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Documentary Web Guide

Copyright


Documentaries are films made to express factual information, and as such may be a great way to convey research results to a large audience and have an impact beyond academia.  However, as a form of knowledge mobilization that goes beyond standard journal/ monograph authoring, there are many additional considerations for academics to take into account when embarking on a documentary project. At the outset, you should think about how you will be using your own creative works, reusing others’ copyrighted content, as well as where and how your film will be distributed. We’ve assembled some best practices and considerations for you to think about before you begin.

*Please note that this guide does not constitute legal advice or endorse any usage of specific copyrighted content. Researchers are responsible for their own decisions. Please secure your own legal advice when in doubt.


Start Planning Early

  • Will you be using other people’s footage? Think about copyright clearances (how you will ensure you have the right to use other people’s footage and words) early, and save funding for it – DOC estimates that the average documentary spends 27% of their budget on clearances. Note that you don’t always need to pay in order to reuse other’s works.

  • Keep track of everything you find/ use. While it may seem tedious to keep a shot-by-shot listing with timestamps, this is good practice for you and for others to quickly and easily identify the sources of any materials you use. Just like in written work, accurate citations matter.

  • How will you distribute your film? Most traditional broadcasters will require Errors & Omissions Insurance, which may be costly. If you are planning on distributing via free platforms such as YouTube or Vimeo, or using your own hosting services, you still need to be careful if you are reusing other people’s content (including words, photographs, films, and music).
    • The DOC Guidelines are a good starting place for understanding some of the ways you can use content, and we have provided summaries below.
    • The User Generated Content exception in the Act allows for non-commercial reuse of other’s copyrighted works in certain circumstances. The use must be non-commercial, the source of material must be provided where reasonable, and the source material must come from a non-infringing copy, and the reuse must not have an adverse effect (financial or otherwise or compete with the market for the original.) This last clause may be difficult to interpret in academic contexts.
  • Are you considering markets other than Canada? Copyright law is different in the US and other markets, requiring additional clearances in some cases. Many of the Canadian exceptions will not apply, as the US has its own copyright laws.


Using Content

For a more comprehensive explanation of some of the best practices of creating/ reusing content in documentaries, the DOC Guidelines provide more detailed commentary. Note that since the Guidelines were produced the categories of satire, parody, and education have been added to the list of permissible Fair Dealing purposes in the Copyright Act.


Original Content

  • Did your shots capture some accidental or secondary materials in the background that are copyrighted or trademarked? The Copyright Act in Canada allows for the incidental and non-deliberate use of copyrighted materials in background images. Additionally, trademark protections are intended largely when trademarks are used in the course of selling goods or services relevant to the trademark, which will very rarely be the case with documentaries. Practically, this means that brands and other materials usually do not need to be blurred or edited out in documentaries produced in Canada. Similarly, incidental and non-deliberate inclusion of music in the background should not require clearances.

  • Are public buildings or sculptures included in your footage? There is an explicit exception in the Copyright Act allowing the filming of buildings and sculptures that are permanently situated in a public place. This use can go beyond incidental or background use.

  • Are you intentionally using copyrighted art in the background of an interview? This use may require clearances – it is likely easier to avoid the issue altogether unless necessary for artistic merit.


Reusing Content – Public Domain/ Creative Commons

Materials may be part of the public domain because their copyright has expired, or creators have chosen one of a variety of Creative Commons licenses to allow for their reuse.

  • Are materials in the public domain? Currently in Canada materials enter the public domain 50 years after the death of their creator, or 50 years after creation in the case of creation by a corporate entity. Note that the creator is the photographer, filmmaker, corporation, etc, and not the subject of the work, unless copyright has explicitly been signed over. Please note that sometime prior to the end of 2021 Canadian law will change in this regard, and change the period to 70 years after death/ creation, which may have serious ramifications for works that use materials that fall in between these periods. If you are working with archival sources we recommend discussing usage rights with the archivist responsible for the collection.

  • Are materials available under a Creative Commons license? Please note and document the specific license type, as each license has different use and reuse requirements. For example, materials that include a SA (Share Alike) CC license require that works that use them inherit the same license. Most CC materials require attribution.

  • Creative Commons Sources: Some quick starting points for sites with Creative Commons resources:

Reusing Content: Fair Dealing

The DOC Guidelines provide detailed guidance on how the ‘user’s right’ of fair dealing may permit the use of copyrighted content without undue clearance costs. It may be necessary/ beneficial to use copyrighted content to strengthen your argument or illustrate a critical point, but whenever possible you should avoid relying on other people’s work to tell the story for you.

  • Is the material being used for the purpose of research, private study, education, satire, parody, criticism, review or news reporting? Then you may be able to use some materials under fair dealing exceptions. Note that the exceptions for research and private study may only apply for personal use in the background research of a documentary, and the education purpose may only apply to in-classroom use.

