fair use and documentary film makers

Delia Browne National Copyright Director

National Copyright Unit

www.smartcopying.edu.au

Fair Use and Documentary Filmmakers

ALRC Final Report: Statutory Licences

In its final report on Copyright and the Digital Economy, the Australian Law Reform Commission (ALRC) has made some recommendations to retain, but simplify and make less prescriptive, the statutory licensing scheme.

Whilst the ALRC has moved back from its earlier recommendation on repealing the statutory licensing scheme, it flags that if the fair use and new exceptions for government use are not introduced, there would be reason to revisit repealing the statutory licensing scheme.

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ALRC Final Report: Statutory Licences

The ARLC also recommends a number of reforms to address specific criticisms of the statutory licensing scheme, including:• clarification that the statutory licences do not apply where use of material falls within

an exception to copyright - this will be particularly important if the ALRC’s recommendations to introduce a fair use exception or expand the existing fair dealing exceptions are accepted

• clarification that statutory licences do not apply where an alternative licence is negotiated – a clarification that is recommended as a check on the market power of collecting societies

• removal of requirement that governments must notify or pay equitable remuneration to a declared collecting society, so that governments have the option to deal directly with rights holders

• making statutory licences less prescriptive and more flexible - detailed provisions concerning the setting of equitable remuneration, remuneration notices, records notices, record keeping, sampling notices and survey requirements should be removed and terms should be agreed between the relevant parties, or by the Copyright Tribunal

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ALRC Final Report: Fair Use

In its final report on Copyright and the Digital Economy, a key recommendation of the ALRC is the introduction of a fair use exception to copyright infringement.

It seeks to achieve a balance between the interest of rights holders and content users and between flexibility and certainty. The Federal Attorney-General, George Brandis, has described this as a ‘controversial’ recommendation

A fair use exception would mean that all unauthorised uses of copyright material (as opposed to certain prescribed uses) may be an exception to copyright infringement if the use is fair.

The ALRC considers the exception to be sufficiently certain and predictable while allowing flexibility to apply to all uses and new technologies. To deal with this concern, the ALRC recommends that guidance be given on how to interpret and apply the exception.

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ALRC Final Report: Fair Use

The factors relied upon by the ALRC to support the case for a fair use exception include that it:

• is technology-neutral and will assist in increasing investment and innovation in Australia.

• is a flexible standard, yet is certain and clear enough to be predictable.

• has been codified for many years in the US and other foreign jurisdictions.

• promotes public interest and transformative uses (ie a use different to the one for which the material was originally created). The example given is the recent US Google Books case2 which the ALRC says ‘demonstrates the potential of fair use to advance education and learning and to benefit authors and content owners’.

• better aligns with reasonable consumer expectation (although the ALRC is clear to state that it is not an argument for legalising piracy).

• protects rights holders’ markets in that if a licence could be obtained, the use may not be fair.

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ALRC Final Report: Fair UsePrimary recommendation – fair use exception

(a) Fairness factorsthe purpose and character of use. This includes consideration of whether the use was transformative, for the public interest or for a commercial purpose.nature of the copyright material. This includes a consideration of whether material has been published, is in print and/or contains factual or entertainment content.amount and substantiality of the part used.effect of the use upon the potential market or value. This factor is said to help to ensure that the markets of the rights holders are not substantially damaged by the exception.

(b) List of non-exhaustive illustrative uses or purposesresearch or study,criticism or review,parody or satire,reporting news;professional advice,quotation,non-commercial private use,incidental or technical use,library or archive use,education,access for people with disability.

(c) Other factors to consider when determining whether a use is ‘fair’existing Australian case law on the current fair dealing exceptions.other jurisdictions and their application of the fair use exception. The ALRC suggests that the Explanatory Memorandum should contain an express statement that the Australian Courts may be guided (but not bound) by US and other foreign law on this issue.development of industry codes of practice and guidelines.

