The Documentary Organization of Canada (DOC) has announced the release of its Guidelines to Fair Dealing Practices for Documentary Filmmakers. Documentaries, by their very nature (ie because they seek to depict and reproduce the world as it actually is, and generally are not filmed on controlled and artificial sets), face greater “clearance” challenges when it comes to obtaining errors and omissions insurance – permission must be obtained for, among other things, the on-screen reproduction of any copyright or trade-marked materials, such as songs, posters or film clips. The DOC Guidelines aim to provide guidance on when “fair dealing” may be relied upon to avoid having to obtain clearances.
The issue of the extent to which Canada’s “fair dealing” mechanism can be used to ease the clearance process is a contentious one, with producers (and their counsel) squaring off against E&O providers (and their counsel) – and is ultimately a subset of the larger debate regarding the efficacy of “fair dealing” itself. As DOC notes in their press release, the Guidelines are intended as a stop-gap measure on the way to DOC’s goal of achieving a more wide-ranging reform of fair dealing.
Of particular interest is the role to be played by efforts to create industry-standard guidelines. Cogent arguments have been advanced, including those by Giuseppina D’Agostino, that reforming the law of fair dealing will not prove as constructive as creating “fair dealing best practices” (see D’Agostino, “Healing Fair Dealing? A Comparative Copyright Analysis of Canadian Fair Dealing to UK Fair Dealing and US Fair Use”, 53 McGill Law Review 309, available for download from SSRN). In other words, perhaps the most productive way forward is by developing, informed by the positions and (competing) preferences of all stakeholders in the relevant industry sector, precisely the sort of guidelines and standards which the DOC Guidelines are a first step in creating. (The Center for Social Media at American University has promulgated a Documentary Filmmakers’ Statement of Best Practices in Fair Use which is an effort similar in ambition to that of DOC.) Though such guidelines do not have the force of law, there is the hope that, to quote D’Agostino, courts will see fit to treat them “as ‘soft law’ when interpreting fair dealing cases”.
The DOC Guidelines will almost certainly not be the final word on the matter – they do not appear to have been endorsed by E&O providers, for example. There will be elements of the Guidelines which prove contentious (as an example, as I touched on in this short piece at IP Osgoode on the “incidental inclusion” exception in Canadian copyright law, the DOC Guidelines adopt the most aggressive, and producer-favourable, interpretation of the “incidental inclusion” exception). But the DOC Guidelines will hopefully serve as a welcome first step in the ongoing process of clarifying and simplifying how Canada’s copyright laws can, and should, interface with day-to-day film and television production activities.