Documentary Web Guide

• 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 and 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.  

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 its 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 the Canadian Federal Government's Budget 2022 promises to extend the term of copyright from the international standard of the life of the author plus 50 years to life plus 70 years.  This 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: Listed below are some quick starting points for sites with Creative Commons resources.  Please note you will still need to check what kinds of reuse the license permits.
  • Archive.org Videos/Movies
  • Archive.org Stock Footage
  • Creative Commons Images
  • Creative Commons Music (www.ccmixter.org)
  • Vimeo Creative Commons Licensed Works

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 viewpoints.  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, 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 voice-overs 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.) be mentioned.

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 websites.
• Many rights can also be secured through the US-based Copyright Clearance Center.
• Some rights-holders 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 without success), you may need to apply for a license through the Copyright Board.  This can be a lengthy process.