2.2.1 IPR Principles Times

8/10/2019 2.2.1 IPR Principles Times

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Handbook of Ethnographic Documentary, Part 2 Rights.

Section 2 INTELLECTUAL PROPERTY RIGHTS

Chapter 1

PRINCIPLES

[This is a draft circulated to colleagues and friends for comment. Please do not cite

without permission. Paul Henley 2005]

Intellectual property rights, generally now referred to by the acronym IPR, are a verycontemporary preoccupation. New technology allows them to be tracked, bought andsold with much greater ease than in the past and - not coincidentally perhaps - amongst

lawyers, there is currently a very active debate as to how these rights should be definedand operationalized. For documentarists, on the other hand, they represent yet another

developing restraint on their activities. Also, as with the restraints considered in theprevious chapter, they represent something of a potential hazard too, for as those notices

at the end of a feature film always warn, a breach of IPR can result not merely in a civilaction initiated by an aggrieved rights owner, but even in a criminal prosecution. The

latter is only likely if the breach of IPR has been particularly flagrant and involves illicitcommercial exploitation of the claimants right. Even so, these potential penalties should

serve to concentrate the mind of documentarists on the necessity of understanding howIPR could potentially impact on their work.

IPR issues are, however, famously complex. The most important vehicle of IPR law in

the UK is the Copyright Designs and Patents Act (CDPA) which was passed byParliament in 1988 and came into force on 1 August 1989.

1 The original Act was

considered complex enough by legal experts but it has been further complexified by aseries of amendments arising both from related Acts of Parliament and various statutory

instruments clarifying ambiguities in the original Act or responding to EU directives.2

Although it is a general principle of the CDPA that its provisions should apply to works

1

The full text of the Act is available via the HMSO website at www.hmso.gov.uk/acts/acts1988.2 The most important of these amendments for present purposes are the following three statutory

instruments: The Duration of Copyright and Rights in Performances Regulations 1995 , Statutory

Instrument No. 3297 which came into force on 1 January 1996 (see

www.legislation.hmso.gov.uk/si/si1995); The Copyright and Related Rights Regulations 1996, Statutory

Instrument No. 2967, which came into force on 1 December 1996 (see

www.legislation.hmso.gov.uk/si/si1996 ) and The Copyright and Related Rights Regulations 2003 ,

Statutory Instrument No.2498, which came into force on 31 October 2003 (see

www.legislation.hmso.gov.uk/si/si2003). For a full list of amendments see the UK government Patent

Office website at www.patent.gov.uk/copy/legislation/copylaw.htm.


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Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles2

still in copyright at the time that it came into force, this is qualified in various specific

ways in the detail of the Act. As a result, the provisions of the earlier 1956 Copyright

Act and even the 1911 Act continue to have some relevance.3

The issue becomes even more complex when an international dimension is introduced.The general principle of IPR is recognised in legal jurisdictions around the world and

due to reciprocal arrangements between the countries that are signatories to the variousinternational conventions on copyright and performance rights, there has been a certain

degree of standardization. These countries include, notably, the US and the countries ofthe European Economic Area (EEA).

4But even in those countries which are signatories

to the international conventions, the terms and conditions by which IPR is protected, andthe exceptions to this protection that are allowed vary considerably. On the other hand,

by virtue of these same international conventions, the use and reproduction in the UK of

the works of authors and performers from these other countries is generally taken to begoverned by UK law, though here too there are various exceptions and qualifications.5

It hardly needs saying that it is far beyond my remit here to give anything more than ageneral overview of these complexities. As in the case of the previous two chapters,

apart from some passing comments in footnotes and elsewhere, I shall confine myself toconsidering the law as it affects documentary-making in the UK. In this first chapter on

IPR, I will attempt to elucidate some general principles of copyright law that are ofparticular relevance to documentarists whilst in the following chapter, I will look in

more specific detail at the practical implications for documentary-making of certainparticular categories of IPR.

Finally by way of introduction to these two chapters, I should perhaps remind the reader

that I am no lawyer and that the summaries and analyses offered in these chapters shouldnot therefore be considered in any sense to be an informed legal opinion. Readers

confronted by particular real-world IPR difficulties should make sure to consult anappropriately qualified media lawyer or media rights expert.

3See Robertson & Nicol 2002:289-90.4The EEA includes all the countries of the EU plus Norway, Iceland and Lichtenstein5See Cranwell 2002:43, 63- 64 and Weston 2005:2; also, for a more general account, Bently & Sherman

2001:4-23.


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Types of IPR encountered in documentary film-making

There are many different types of IPR, of which copyright is by far the most importantfor documentarists.6This is the property right whereby original literary, dramatic,

musical and artistic works may be exploited in an exclusive manner by their authors. Inthe context of copyright law, the category of author includes not just writers, but also,

amongst many others, music composers, film-makers, photographers, painters, graphicartists, sculptors and architects. Of particular relevance to documentarists is the fact that

the category of author also includes all those whose speech has been recorded in somematerial form, including on film and sound recordings. For, from the perspective

afforded by the CDPA, all speech acts recorded on film or on an audio track may beconstrued as literary works with the copyright belonging to the speaker.

7However, this

general right of authors to exploit their works does not apply if they are employees

whose terms of employment specifically require them to produce such works. In thiscase, the copyright belongs to their employers.

