“Fair” Dealings Potentially “Unfair” for Documentary Filmmakers

“Fair” Dealings Potentially “Unfair” for Documentary Filmmakers

Danny Titolo is a JD candidate at Osgoode Hall Law School and currently enrolled in the course Law & Social Change: Law & Music, in Winter 2011. As part of the course requirements, students are asked to write a blog on a topic of their choice.

On February 17, 2011, the Documentary Organization of Canada (DOC) recently raised freedom of speech and freedom of creative expression concerns before the Legislative Committee on Bill C-32. The DOC’s concerns revolve around the Technological Protection Measures (TPM) or “Digital Lock” provisions proposed in Bill C-32. The DOC acknowledges the importance of TPMs as a way of protecting one’s expression from infringement; however, the concern is that the current provisions in Bill C-32 do not provide documentary filmmakers with the adequate exceptions for fair dealing to adequately perform their trade.

The DOC is a not-for profit organization that represents more than 800 directors, producers and writers across Canada. They are the collective voice of documentary filmmakers and advocate for an environment that is supportive to documentary production.

The DOC argue that the use of musical scores and visual materials are an essential part of a documentary filmmaker’s production. Further, they argue that to deny them access to these materials because the original creator chooses to implement a digital lock will prevent filmmakers from producing their works.

The issues raised by the DOC pertaining to copyright are not a new phenomenon. Filmmakers and media producers spend a considerable amount of their budgets to obtain the rights from creators to use material in their productions. As a result, last year the DOC released guidelines for filmmakers to educate them on fair dealing. The guide informs documentary filmmakers about how they can utilize fair dealing and incorporate music and other works into their films without having to obtain permission or the necessary licences. According to the Copyright Act, in order to qualify for the fair dealing defense, the dealing must be for a permissible purpose, be fair, and the original source of the content must be cited.

Not all work qualifies for the defense of fair dealing. A work must fall within one of five categories. It must be a private study, used for research purposes, a critique, a review of some sort, or a news summary. By their nature, documentary films often fall within one or more of these categories. The issue then is not with being able to qualify for a fair dealing defense, but rather the lack of protection it provides as a result of Bill C-32. Bill C-32 permits the exclusion of fair dealing if an original creator decides to implement a digital lock on their original work. Furthermore, Bill C-32 makes digital lock circumvention illegal. As a result, an original work cannot be used in a film if it contains a digital lock irrespective of a fair dealing defense.

As Lisa Fitzgibbons of the DOC stated before the Legislative Committee on Bill C-32, “Criminalizing the tools, or the creation and sale of tools, to exercise fair dealing is an inherent contradiction in copyright law.” The DOC and other industries, such as the education sector, are foreseeing potential issues and feel that Bill C-32 should be drafted correctly at the onset.

Filmmakers have suggested that Bill C-32 be amended to include anti-circumvention exceptions for fair dealing. The hesitation in adding such exceptions is the fear of opening floodgates to illegal circumvention. Conservative MP Ed Fast feels that allowing circumvention for legal purposes will automatically lead to circumvention for illegal purposes. Fast’s reasoning has earned him a considerable amount of criticism from prominent bloggers primarily because Bill C-32 currently contains circumvention exceptions for several purposes and the counter-argument is that the fear of a floodgates effect occurring by adding one more to the list seems unreasonable. If Bill C-32 is not amended, documentary filmmakers fear that the digital lock will trump all other rights in Canadian copyright law.

It is clear that piracy seriously affects both the music and motion picture industries. An Ipsos/Oxford Economics report revealed that more than $1.8 billion and 12,600 full-time jobs were lost across Canada in 2009-10 due to movie piracy. In the same vain, a study conducted by the Institute for Policy Innovation revealed that the music industry loses nearly $13 billion annually from global music piracy. Critics of TPM provisions acknowledge these piracy concerns and are not suggesting that the digital locks be removed in their entirety. Most support the use of these locks to protect expression; however, supporters of the TPM provisions must also consider the constraints Bill C-32 is creating.