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GRANT OF LICENSE
When you upload or post content to Open Source Cinema, that content becomes public content and will be searchable by and available to anyone who visits the Open Source Cinema site. Open Source Cinema does not claim ownership of the materials you post, upload, input or submit to the Open Source Cinema site. However, by posting, uploading, inputting, providing or submitting your content to Open Source Cinema, you are granting Open Source Cinema, its affiliated companies and partners, a worldwide, revocable, royalty-free, non-exclusive, sub-licensable license to use, reproduce, create derivative works of, distribute, publicly perform, publicly display, transfer, transmit, distribute and publish that content for the purposes of displaying that content on Open Source Cinema and on other Web sites, devices and/or platforms, and for creating film works collaboratively with filmmakers, audiences and subjects. Open Source Cinema is an open platform and designed for the free exchange of content and ideas and the collaborative production of films – to that end you agree that your work may be used by filmmakers using this platform. As such, there are two license which are granted. One happens when you register and upload, the other is up to you.
License 1 - Upload
When you upload or post content to the Open Source Cinema site, you grant Open Source Cinema a license to distribute that content, either electronically or via other media, to users seeking to download it through the Open Source Cinema site or for purposes of other services provided by Open Source Cinema and to display such content on Open Source Cinema affiliated sites. This license shall apply to the distribution and the storage of your content in any form, medium, or technology now known or later developed as necessary for us to provide the Open Source Cinema services as they now exist or are developed in the future.
License 2 – Others use of your material
When you upload content to Open Source Cinema you will be asked to select a Creative Commons license, which is additional to the license you grant to Open Source Cinema and its affiliated companies and partners. This license will govern how third parties may use your content. You can designate this license to be a Creative Commons License (see http://www.creativecommons.org) or a "public domain” license, in which case you are disclaiming all copyright to the work for the benefit of the public at large. You agree that Open Source Cinema may make your content available to third parties, subject to such third parties abiding by the terms of this secondary license. While Open Source Cinema will advise its third-party content partners of the secondary license you select and request that the terms of such license be and is observed, you acknowledge that it is not Open Source Cinema's responsibility to enforce this secondary license and Open Source Cinema cannot guarantee that your secondary license will in fact be observed by any third parties.
You may remove content you have posted on Open Source Cinema at any time. When you delete content from Open Source Cinema, such deleted content, while not available to the viewing public and other Open Source Cinema users, will remain on the Open Source Cinema server until such time as you make a specific request to Open Source Cinema for permanent deletion of such content from the Open Source Cinema server. Such requests must be made in writing, via email, to Open Source Cinema customer service at the following address: support@opensourcecinema.org. When you do remove your content, the license described above will automatically expire. We cannot guarantee that content deleted from Open Source Cinema or permanently deleted from our servers will be deleted from the Web sites or systems of third parties. If you would like your content removed and/or permanently deleted from any Web sites other than Open Source Cinema, you will be required to contact such Web sites directly, and we cannot guarantee any outcome, action or result with respect to any such request by you.
COPYRIGHT
The names, images and logos identifying Open Source Cinema are proprietary marks of Open Source Cinema, its associated companies and/or affiliates. Nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or right under any trademark or service mark of Open Source Cinema, its associated companies and affiliates, or any third party unless expressly stated otherwise.
You shall be solely responsible for your own content and the consequences of posting or publishing said content. In connection with all content that you upload to Open Source Cinema, you affirm, represent and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Open Source Cinema to use, all patent, trademark, trade secret, copyright or other proprietary rights in and to said content, including without limitation any musical recordings contained therein; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in any uploaded video to use the name or likeness of each and every such identifiable individual person in the manner contemplated by the website and these Terms of Use, or (iii) that the uploaded material constitutes Fair Use or Fair Dealing according to the “Fair Use and Fair Dealing” guidelines below.