Secondary proposal – new fair dealing exceptions

If the fair use exception is not introduced, the ALRC recommends a new fair dealing exception. The eleven illustrative purposes would be the new prescribed fair dealing exceptions under this back-up proposal. The same four fairness factors would apply.

The difference between this proposal and fair use is that fair dealing is a prescriptive about the uses which could be considered to be an exception to copyright infringement (ie two questions arise – does the use fall within one of these prescribed purposes? If so, is the use fair?) whereas fair use is a standard (ie only a single question arises – is the use fair?). Fair use is more flexible.

The ALRC makes it clear that fair dealing is a secondary recommendation. The ALRC recommends that if this back-up fair dealing exception is enacted as opposed to fair use, the scope of the purposes should not be given a narrow construction and should be interpreted liberally.

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Documentary Filmmakers’ Statement of Best Practices in Fair Use

Overview

In one of the most explicit examples of the certainty that can be offered by fair use paired with effective industry guidelines, the Documentary Filmmakers' Statement of Best Practices in Fair Use, developed by documentary filmmakers with the assistance of Professor Pat Aufderheide and Professor Peter Jaszi, provided sufficient clarity that, after its release, insurers began to provide ‘errors and omissions’ insurance against fair use claims after many years of refusing to do so on the basis that the law was too uncertain.The Statement clarifies when it is safe for a filmmaker to assert fair use, which is the unauthorized use of copyrighted material under certain circumstances. The clarification makes it possible for filmmakers to dramatically lower clearance costs while also honouring copyright ownership.

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Background and additional information

In 2005, a coalition of lawyers, law school, and film industry advocates came together to help outline many of these principles. The effort served both to clarify the practices commonly used by professional documentary filmmakers and to help advocate that those practices meet the legal guidelines for fair use.The Statement outlines appropriate and inappropriate applications of fair use by documentary filmmakers. Perhaps the most significant impact of the Statement has been its acceptance within the insurance industry. The four companies most used by U.S. documentary filmmakers all announced programs to cover fair use claims less than 2 years after the Statement was released.

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Background and additional information Coauthors of the statement have written about its impact: “The theory behind the Statement is that courts respect the views of responsible professionals about what kinds of uses are fair in their area of practice.” As a result of the industry acceptance, insurance companies are demonstrating stronger support for including fair use content in documentaries. The result of the widespread support of the statement and adoption of its standards within the insurance industry is a normative change for acceptable practice that provides documentary filmmakers concrete guidance regarding the scope of risk associated with fair use claims.

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Background and additional information

In Reclaiming Fair Use: How to Put the Balance Back in Copyright, Aufderheide and Jaszi note that within a short time of this Statement of Best Practice being adopted by documentary filmmakers, “every single insurer of errors and omissions in the US began to offer fair use coverage routinely, and often without even a small incremental fee, because the statement had lowered the risk so dramatically.” As a result of this statement being put into practice by this group of users, “fair use was no longer a grey area, an area of indecision and anxiety, an area that put your distribution in jeopardy. It was a part of normal business practice.”Most important, from a filmmaker's perspective, it is gradually becoming normal for gatekeepers to accept filmmakers' fair use claims, when backed by the principles and limitations articulated in the Statement

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The MPAA on fair use

The Motion Picture Association of America (MPAA) has stated in an amicus brief: fair use “is designed to ensure . . . that copyright does not itself encroach on free express.”

It therefore protects a filmmaker’s right to use copyrighted material for historical and biographical purposes, as copyrighted images often appear as the subject matter of documentaries or can be seen incidentally in the background.

In this sense, fair use protects the legal right to accurately portray, display, and share history. The brief champions the “long line of fair use decisions” that protect a filmmaker’s right to “depict the real world or create historical narratives” using copyrighted material “without permission from copyright holders.”

The absence of these provisions would have “a profound chilling effect on the speech of anybody who wants to create documentaries or any other work of non-fiction,” as well as quell “crucial cultural commentary.”

