background music, or a cell phone ring tone, are not yet common, and our Copyright Act does offer some support.

The ‘fair dealing’ and ‘incidental use’ provisions, in principle, address many clearance issues. In practice, uncertainty remains and clearance costs continue to spiral out of control. Some doc producers are now doling out 30% of their shrinking budgets to license the materials they need to tell their stories, according to a recent study.

Nothing short of Canada’s rich tradition of documentary filmmaking is at stake here, both past and future. The National Film Board can’t afford to relicense archival footage in The Champions, Donald Brittain’s trilogy exploring the intertwining lives of Pierre Trudeau and René Lévesque, or Paul Cowan’s controversial The Kid Who Couldn’t Miss, about flying ace Billy Bishop. Two classic docs made with public funding are out of public circulation.

Add to this the strain on budgets of national institutions that hold public archives, the rising cost of image rights, and we are starting to have an unsightly mess. The net effect is an average of eight NFB films withdrawn each year due to the cost of rights clearances. Who knows how many independent films suffer the same fate?

The combination of all of these copyright anxieties is beginning to create a chilling effect on the documentary community. Shouldn’t lawyers be pushing to amend Canadian copyright law to protect its creators?

On Dec. 5, 2006, the Documentary Organisation of Canada released a white paper, The Copyright Clearance Culture and Canadian Documentaries, and sent a letter signed by more than 130 of Canada’s best-known documentary filmmakers to Canadian Heritage Minister Bev Oda and Industry Minister Maxime Bernier, outlining our concerns and offering recommendations to reform copyright law in Canada.

DOC asks Parliament to consider four essential principles for a new Copyright Act:

1. Update the concept of ‘fair dealing.’ DOC encourages the government to provide greater legal clarity in recognizing the importance of users’ rights and the freedom of documentary filmmakers to engage public space.

2. Protect creativity, not technology. The government is considering granting legal protection to technological barriers (such as digital locks) that protect copyrighted material. These locks could have the reverse effect of granting censorship powers to media companies at the cost of documentary filmmakers.

3. Move away from the ‘clearance culture.’ Many uses of intellectual properties in documentary films do not require clearance. Sometimes documentary films are held ransom by overreaching demands of copyright owners. The government should explore ways to address these failings of the current copyright system.

4. Improve accessibility to public archives. Due to budget cutbacks, many of our national treasures have been turned into a revenue source. As archival footage of Canadian history becomes more expensive, fewer documentaries reflecting our past will be produced.

DOC urges everyone who wants to see a fair balance between users and rights holders to speak out. Visit our website, send letters to the Hon. Bev Oda and the Hon. Maxime Bernier. Talk to your MP, and if you aren’t already a member, join DOC.

www.docorg.ca