If you believe that any of your intellectual property rights have been violated (e.g., your copyright or trademark infringed) by material available on the Open Source Cinema, you will need to provide, at a minimum, the following information immediately:
* The nature of your complaint and an exact description of where the material about which you complain is located within the site;
* In the case of a copyright/trademark dispute, identification of the copyrighted/trademarked work that you claim has been infringed and a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright/trademark owner, its agent, or the law;
* Your name, address, telephone number, and email address;
* A statement by you that the above information is accurate and, in the case of a copyright/trademark dispute, that you are the owner of the copyright/trademark involved or are authorized to act on behalf of that owner; and
* Your electronic or physical signature.
It is our policy to respond to notices of alleged infringement that comply with the US Digital Millennium Copyright Act. For directions and more information on our copyright policy and procedure for reporting alleged copyright infringement, please click here.
Our goal is to promote the free-flowing exchange of expression relating to members interests, activities and hobbies while maintaining high standards of respect and decency. In order to attain this goal, and in addition to the other content and/or action restrictions set forth in these Terms of Use and elsewhere on the Open Source Cinema website, the following content is prohibited on Open Source Cinema:
* Content involving nudity, including but not limited to, nudity or partial nudity of children of any age.
* Content that exploits children or minors or that discloses any personally identifying information beyond a first name about persons under the age of 18.
* Content that disseminates personal information about another individual for malevolent purposes, including libel, slander, defamation or harassment.
* Content that has as its sole or primary purpose to advertise a particular product or service that, in the sole judgment of Open Source Cinema, does not otherwise have redeeming value to the community. Open Source Cinema may allow the uploading of some such content for a fee, at its sole discretion. Such advertising content may be treated differently than other content (i.e. through indications that it is an advertisement, or exclusion from some indices or searches).
* Content that is or may be deemed to be grossly offensive to the online community, including but not limited to, blatant expressions of bigotry, prejudice, racism, hatred and profanity.
* Content promoting or providing instructional information about illegal activities.
* Content depicting cruelty to animals.
* Copyrighted content or material that is used without the express permission of the owner.
* Content intended to abuse, harass, stalk, threaten or otherwise violate the legal rights of others (such as the rights of privacy and publicity).
* Content that contains software or other material protected by intellectual property laws unless you own or control the rights thereto or have secured all necessary consents and/or licenses.
* Content or other material that contains viruses, corrupted files, or any other similar software or programs that may damage the operation of Open Source Cinema servers or another users computer.
* Content that violates any applicable laws or regulations not specifically referenced herein.
As a condition of your use of the Open Source Cinema site, you warrant that you will not use the services offered on the site for any purpose that is unlawful or prohibited by these terms, conditions, and notices. You may not use the Open Source Cinema site in any manner which could damage, disable, overburden, or impair the Open Source Cinema site or interfere with any other parties use and enjoyment of the Open Source Cinema site. You may not obtain or attempt to obtain any materials or information, including but not limited to, software and other Open Source Cinema proprietary materials, through any means not intentionally made available or provided for through the Open Source Cinema site.
Open Source Cinema has no obligation to monitor the content which has been uploaded to the Web site for compliance with the foregoing. However, Open Source Cinema reserves the right to review materials uploaded to Open Source Cinema and to remove any materials in its sole discretion for any reason or no reason, at any time, with or without notice to you. Open Source Cinema reserves the right to terminate your access to any or all of the services offered by Open Source Cinema at any time without notice for any reason whatsoever.
Open Source Cinema does not control or endorse the content, messages or information found in any user-generated content or uploaded material and, therefore, Open Source Cinema specifically disclaims any liability with regard to such user-generated content or uploaded material and any actions resulting from such user-generated content or uploaded material.
You agree to use the services provided by Open Source Cinema only for their intended, lawful purposes and in accordance with all applicable laws. You agree not to use Open Source Cinema in any manner that interferes with its normal operation or with any other users use and enjoyment thereof. You further agree that you will not access, or cause others to access, Open Source Cinema through an interface or in a manner that would interfere with the monetization of Open Source Cinema-hosted content or the honoring of copyright licenses attached to Open Source Cinema-hosted content. You also agree that you will not access Open Source Cinema from any territory where its contents are illegal.