Some have expressed surprise at the MPAA's brief and position, relying on a caricature of the organization as being against fair use and free speech. But as an organization representing creators who engage in fair use and free speech every day, the MPAA’s brief is a reflection of how critically important these concepts are and its willingness to defend them.

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4 most common egs of when filmmakers may want to rely on fair use

1. Employing copyrighted material as the object of social, political or cultural critique

2. Quoting copyrighted works of popular culture to illustrate an argument of point

3. Capturing copyrighted media content in the process of filming something else

4. Using copyrighted material in a historical sequence

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Egs of what fair use allows documentary film makers to do in the US

Employing copyrighted material as the object of social, political or cultural critique• Affluenza: excerpted TV ads in a critique of consumerism.

• Invoked fair use because engaged in media criticism

• Casting Calls: excerpted relevant moments from popular films to demonstrate the argument that Hollywood represents Islam as a "faith of violence."

• Invoked fair use because quoting material in a different context and for a different purpose from that for which it was created, and as media criticism.

• Beyond Beats and Rhymes: quoted from rapper Nelly's "Tip Drill".

• Employed fair use because the quoted material illustrated his argument about sexism in rap today.

• Money for Nothing: argued that popular music stars were being chosen for their ability to cross-promote their work.

• Claimed fair use for advertisements, album covers and television programming because he was making a critique of the media products themselves, as examples of a cultural trend.

• Women's Voices: The Gender Gap: made to encourage women to vote, stereotyping of women in media was critiqued through animation techniques.

• Claimed fair use of the TV news clip because the film was commenting critically on the specific piece of media quoted.

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Egs of what fair use allows documentary film makers to do

Quoting copyrighted works of popular culture to illustrate an argument of point• Game Over, a documentary about the social effects of video games, Nina

Huntemann quoted several video games to make the point that they have become even more realistic. The Media Education Foundation employed fair use, because these quotes provide a context for the filmmaker's critical analysis of this kind of media.

• In the Frontline documentary "Merchants of Cool," director Barak Goodman quoted a teen horror movie, I Still Know What You Did Last Summer, in a report on the marketing of popular culture to teens.

• He invoked fair use because this horror film is used as a point of reference for a discussion on the effect of media, sex and violence on teens.

• Refrigerator Mothers: about an era when mothers were blamed for their children's autism, J.J. Hanley and David Simpson quoted popular films of the era. They claimed fair use because the film clips, by demonstrating social attitudes of the time, reflected popular culture of the era.

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Capturing copyrighted media content in the process of filming something else• 5 Girls: Maria Finitzo filmed a teen party where Lauryn Hill song

played in the background.

• She employed fair use because the girls chose for themselves to use that music, and their choices were part of the reality of their daily lives.

• Frontline documentary "The Persuaders," directors Barak Goodman and Rachel Dretzin filmed an advertising team presenting a demo of a commercial featuring the tune "Downtown," by Petula Clark.

• They invoked fair use for the song because they had not chosen it as a soundtrack element; rather the song was integral to the scene that they were capturing for other purposes.

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Using copyrighted material in a historical sequence• In the American Experience documentary "Citizen King," Orlando

Bagwell used a central portion of Martin Luther King, Jr.'s "I Have a Dream" speech, in which the King estate claims copyright. He claimed fair use because the section was historically crucial and the King estate had refused to license the material to the American Experience producer, public TV station WGBH.

• In Giuliani Time, Williams Cole quoted contemporary newspapers, magazines and news broadcasts, illustrating Rudy Giuliani's skill at commanding press attention. Cole employed fair use because he made limited use of archival materials to illustrate a specific historical observation.

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Fair use is not too uncertain – US Fair use is not uncertain – insurance companies in the US offer policies based on

compliance with fair use guidelines Scholars have demonstrated that fair use law is in fact more patterned, more predicable,

and hence more reliable than the critics have claimed. Recently, New York University Professor Barton Beebe and Loyola University of Chicago Professor Matthew Sag, employed rigorous empirical methodologies to arrive at this conclusion.

