Further to earlier mention of the release by the Documentary Organization of Canada (DOC) of its Guidelines to Fair Dealing Practices for Documentary Filmmakers, Vincent Doré has written a brief comment on the Guidelines at IP Osgoode’s IPilogue:
The Copyright Act thus adequately considers user rights and the public interest by allowing documentary filmmakers in Canada to bring to viewers a true depiction of reality without prohibitive and unnecessary copyright clearance costs. For instance, the Guidelines state that the use of copyrighted material “for the purpose of critiquing or reviewing the composition of the material, or the views expressed in the material,” does not require copyright clearance if the use meets the requirements of “fair dealing,” and the source and author of the material are mentioned (it is noteworthy that U.S. law does not require the mentioning of source and author). Therefore, the use of copyrighted material may not require clearance, even if it undermines the market of the original work. However, the creator of the original work can be comforted by the fact that a documentary that is a substitute for or competes with the market for the original work without copyright clearance is less likely to be held to be “fair”.
As alluded to in the earlier post here at the Signal, the DOC Guidelines themselves require some close interrogation as they tend to (understandably, given the DOC’s mandate for its members) adopt the most producer-favourable interpretation of various provisions in the Copyright Act and court decisions – hopefully Doré’s post will be the start of a wide-ranging discussion about the Guidelines and their efficacy.