Open Source Cinema does not endorse any user-generated content or any opinion, recommendation or advice expressed therein, and Open Source Cinema expressly disclaims any and all liability in connection with user-generated content. If notified by a user or a third party of uploaded material that allegedly does not conform to these Terms of Use, Open Source Cinema may investigate the allegation and determine in good faith and in its sole discretion whether to remove the user-generated content.
A Simple Guide To Fair Use, Fair Dealing and Open Source Cinema
If you are going to create remixes for our site, there are a few things you should know about copyright law, "Fair Use" (relevant in the US), and “Fair Dealing” (relevant in Canada). Below is a very brief summary pertaining to these areas of copyright law.
Fair use – United States
Many artists and creators are encouraged to create new works because they know that copyright law protects those works. Copyright law gives creators the exclusive right to:
* Make copies of their work.
* Make adaptations and translations, or what is known as "derivative works," from their work.
* Publicly distribute and perform their work.
But the law also understands that creative work often builds on the work of others. As Judge Alex Kozinski (of the U.S. Court of Appeals for the Ninth Circuit) wrote:
* "Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before."
No one understands "building on the works of those who came before" more than remixers and mash-up artists. We take elements from our culture and use them to create new expressions and new ideas. We’re able to do that because there is an area of copyright law where the exclusive rights granted to creators are limited in order to accommodate free speech – that’s Fair Use.
Fair Use lets you use copyrighted material in order to:
* Make a social or political critique or satire.
* Create a parody.
* Make an argument.
* Report on the news.
* Educate the public on an important issue.
We link to the full text of the Fair Use statute, and to some other helpful websites, below. Because there are no bright lines concerning Fair Use, we suggest that you consult these sites to learn more about it. You don’t infringe copyright when you use copyrighted material that you find on the web as long as it is a "Fair Use" of the material. Whether you use our editor or upload a remix that you’ve made on your own computer, we’ll ask you [are we actually going to ask?] if the material you’ve uploaded contains copyrighted material that is "Fairly" Used. [Whether you use our editor or upload a remix that you’ve made on your own computer, you can use copyrighted materials only to the extent permitted by Fair Use.
Perhaps the most important factor to consider when judging whether the material you’ve used would be covered under Fair Use is:
"Did you use only as much material as you needed to:
* Get your point across.
* Report the news.
* Create a true parody or satire."
Open Source Cinema is a non-partisan, educational website. We are here to promote a new kind of political discourse, from many points of view. We encourage our users to use historical documents that can educate our audience. We encourage you to create remixes that will be part of our mission.
Links:
* U.S. Copyright Office: http://www.copyright.gov/fls/fl102.html
* Indiana University: http://www.copyright.iupui.edu/fairuse.htm
* Stanford University Fair Use Project: http://fairuse.stanford.edu
* New York University: http://fairusenetwork.org
* University of Texas: http://www.utsystem.edu/ogc/intellectualproperty/copypol2.htm
* American University Center for Social Media: http://www.centerforsocialmedia.org/resources/fair_use/
Fair Dealing – Canada
*The following is reproduced from “Copyright and Fair Dealing: Guidelines for Documentary Filmmakers”, by David Fewer. These guidelines were originally intended for Documentary filmmakers. Please bear in mind that context when interpreting them. And remember, Open Source Cinema itself will always have final say on whether or not we are able to consider your remix “fair”, and will always reserve the right to remove content that it deems outside the boundaries of either “Fair Use” and/ or “Fair Dealing”
Background
The Canadian Copyright Act balances the public interest in the encouragement and dissemination of works with the private interests of creators in obtaining a just reward for their work. In the context of documentary films, two sets of defences to liability for copyright infringement assist documentary filmmakers: (1) the incidental use and public space exceptions, and (2) the fair dealing defence.
Incidental Use and Public Space
Documentary filmmakers may include all or part of another work in a documentary film where the inclusion is incidental and not deliberate. This exception relieves documentary filmmakers of the need to clear rights in, for example, logos and trade-marks, music (including mobile phone ring tones), and billboards that might appear in a street scene of a documentary film. This important exception bars in Canada some of the most outrageous clearance demands that have arisen in the United States, which lacks a similar explicit exception (although the American Documentary Filmmakers’ Statement of Best Practices in Fair Use views that such inclusions qualify as fair use).
