When Filming Abroad, Consider the Laws Part 3: If Unlicensed Borrowings in a Documentary (of Clips and Headlines, for Example) Qualify in the U.S. as Fair Use, are Those Borrowings Still Legal When the Documentary is Distributed Outside the U.S.?

POSTED ON July 30, 2019 / IN Documentary Toolkit

BY:

STEVEN C. BEER, JAKE LEVY AND NEIL J. ROSINI

This Q&A was originally published in the Spring 2019 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.

If borrowed material is commented upon or criticized in a documentary and qualifies as a fair use in the U.S., then it likely passes muster throughout most of the world as either fair use or fair dealing.  Here’s why:

Copyright law is territorial, which means that each country creates the rules for protection of works exploited in its own territory.  No country can dictate the rules for other countries, but some countries — with the European Union being the most prominent example — agree on guidelines that apply to the rules in each of them.

Dozens of countries have some form of exception to the general rule that the owner of copyright holds a monopoly of control over exploitation.  But only a handful of countries offer exceptions that can be described as fair use.  The United States is one of them.  Section 107 of the U.S. Copyright Act lays out the rules of fair use, beginning with certain types of uses that are particularly favored, including “criticism, comment [and] news reporting,” which is good news for documentary makers.

But inclusion on that short list of favored uses is not enough to earn fair use treatment; each borrowing must be weighed on a four-factor scale that determines whether or not the use is transformative (a good thing), commercial (a bad thing), substantial (both quantitatively and qualitatively — the less, the better), and/or does damage to the value of the borrowed work.  It also asks about the nature of the borrowed work, with fact-based works (like non-fiction) being more amenable to fair use than works of the imagination (like novels).  The statute only occupies a few inches of print on the page. Its application is supposed to be flexible in the hands of judges and consistent with the general purpose of copyright law, which is to benefit society.

Fair dealing, on the other hand, presents a more rigid measuring stick.  In order to qualify as an exception to copyright protection, an unlicensed borrowing has to appear on a prescribed list of uses.  Each member country of the European Union, for example, is bound by an exhaustive list of potential “exceptions or limitations” to reproduction and public communications rights.  The list does include, however, certain “reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics or of broadcast works or other subject-matter of the same character” and “use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose.”  Unlicensed use of quotations is also permitted “for purposes such as criticism or review… in accordance with fair practice, and to the extent required by the specific purpose.”  Some additional qualifiers also apply; for example, the name of the author whose work is borrowed usually must be identified.

Some variation exists from country to country, even in the EU.  The United Kingdom (which is still a member of the EU as of this writing) includes criticism, review or quotation, and the reporting of current events as bases for fair dealing while also taking account of the amount used (was it reasonable and necessary?) and the economic effect of the work on the market for the original.  Canada also has a fair dealing provision that embraces criticism, review and news reporting while taking into account factors like those in the U.S., such as the purpose, character and amount of the borrowing, alternatives to the borrowing, and the effect of the borrowing on the work.

Fortunately, distributors usually accept worldwide exploitation if unlicensed borrowings comport with U.S. fair use law, which simplifies the matter considerably.  One probable explanation is the similarities among countries in their exceptions to copyright protection for news-related uses.  Another may be that countries outside the U.S. tend not to punish infringements with financial penalties as high as those here.

–Neil Rosini

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