|Documenting the copyright sphere: can festivals solve the problem of copyright clearance for documentaries?
|Ekiz, O. (2019) Documenting the copyright sphere: can festivals solve the problem of copyright clearance for documentaries? Queen Mary Journal of Intellectual Property 9 (4)
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|About the Data
|The authors of the study document their experience of producing the documentary
Her Story, and the questions of copyright clearance that arose from this. In particular, the study considers how the freedom of panorama exception may be utilised to limit the clearance costs by analysing their use of two publicly displayed sculptures.
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“The starting point of this article is a short documentary film that I and five colleagues produced in the course of the Business of Film module at Queen Mary University of London's Intellectual Property Law LLM Programme. During the process of production, we faced some borderline issues regarding our unauthorized uses of others’ copyright works. When we put ourselves into the copyright's author's shoes, three problems arose regarding our use of possible limitations and exceptions: the lack of guidance; the fear of liability; and the unharmonized status of limitations and exceptions at an international level. This article examines these problems from a copyright policy perspective and invites documentary festivals to undertake a mission of guiding new documentary directors through the complex, unharmonized world of copyright limitations and exceptions.”
Main Results of the Study
• The inaccessibility of copyrighted materials may limit documentary makers’ creativity by forcing them to overlook copyrighted materials in order to reduce budgetary costs.
• The study suggests that the legislative history of the freedom of panorama exception in the UK suggests that publicly displayed works are belongings of the nation, constantly in the presence of others and subject to ongoing interaction. As such, this would justify restricting any unreasonable limitations arising from copyright protection, including the filming of publicly displays sculptures.
• However in an international context (in comparison with France and Germany) whether the same exception would apply for sculptures is unclear: France has conditions of non-commerciality and limitations to publicly displayed works on public roads only; Germany’s uncertainty on what constitutes a “permanent” work also leads to considerable uncertainty. Both may give rise to the need to licence the use of the work, rather than benefitting from the exception, increasing costs for documentary filmmakers.
Policy Implications as Stated By Author
To reduce the burden of copyright clearance for documentary makers, the study suggests that film festivals may play a role in facilitating the use of copyright exceptions and limitations e.g. by encouraging submissions which utilise these, providing legal guidance (specific to the jurisdiction of the festival) and including copyright experts/a consultancy service.
Coverage of Study