Documentary filmmakers can also film buildings and sculptures permanently situated in public. This exception permits documentary filmmakers to film Canadian buildings or publicly situated sculptures, no matter how well known they may be and no matter how prominently they might figure in the scene.
These rights are in addition to, and not substitutions for or limitations of, filmmakers’ fair dealing rights. In other words, use of a copyrighted image might be non-infringing as both a fair dealing with a work and an incidental use of that work.
These rights are useful to documentary filmmakers not only for relieving them of onerous and expensive clearance burdens, but also for relieving them of the obligation to “blur” or edit out uncleared trade-marks, music, statues, and buildings facades. Together, these rights ensure that documentary filmmakers are able to document reality: they reserve public space to the public.
Fair Dealing
Fair dealing provides a framework that allows for the unlicensed use of copyrighted materials for specific purposes. The fair dealing test requires a documentary filmmaker to answer three questions positively:
1. Is the dealing for a permissible purpose?
2. Is the dealing fair?
3. Has the filmmaker mentioned the author and source (in the cases of criticism, comment, or news summary)?
1. Is the dealing for a permissible purpose?
The Copyright Act permits a fair dealing defence in the case of only five types of dealings: (1) private study, (2) research, (3) criticism, (4) review, and (5) news summary. If a dealing is not for one of those five purposes, no matter how fair the dealing may otherwise be, then the fair dealing defence is not available.
Documentary films, by their nature, fall squarely within the ambit of many of these purposes. Each of the five categories of dealings is interpreted purposively. “Criticism”, for example, does not mean criticism in the academic or literary sense, but should be interpreted to include critical commentary, challenging viewpoints, and even parody when undertaken with a genuine intent to criticize the parodied work. Similarly, “review” should be interpreted to include not just commentary on artistic merit, but factual review and disclosure of facts and events. “News summary” should extend beyond the evening news and morning paper to benefit documentaries that pull together facts and events: the Canadian provision is not limited to reporting on current events, as it is in such jurisdictions as the United Kingdom and New Zealand. The emphasis should be on the expression’s factual or historical nature, not the timeliness of the statement.
“Research” and “private study”, in contrast, are private – not public – acts that assist filmmakers in the preparation of their films, but do not excuse the need to clear rights in anticipation of distribution and public performance.
2. Is the dealing fair?
The heart of the defence of fair dealing is the fairness of the treatment of the work. The Supreme Court of Canada has set out a non-exhaustive list of six factors that are to be considered by the courts in determining the fairness of a given dealing. These factors will be tailored to the facts of a case, and in some circumstances it will not be necessary to apply all six.
(1) The Purpose of the Dealing: Courts will make an objective assessment of the filmmaker’s real purpose or motive in using a copyrighted work, not their subjective belief.
(2) The Character of the Dealing: Courts will examine how a copyrighted work is dealt with. The custom or practice in a particular trade or industry may assist in determining whether or not the character of the dealing is fair. These Guidelines seek to set out accepted practices within the documentary community with a view to providing courts with guidance in just this inquiry.
(3) The Amount of the Dealing: Courts will examine both the amount of the dealing and the importance of the copied selection to the work allegedly infringed. Even an entire work may be fairly copied in some cases. This is particularly true for artistic works and photographs, which are not usually dealt with other than as entire works.
(4) Alternatives to the Dealing: Courts will consider whether there is a non-copyrighted equivalent of a work that could have been used, and whether the dealing was reasonably necessary to achieve the (new) work’s purpose. For example, the court might consider whether a given criticism would be equally as effective if it did not reproduce a copyrighted work.
(5) The Nature of the Work: It is more difficult to deal fairly with confidential or unpublished content than with published material. One can deal fairly with an unpublished work where doing so, for example, serves the goals of freedom of expression generally: the advancement of knowledge or the pursuit of truth.
(6) Effect of the Dealing on the Work: A reproduced work that substitutes for, or competes with, the market of the original work is less likely to be held to be fair.
This short discussion of the factors a court will consider in assessing the fairness of a dealing is far from complete. However, filmmakers should appreciate that neither demand for payment, nor the availability of a license, nor the failure to acquire a license, has any bearing on the fairness of the dealing or the applicability of the defence. Each case depends on its own particular facts.