Two other comprehensive studies of the fair use doctrine in the United States, which emphasize its internal consistency and predictability, also deserve special mention – one by University of Pittsburgh Professor Michael Madison and another by University Of California, Berkeley, Professor Pamela Samuelson. Samuelson, one of the most respected figures in United States Copyright law, surveyed the entire landscape of fair use case law and grouped the decisions into ‘policy relevant clusters’. She concluded that “once one recognizes that fair use cases tend to fall into common patterns”, the “fair use is both more coherent and more predictable than many commentators have perceived”.

Developing guidelines/best practices to guide constituents in exercising their fair use rights responsibly and constructively will also contribute to the predictability of fair use

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Fair use is not too uncertain – Australia

Fair use may actually be more certain than Australia’s current laws. For some current exceptions, courts have had to focus on technical details

such as who technically made the copy, instead of on whether making the copy was fair.

For the fair dealing exceptions, Australian courts currently have to ask two questions: (1) was the use for one of the purposes set out in the Act?; and (2) was the use fair?

It has proved to be quite difficult in practice to predict how courts will answer this first question, and this has created a fair amount of uncertainty.

Under fair use, a court simply has to ask ‘was the use fair?’, taking into account the fairness factors that are set out in the Act. A fair use assessment based on the clear fairness criteria proposed by the ALRC may in fact be much more predictable than the current law.

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Fair use is not too uncertain – Australia

It is, of course, in the nature of any open-ended exception that there will be some degree of uncertainty as to the circumstances in which it will apply, at least until industry or sectoral guidelines or a body of case law provides some guidance as to the kinds of uses that the exception permits. But the guidelines from the US will aid in this transition and the benefits of flexibility as well as simplicity outweigh any uncertainty created by an open-ended exception.

In the Schools’ experience, the existing Copyright Act arrangements are highly uncertain. The recent Optus TV Now litigation is an excellent example of the uncertainty that can arise

from a stand-alone purpose based exception. In an educational context, almost 7 years after the 2006 amendments, the Schools and

Copyright Agency are still disagreeing over the interpretation of s.28. It took a Copyright Tribunal case and legislative reform to clarify whether the Part VB licence applied to a student reading from the internet. Other aspects of the Part VB licence remain unclear even 12 years after the Digital Agenda reforms, such as the meaning of ‘separately published’ in the digital environment. Indeed, it can even be unclear what should be considered a ‘work’ in an internet age. For example, the Schools and Copyright Agency spent long periods debating whether use of an interactive website where primary school students moved a snail into the correct location for a full stop in a sentence should be remunerable under Part VB.

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Fair use would work well in Australia

Michael Geist: fair use has ‘always been an integral part of copyright law in the common-law world, and it is the notion of an exhaustive list of statutory exceptions that is foreign’.

Peter Jaszi: “…fair use is, to a great extent, the ‘secret sauce’ of U.S. cultural competitiveness.”

Australia’s fair dealing provisions and the United States fair use provision share a common legal history.

Flexible copyright provisions similar to those proposed by the ALRC also work well in countries such as Canada, Israel, Singapore, South Korea and India.

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Fair use would work well in Australia

Australia has been thinking about introducing fair use for a long time. A flexible copyright exception very similar to the ALRC’s proposal was first recommended for introduction in Australia in 1998. The introduction of fair use was recommended by Parliamentary Committees in 2004. The House of Representatives Inquiry into IT Pricing recently recommended the consideration of fair use for consumers, businesses and educational institutions.

Fair use would not be a “free for all”; it would apply only to those uses that did not unreasonable prejudice the interest of the author.

It is surprising to see the reaction of copyright owners in Australia to the idea of fair use. This is in stark contrast to the United States, where the US Department of Commerce recently described fair use as “a fundamental linchpin of the U.S. copyright system”.

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