    • Criticism can apply to critical commentary and challenging view points. Review can include review of artistic merit, factual review, and disclosure of facts and events. News reporting extends beyond just current events.

  • In addition to the purpose, additional considerations for the fairness of a dealing may include:

    • the character of the dealing, including the customs in a particular industry,
    • the amount of the dealing,
    • alternatives to the dealing,
    • the nature of the work (it is more likely to be fair if previously published),
    • and the effect of the dealing of the work on the original.

  • Effect of the dealing on the work on the original– whether a work competes with the market for the original – has been stated by some courts to be ‘neither the only factor nor the most important factor’, but is still worth serious consideration. Including original voiceovers and critical content, limiting the amount of the work used to only that which is necessary, and using works always for critical or review purposes (rather than purely visual examples) will help the dealing tend towards fairness. For more detailed consideration of these factors, please refer to the DOC Guidelines.

    • The use of news clips help describe an event, as long as used for the purposes above, are typically considered fair dealing and do not generally require copyright clearances.
    • All fair dealing uses require the source of the work (author, performer, maker, broadcaster, etc) to be mentioned.


Reusing Content: Copyright Clearances

If you cannot find suitable public domain or creative commons materials, and your use falls outside of fair dealing or another exception, you may need to purchase copyright clearances. You may wish to discuss your options with the Copyright Office prior to pursuing this route.

  • Most major publishers/ broadcasters/ distributors provide links to request (and pay for) permissions on their sites.

  • Many rights can also be secured through the Copyright Clearance Center (US based)

  • Some rightsholders may only give you limited duration licenses for commercial or ethical reasons. Be mindful of these limitations and be prepared to renew the rights when they expire if you wish to continue distribution.

  • If you require a license for an orphan work (a work that you have tried all reasonable ways to identify the copyright status of a work and have failed), you may need to apply for a license through the Copyright Board. This can be a lengthy process.


Music

Music may be covered by incidental inclusion or if being used explicitly for the purposes of parody, satire, or criticism and review of a musical work, but atmospheric music or the score will not fall under these exceptions.

  • If you are using other peoples’ music, be aware that there are multiple rights that may need to be covered, including a “Synchronization Right”. You will need to contacts the rightsholder (usually the record label) directly.

  • If you are commissioning the score, have an explicit contract with the creator (even if no money is changing hands) setting out usage rights.


Distribution Considerations

The way you are choosing to distribute your film has implications for additional costs. DOC has a number of useful resources on distribution, including Roadmap for Creative Distribution and Charting a Course for Impact Producing in Canada.

  • Will your distributor/ broadcaster require you to hold Errors & Omissions (E&O) insurance? Unfortunately if so, as a condition of this insurance the insurer may require you to pay for clearances even in situations where fair dealing would seem to apply. E&O insurance can be costly. It can be sought in the early stages of production, or at the end of production for the purposes of broadcasting. Investigating this early can be beneficial in order to avoid situations where you may need to omit important footage or pay an expensive clearance fee.

  • Are you choosing to self-publish (via YouTube, Vimeo, your own website?) Remember that this does not preclude having to ensure you meet all of your copyright obligations. Even if you reuse content in one of the ways excepted under the Copyright Act, many sites such as YouTube use algorithms to suspend or remove content that they think may be infringing.


Funding

Tri-Agency Funding

Producing a documentary may be one way of fulfilling your knowledge mobilization requirements of a Tri-Agency Grant.  Keep in mind only certain expenses may be eligible under the conditions of your grant. The following examples are from the SSHRC Grant Holders Guide.

Examples of Eligible Expenses

  • Consultants: Grant recipients are expected to have the full qualifications and experience necessary to carry out research programs/projects for which they are funded, or to obtain the help of fellow scholars as part of reciprocal scholarly collaboration. Consulting fees may be charged against the grant only if the application proposal demonstrates that expert advice is needed to resolve highly technical problems.
  • Circulation of findings through traditional media, as well as on video, CD-ROM, etc.
  • Preparing a manuscript for publication (e.g., layout and preparation and/or purchase of illustrations, figures, maps, drawings, and photographs).
  • Other non-disposable equipment: You may purchase or rent equipment, such as microfilm readers, tape recorders, cameras, video equipment, field vehicles, laboratory accessories and equipment, if you do not have access to such items through the institution. Please note that equipment purchased with Tri-Agency funds becomes property of the University at the completion of your grant.

Examples of Ineligible Expenses

  • Contingency allowances.
  • Indirect costs (e.g., medical insurance) or administrative overhead.
  • Professional training or development, including computer and language training

Documentary Funding

DOC provides information on avenues for documentary film funding in their reports Roadmap to Creative Distribution, Charting a Course for Impact Producing in Canada, and Growing the Pie.  Manitoba Film and Music offers a number of programs (https://mbfilmmusic.ca/en/film/programs) and Winnipeg Film Group is another good source for resources.