3. Where required, has the author and source been mentioned?
When engaging in fair dealing for purposes of criticism, review or news reporting (but not for private study or research), the Copyright Act imposes the additional requirement to “mention” the source and (if given in the source) the author of the work. Again, no matter how fair the dealing, if the filmmaker neglects to mention the source and author, then the defence is unavailable to those engaged in criticism, review or news summary.
The use of credits at the end of documentary films, or onscreen captions, should satisfy this obligation. Oral attribution through voiceovers also likely fulfils this requirement. However, it is not clear what other kinds of attribution satisfy the requirement to “mention” source and author. On the one hand, the Act’s use of a casual term (“mention”) signals that it requires something less than academic standards of attribution. On the other hand, at least one court has held that a parody does not intrinsically “mention” its target despite having successfully conjured up that target. Further, it is not clear how a simple photograph or musical work can “mention” an author or source. Elsewhere, documentary filmmakers have called for the repeal of this requirement. Until such time as it is repealed, however, documentary filmmakers should be vigilant with their credits and captions.
Guidelines
These Guidelines are organized around four classes of dealings that documentary filmmakers regularly engage and regard as legal, fair, and not requiring clearance. These Guidelines offer, for each class of dealing, (1) a description of the dealing followed by (2) an outline of the principles that support the legality of the dealing and (3) a discussion of the Guideline’s applicable limitations. These Guidelines will also comment on the differences between American “fair use” and Canadian “fair dealing” where doing so will help clarify the nature of the dealing, legal principle, or limitation at issue.
Documentary filmmakers may encounter situations other than those addressed in these Guidelines which might also qualify as fair dealings with copyrighted materials. In every case, a documentary filmmaker must carefully consider the facts of the dealing to determine whether the dealing ultimately falls within the ambit of an exception to copyright infringement.
One: The non-deliberate filming of copyrighted material (captured during the process of filming something else)
Description: It is typical for documentary filmmakers to unintentionally capture copyrighted content in the background of what is being filmed (e.g., posters on the wall, cell phone ring tones, the playing of a song on a stereo/radio, the playing of a movie/television program, etc.). In many cases it is difficult, if not impossible, to avoid capturing copyright-protected materials when filming. Eliminating these materials from a film (e.g., asking a subject to turn off a radio, remove a poster from his wall, etc.) forces the filmmakers to alter the reality being documented.
Principle: The filming of these materials should be recognized as an “incidental inclusion” of copyrighted material, and thus an exception to copyright infringement under the Copyright Act. This exception will apply to these practices where two conditions are met: the inclusion of the copyrighted work must be (1) incidental, and (2) not deliberate. Courts have interpreted “incidental” to mean an activity that is “casual, inessential, subordinate to a principal activity, or merely background”. This definition encompasses materials that appear in the background of a documentary, are of limited importance, and not the main focus of a film or subject of a scene. The Supreme Court of Canada has defined the term “deliberate” to mean “considered, not impulsive” in the criminal law context, and that is a reasonable interpretation of the Copyright Act’s use of the term. The “deliberateness” requirement applies to the inclusion of content, not the setting. One might deliberately select a specific setting for a scene – say, Yonge Street at midday – without also having deliberately selected the logos and billboards that will inevitably be included in the scene. Considered purposively, the intent of the exception is to prevent copyright from having oppressive effects: where incidentally included work merely occupies the background and is not the subject of the film or scene, the exception will apply; where the included work functions as an essential and important feature of the film or scene, stepping out of the background to serve as subject, the exception has no application.
Limitations:
• The inclusion of copyrighted material (other than buildings and sculptures) must be both incidental, and not deliberate.
• Canadian documentary filmmakers should also be aware that the United States does not have comparable “incidental use” or “public space” provisions in its Copyright Act. Instead, filmmakers should rely on the fair use defence under US law. See the Documentary Filmmakers’ Statement of Best Practices in Fair Use for its discussion of this practice.
