Something for nothing

Faced with tight budgets and a vast footage list, documentary filmmakers are often required to use as many clips as possible that don’t come with a price tag.

Beyond public domain media, the ‘fair dealing’ clause in the Canadian Copyright Act can be an important resource for documentarians to access free content. Fair dealing permits the use of copyright works without permission for the purposes of research, private study, news reporting, criticism and review – and documentary films can fit into the ‘criticism’ category of the provision.

‘When the filmmaker can make a credible argument that the clip is being used for criticism and the amount used is reasonable, there is a strong argument for fair dealing,’ says University of Ottawa professor and lawyer Michael Geist.

Neil Diamond’s recent documentary Reel Injun, produced by Rezolution Pictures and the National Film Board, is an example of a project that could not have been made without the fair dealing provision.

The film looks at the image of North American native peoples as created by movies, and one-third of the $1.7 million doc is made up of film clips that would be hugely expensive to license.

Still, producer Christina Fon says utilizing the fair dealing provision ‘was a long, difficult and torturous road.’

Unlike the U.S. ‘fair use’ provision (which has broad categories like criticism, comment, teaching and scholarship, which docmakers can use to access copyright material without permission), Canada’s fair dealing clause is quite rigid.

As a result, Fon says they had to be extremely careful that they placed critical commentary before or after any non-cleared clip and limit the length of the footage, in order to ensure they fell under the criticism clause.

Fon points out that this can cause some creative dilemmas.

‘A movie with people talking about each clip can be boring, so we actually paid for some Hollywood movie footage so we could just build an entertaining scene without a critical element,’ she explains. ‘So [the fair dealing provision] only works if you can place clips in the context of social commentary without taking away from the creative of your film.’

One of the biggest deterrents of using the clause is that it can be difficult to get errors and omissions insurance – and without insurance broadcasters will refuse your film.

‘The bottom line is liability – being able to get an insurance policy for your work,’ says Toronto filmmaker Stuart Samuels, who is currently dealing with the estates of three of the biggest names in music – Janis Joplin, Jimi Hendrix and Jim Morrison – to access clips for his film 27, about these artists, who all died at the age of 27.

‘In many cases broadcasters want an insurance policy so they know they are protected and you have to convince the insurance companies [of fair dealing], and they are hard to convince,’ he explains.

Sam Coppola, a Montreal-based entertainment lawyer at Borden Ladner Gervais, points out that the fair dealing clause is ‘an exception to copyright and not a right.’ So it may serve as a defence if you are sued but it doesn’t stop anyone from taking you to court, and as a result insurers are wary of uncleared media.

‘Insurers don’t take risks,’ Coppola says. ‘They say when in doubt, clear it. The problem isn’t whether or not it falls under fair dealing, it’s that defending the case be very expensive whether whether you win or lose.’

As a result, many filmmakers feel a culture of unnecessary clearances has developed in Canada and a fear of using fair dealing footage has resulted.

‘Even in situations where there is no need for prior permission, given the ability to rely on fair dealing, some insist on a licence agreement,’ says Geist.

Cameron McMaster, policy and research co-ordinator at the Documentary Organization of Canada, points to a 2005 Kirwan Cox Censorship by Copyright study that found the cost of copyright clearances is growing and now consumes up to 27% of the budget of many docs.

Brett Gaylor, director of RiP: A Remix Manifesto, took advantage of the fair dealing clause to access copyrighted material for his film, and says the problem is that the fair dealing clause is ambiguous.

‘It’s not like you feed your film into a fair dealing machine and get a red card or a green card,’ he explains. ‘It’s all opinion and interpretation. A lot of filmmakers go to a lawyer to help them get insurance and the lawyer makes them take out a whole bunch of things in their film even though it might actually fall under fair dealing. It’s hard enough to make a film without having to leap through all these murky and expensive hurdles.’

Reel Injun received E&O insurance, but Fon says it was a long process that involved teams of lawyers and a lot of give and take.

‘You have to push back if someone is urging you to take an easy way out and clear everything or cut what you can’t clear,’ adds Gaylor. ‘I had to argue to lawyers to keep the clips in RiP. So anything frivolous or that didn’t support my argument or that I might have included for a laugh had to go.’

As a result, the process is time-consuming and legal costs can be high.

‘We went through a pretty rigorous legal procedure and vetted every piece of non-cleared material with a legal team and created a document that had each justification for the material used within both American standards of fair use and Canada’s fair dealing,’ says Gaylor.

But there is some hope that changes to the Copyright Act will be introduced by the federal government in late spring that may make it easier for filmmakers to access footage under the Canadian provision.

In 2009, the federal government held copyright reform consultations and invited submissions from stakeholders. DOC, as well as other groups, advocated for a move away from the current rigid category approach to fair dealing.

In fact, several years earlier, in 2004, the Supreme Court of Canada developed a six-step test to evaluate whether a dealing is fair based on: the purpose, character and amount of the dealing, whether alternatives are available, the nature of the work, and effect of the dealing.

DOC is lobbying to have this six-step test clearly entrenched in the Copyright Act and serve as the only test for fair dealing. They want the five categories (research, private study, news reporting, criticism and review) to be listed only as examples of possible uses, instead of being the exclusive categories, which would offer greater flexibility for filmmakers beyond ‘criticism.’

In mid-March, NDP MP Charlie Angus also called for an amendment to the Copyright Act to expand the fair dealing categories and make it more flexible.

Creative Commons movement

Another emerging avenue for filmmakers to access content is through Creative Commons-licensed content. Launched in 1991 in the U.S. to support fair online content sharing, CC gives creators an alternative to copyright law by allowing them to choose from among six standardized licences for their works.

Some of the licences are restrictive and only allow work to be passed along non-commercially and so long as the creator is mentioned and linked to.

For example, RiP has a CC Attribution-Noncommercial 3.0 licence, which allows anyone to copy or remix portions of the film so long as they attribute Gaylor as the author and do not commercially benefit from the work.

But several of the licences such as Attribution 3.0 allow others to distribute, copy, remix and build upon a work commercially, so long as credit is given to the original creator. This free footage can be a great tool for documentary filmmakers.

Gaylor has chosen to upload RiP’s source material to the website under an Attribution 3.0 licence so that filmmakers can access the pool of raw footage for their own commercial projects.

‘We are working with Ryerson [University] to upload additional raw footage to the site so the goal is to create a pool of material,’ says Gaylor.

He says it’s still early days in Canada in terms of filmmakers finding a wealth of CC stock footage that can be used on a commercial film.

But the movement is growing globally. For example, Al Jazeera in 2009 made some broadcast-quality footage from the Gaza War available under Attribution 3.0 so that filmmakers could get the clips needed to tell their stories about the conflict.

‘As the amount of Creative Commons-licensed content grows, it becomes increasingly likely that filmmakers will find a suitable CC-licensed alternative,’ says University of Ottawa’s Geist.