Vincent Doré is a JD/MBA Candidate at Osgoode Hall Law School and Schulich School of Business.
Documentary films are meant to depict reality. In fact, a documentary’s sole purpose may be to expose the reality obscured by propaganda, censorship and corruption. It is therefore in the public’s best interest to allow documentary filmmakers to depict reality truthfully, without having to alter it in any way. But copyright clearance costs, which currently account for up to 27% of documentary film budgets, are prohibitive.
Fortunately for documentarists, Canadian law has struck a balance between the private interests of creators of copyrighted material, user rights, and the public interest in a way that these costs may be mitigated. To that end, the Copyright Act provides for specific exceptions to copyright infringement that may apply to documentaries. Despite the explicit exceptions outlined in the Copyright Act, Canadian documentarists have typically sought copyright clearance for all copyrighted materials appearing in their films to avoid any potential litigation. While this conservative approach may help perevent negative press, litigation costs and infringement remedies, documentarists have often spent time and money unnecessarily.
The Documentary Organization of Canada (DOC) is a non-profit organization representing the interests of independent documentary filmmakers in Canada. As part of its mandate, the DOC aims to protect documentaries’ “essential role in Canadian society by favouring the expression of diverse perspectives and viewpoints on social, political, and cultural realities, thus promoting reflection and debate,” thereby promoting freedom of expression and serving the public interest. The DOC recently distributed to its members a paper entitled “Copyright and Fair Dealing: Guidelines for Documentary Filmmakers,” (Guidelines) a document outlining the legal framework within which Canadian documentarists operate as well as the legal defenses to infringement available to them. The Guidelines were created to inform documentarists of their rights under the Copyright Act and common industry practices that fall within its ambit. Using this information, filmmakers could avoid unnecessary spending on copyright clearance, making documentary projects more feasible; as we know, naked reality does not generate revenues like the rosy tint of Hollywood films.
A possible explanation for why Canadian documentarists have historically incurred unnecessary costs for copyright clearance is their lack of legal expertise. The DOC should be lauded for its Guidelines because they are written in a manner that makes them accessible to any layperson. Using the Copyright Act and common law as a guide, the DOC provides a comprehensive list (at least to the extent possible) of situations when copyright clearance is not required, as well as comparisons to legislation and jurisprudence in the United States. Some interesting differences emerge from this comparison. For example, “outrageous clearance demands” that have arisen in the U.S. would be precluded by the Canadian Copyright Act which includes an explicit exception for “incidental use,” allowing Canadian documentarists to film reality as it exists, without having to alter it for fear of copyright infringement (for example, by blurring out or removing advertisements that appear in the background of a scene shot at Dundas Square).
The Copyright Act thus adequately considers user rights and the public interest by allowing documentary filmmakers in Canada to bring to viewers a true depiction of reality without prohibitive and unnecessary copyright clearance costs. For instance, the Guidelines state that the use of copyrighted material “for the purpose of critiquing or reviewing the composition of the material, or the views expressed in the material,” does not require copyright clearance if the use meets the requirements of “fair dealing,” and the source and author of the material are mentioned (it is noteworthy that U.S. law does not require the mentioning of source and author). Therefore, the use of copyrighted material may not require clearance, even if it undermines the market of the original work. However, the creator of the original work can be comforted by the fact that a documentary that is a substitute for or competes with the market for the original work without copyright clearance is less likely to be held to be "fair".
It must be understood by all parties that at the heart of this issue is documentarists’ Constitutional right to freedom of expression. Canadian law seems to have found the appropriate balance of the many interests involved in the filming and production of documentaries, and provides a legal framework that protects the private interests of the creators of copyrighted material while promoting user rights, public interest, and freedom of expression.