Two: Using copyrighted material when documenting a newsworthy occurrence (whether current or historical)
Description: Docume
ntaries frequently detail newsworthy events. Factually accurate documentaries often need to include copyrighted materials such as segments from an infamous speech, or scenes that appeared on news broadcasts during an historic or newsworthy event. Many documentaries tell important parts of Canadian history, and serve an important role in educating the public about current affairs and historical events. In order to accurately detail these newsworthy events, it is necessary that documentary filmmakers be able to make use of copyrighted materials that are essential to recounting them.
Principle: The use of copyrighted materials in this fashion should generally be considered fair dealing for purposes of news reporting where the filmmaker meets the additional requirement of mentioning the source and (if available) the author of the material. “News reporting” is a general category of fair dealing. What qualifies as “news” extends beyond what might appear on the 6:00 o’clock evening news: depiction of current affairs, public interest stories, and investigative journalism also qualify as “news reporting” for the purposes of fair dealing. Determination of the reach of this branch of the fair dealing exception is a question of judgment which must take into account the public interest. Fair dealings for the purposes of “news reporting” obviously include those cases in which the reproduced content is the subject of the reporting, but also include historical and other content relevant to the subject of the reporting. The content itself need not be the subject of the reporting, so long as the purpose of its reproduction is to aid in the presentation of the reporting.
Limitations: In addition to heeding the six factors of “fairness”, documentary filmmakers will be best positioned to assert a claim of fair dealing for purposes of news reporting where:
• The dealing reports news in a manner that has relevance for contemporary Canadians; dealings with content for the purpose of purely recounting history are better defended as fair dealings for the purposes of review or criticism (see Guideline Three, below).
• The copyrighted materials are (objectively) reproduced for purposes of news reporting, as opposed to gaining a competitive advantage over the copyright holder.
• The source of the work (and author, performer, maker or broadcaster if given in the source) is mentioned. Source citation is not a condition of fair use in the United States.
• The use of the material in the documentary is not such as to substitute for the market of the original copyrighted work.
Three: Using a copyrighted material for the purpose of critiquing or reviewing either the composition of the material, or the views expressed in the material
Description: Documentary filmmakers often make use of clips from a film, quotations from a literary work, etc. in order to engage in a critical analysis of either the composition of a given work (e.g., film clips that illustrate the shoddy editing of a movie) or the views expressed within that work (e.g., making use of segments of a copyrighted work in order to criticize its homophobic/misogynist overtones). Film makers may also reproduce content for the simple purposes of reviewing what was said or done in that content (e.g., reproducing an interview clip to establish that an individual stated a certain position).
Principle: The use of copyrighted content in this fashion qualifies as fair dealing for the purposes of criticism or review so long as the dealing is fair and the film maker mentions the source and author of the copyrighted work. The courts have interpreted “criticism” to involve critical assessment, analyzing and judging merit or quality. Criticism in this sense is equally available to one who criticizes the merit, form or structure of a work – in the sense of literary or film criticism – and to one who criticizes the ideas expressed in a work. “Review” similarly includes dealings that survey or portray past events or facts.
Recent case law suggests that parody, when it comments bitingly on its target, may amount to criticism that qualifies as fair dealing. A critique does not have to be serious or learned; critique may also be humorous or funny by virtue of amplification, deformation or exaggeration of a subject work. Copying a work with the intent of profiting from its popularity does not amount to criticism supporting a parody defense. Filmmakers should be aware that the “parody defence” has never been successfully applied in Canada. American law, in contrast, recognizes parody and satire as forms of criticism that may qualify as “fair use” of copyrighted material.
Limitations: To support the claim that a use of this kind is fair, a documentary filmmaker should adhere to the six “fairness factors,” and be able to show that:
• The criticism or review of a copyrighted work is (objectively) more than simply a condensed version of the copyrighted work.
• The source of the work (and author, performer, maker or broadcaster if given in the source) is mentioned. Note that this requirement is absent from US law.
• The criticism or review does not take the original work’s place in the market. The more that a work encroaches upon the market of a copyrighted work, the less likely it is to be deemed to be fair. This does not mean that a work can never fairly undermine the original work’s market; for example, a critical review of a movie might keep consumers from viewing that movie (the original work) but this does not make the dealing unfair.
