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Documentary Access

By Christopher Moore | December 6, 2006

The Documentary Organization of Canada, an association of documentary producers and sponsors of the annual “Hot Docs” film festival, are in the news highlighting the problems filmmakers have with the cost of clearing rights to the material they need.

Their most vivid plea builds on examples of films withdrawn from circulation, or with useful material omitted, because of the cost of clearing rights Clearing rights to fragmentary clips of film or short musical excerpts can cost more than the film itself, they point out. We are losing our films, they say, losing access to what needs to be in our films.

Their letter is worth reading, as is the study by Otttawa lawyer Howard Knopf they are working from (it’s downloadable from the same page). But many of their problems are not exactly copyright problems.

As Knopf points out, “incidental inclusion,” street scenes, shots that include trademarks, etc., are already permitted under the Copyright Act. Too often, the problem is not copyright at all. It’s what Knopf politely calls “risk aversion” by lawyers and insurers that obliges filmmakers into messy and costly searches for clearances in many of these situation.

Doc Org includes film producers as well as film makers, and it’s unfortunate to see its briefing paper alluding to greedy unions as part of the problem restricting Canadian filmmaking — one wonders if the creator side got equal time here. When you read that 7 out of ten of the respondents to their survey agreed that “creators are overcompensated under current law,” you have to think they may speak for creators, but it’s producers they are listening to.

Impoverishing filmmakers is no way to improve the filmmaking climate. But the Doc Org and Howard Knopf have one very useful suggestion in their letter and background paper. They call for study of “a suggested tariff of rates, terms and conditions for use of third party material in documentary films.”

Now there is good thinking. What the film world need is not endless ramifications of new exemptions to copyright and new expansions of existing exemptions. What it needs, what we all need, is a culture of “access and rights.” When the operation of copyright in itself prevents access, clearly we have market failure, for rightsholders have an interest in encouraging, not preventing, access to their work. What is required is a market that can develop reasonable prices and convenient access.

In its suggestion that Canada develop a tariff system for use of third party material, the Doc Org is suggesting how to escape from the situation where you approach a rightsholder for permission, and the rightsholder charges $1 for the rights and $500 for the paperwork involved in these piddling, one-on-one negotiations. DocOrg seems to be pointing toward some kind of clearance centre, one that would apply pre-existing terms and rates negotiated between users and rightsholders, so that permission is virtually automatic, costs are reasonable, and creators are rewarded for the success of their work without users being denied access.

What that points toward is fewer appeals for legislative sledgehammers that attempt to predict and determine what the market for rights should be in every situation and circumstance. What would be much more worthwhile would be a rights marketplace that actually works for filmmakers: one where they pay (and receive) reasonable remuneration for commercial use of copyright material, not one where the search is more costly than the rights.

This kind of marketplace already exists in broadcast music, in photocopy licensing, and in many other fields. Usually the market is created through licensing collectives under the supervision of the Copyright Board. The Doc Org suggestion for a negotiated tariff is a lot more promising than its musings about importing unlimited application of “fair” “use” doctrines (that have not worked particularly well for American documentarians, to say the least) to Canadian filmmaking practice. DocOrg should run with that one.

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