• If a parody, the parody offers genuine commentary on or critique through humourous amplification, deformation or exaggeration of its target. The parody must be genuinely critical and not a parasite on the popularity of the target.
Four: Using a copyrighted work for the purpose of criticizing or reviewing different material
Description: A documentary filmmaker’s purpose in making a given film may be to criticize or review its subject matter. This subject matter may be another film or other copyright protected work, or it may be the actions or ideas of another individual or group. The filmmaker may pursue that purpose through the reproduction of content that is not the subject of the criticism or review. Typically, filmmakers do so for the purposes of contrast, clarification, illustration or explication. For example, in criticizing a particular special effect, a documentary filmmaker might make use of clips from several copyrighted works that contain superior effects. Similarly, a filmmaker may use clips from a film to criticizing a film distributor’s decision to stop exhibiting a film. In all of these cases, the filmmaker criticizes or reviews the film’s subject matter through contrast, clarification, illustration or explication of the actions, style, philosophy, or viewpoint of another subject.
Principle: Fair dealing for the purpose of criticism or review does not require that the dealing relate specifically to the copied work. A documentary filmmaker may therefore criticize a given work by quoting both from that work and from additional works, without infringing copyright in any of them. As a result, provided the filmmaker mentions the author and source, a filmmaker may rely on fair dealing to quote from other works for illustrative or comparative purposes in furtherance of criticism and review. Documentary filmmakers can similarly make use of a copyrighted work in furtherance of criticism or review of an individual’s or group’s philosophy, style, views or actions.
Limitations: In addition to adhering to the six “fairness” factors, a documentary filmmaker must ensure that:
• The criticism or review of a copyrighted work is (objectively) more than simply a condensed version of the copyrighted work.
• The source of the work (and author, performer, maker or broadcaster if given in the source) is mentioned. Note that this requirement is absent from US law.
• The criticism or review does not take the original work’s place in the market. The more that a work encroaches upon the market of a copyrighted work, the less likely it is to be deemed to be fair.
Conclusion & Additional Considerations
The four dealings outlined in these Guidelines do not exhaust the scope of situations that do not require copyright clearance. In addition to uses that qualify as fair dealings and incidental inclusions, other dealings with content do not require copyright clearance. These include the use of an insubstantial part of a copyrighted material, and the use of materials in the public domain.
Use of Copyrighted Material that Does Not Constitute a Substantial Part of the Material
Under the Canadian Copyright Act, a copyright owner has the exclusive right to reproduce any substantial part of his work. Therefore, if a documentary filmmaker’s use of a copyrighted material does not amount to a substantial part of the work from which it was taken, it will not infringe copyright, and there is no need to rely on the fair dealing or incidental use provisions in the Copyright Act. The term “substantial part” refers to both a quantitative and a qualitative element. That is, there is no strict percentage that needs to be shown to demonstrate the use of a “substantial part” of a work; even a quantitatively small portion of the work that represents an essential part of a work, or its core, may be considered to be a substantial part.
Materials in the Public Domain
A documentary filmmaker can also make use of materials for which the term of copyright has expired. The Copyright Act provides that the term for which copyright subsists, except as otherwise expressly provided for in the Act, is the life of the author, the remainder of the calendar year in which the author dies, and a period of 50 years following the end of that calendar year. For example, the term of copyright for an author who died on 1 January, 1989, will expire immediately after midnight on 31 December, 2039. Some works have terms other than the general. In Canada, photographs are subject to the general term unless the author was deemed at law to be a corporation, in which case the term of protection extends from the date of the making of the negative or initial photograph to end of that year, plus an additional 50 years. Films that lack a dramatic character (e.g., journalism, home movies, etc.) are protected for a straight fifty-year period running from when the film was made. If, however, the film was first published during this period, the copyright is prolonged to fifty years from the end of the calendar year of the first publication.
Filmmakers should be aware that copyright terms are not uniform worldwide. Europe and the United States both recently increased their standard terms of protection to 70 years past the author’s death. In each case, a filmmaker must abide by the laws in force in the country.