8

As a general principle, copyright law distinguishes between these underlying orauthorial works and recordings in aural or visual media, such as sound-recordings

and television broadcasts. Photographs, interestingly, are not considered to berecordings, but rather a form of artistic work. Films - which for the purposes of the

6This chapter draws extensively on the work of the academic copyright specialists Norman Bently & Brad

Sherman (2001), but also on Roberston & Nicol 2002, Cranwell 2002, and other sources, as

acknowledged. Amongst these is the collection of articles on rights clearances edited by Deborah Wolfson

(1989) for the now-defunct Association of Independent Producers. Although somewhat dated, thiscollection has the particular merit for present purposes of being written from the perspective of the user of

copyright works. This chapter has also greatly benefited from my discussions of copyright with Murray

Weston, director of the British Universities Film and Video Council (BUFVC) and from reading the

pamphlet on the subject that he has produced (Weston 2005). It has also benefited from the general

insights gained during my attendance at a seminar on copyright offered by Bernie Attwell and Alma Hales

of the Open University rights department in February 2005, under the auspices of the BUFVC. Whilst I

am grateful to all these interlocutors for these insights, the construction that I have put on them is

obviously entirely my own responsibility.7See Bently & Sherman 2001: 538Employers can only claim the copyright in a work if it is very specifically part of an employees contract

to produce such a work. Cranwell gives the hypothetical example of a computer programmer who also

writes novels: whilst copyright to all the computer programmes that he devises would belong to his

employer, copyright in his novels would belong to him (2002:52). An important additional point is that theplace and time at which the computer programmer devises a programme would be irrelevant from the

point of view of copyright law: even if he worked it out in his own time whilst sitting at home at the week-

end, the copyright would still belong to his employer. This point is of particular relevance to academic

film-makers employed by universities. In a strict interpretation of the law, copyright in all academic works

produced by academics belongs to the universities that employ them. In practice, most universities choose

not to enforce this right as far as written works are concerned, though debatably - they might be entitled

to do so. But universities may well chose, and some certainly do, to claim copyright over other types of

work produced by their employees, including films. See Weston 2005:4, also Bently & Sherman

2001:119-120


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CDPA are defined as registrations on any medium from which a moving image may by

any means be produced - have an ambiguous status: whilst they may generally be

referred to as recordings in the Act, for some purposes they are treated as if they wereauthorial works. This distinction underpinning the provisions of the CDPA reflects a

more general distinction in the copyright literature between rights in authorial worksand what are variously known as entrepreneurial, related or neighbouring rights.

The latter are generally associated with the technical and organizational skills orresources that are deployed in the use or development of creative authorial rights and

they are typically assigned to the person or body that was financially or logisticallyresponsible for producing the material The ambiguity of the status of films in the CDPA

is therefore understandable, since they often require a combination of both creativeauthorial skills and technical or financial resources.9

A very elementary principle of copyright law is that there is a fundamental differencebetween ownership of the copyright in a work and the ownership of a work as physicalobject. The latter is sometimes referred to in the literature as a chattel and it carries

with it merely a personal property right that entails no necessary right to make a copy ofthe work. So if documentarists wish to make a further copy of a work or a recording

which they happen to have in their possession and they aim to do so through the act ofincorporating a whole or part of it into a film, they are legally obliged to seek the

consent of the persons who own the copyright or their representatives. This consent maybe given freely, or it may be given only upon payment of a licence fee and, at the same

time, be made subject to a number of other terms and conditions. In the film-makingworld generally, this process of obtaining IPR consents and licences is often referred to

as clearing the rights.

Strictly speaking, the rights of performers, which are also potentially of relevance todocumentarists, constitute a different type of IPR altogether in legal terms, even though

they may often be subsumed for convenience under the general heading of copyright inthe literature. In the CDPA they are considered in their own discrete Part of the Act.

10

Essentially these rights permit performers to control not only whether or not theirperformances are recorded in the first place, but also, following a l996 amendment of the

Act, the right to distribute copies of that recording, be it through sale or rental.11

9See Bently & Sherman 2001:28-29, 51-52.

10This is Part II, ss.180-188.11 Prior to the CDPA, performers were not protected by copyright law as such. Initially this was because

performances were considered too ephemeral to qualify for protection, but even when modern recording

technology allowed performances to be permanently fixed from the 1920s onwards, they were widely seen

to be merely translations or interpretations of the underlying works. Performers rights were not

recognized at an international level until 1961, but it took almost another three decades before they were

recognized in the UK. See Bently & Sherman 2001:294-298


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There are also many other types of IPR, relating to such matters as patents for

inventions, trademarks and product designs, as well as a remarkably mixed bag of others

things such as semi-conductor topographies, plant varieties and geographical indicationsof origin.

12So far, however, the owners of these other forms of IPR have not yet found a

viable way of requiring documentarists to purchase a licence from them should thedocumentarists incorporate some reference in their films to the matters or objects over

which they hold a right. But as we shall see in Chapter 4 of this Part, when we shallconsider the appearance of company logos in documentary films, the first signs are

already there that this could become a further headache for documentarists in the future.

General principles

A number of other long-established principles underpin all aspects of copyright law inthe UK, including the CDPA. Perhaps the most fundamental of these is that it is notpossible to establish copyright purely in an idea: it has to be written down or recorded in

some form.13Similarly, it is not possible to establish copyright over information as such,though copyright can subsist in the particular way in which a given body of information

is expressed or presented.14

However, in UK law (though not necessarily elsewhere), theact of making a material and enduring recording is all that is necessary for the copyrightto be created: it is not necessary to send a copy of the work to some institution and

register it there. Nor is it necessary to append the which is the international copyrightsymbol, even if, from the point of view of the rights owner, it is generally advisable to

do so.15 Whilst this automatic principle has obvious advantages for authors, the

downside for users is that in case of doubt, there is no institution or official directory togo to in order to establish whether a given work actually is in copyright and if so, whoowns it.

An important related principle, and one of particular relevance to documentarists, is that

although an idea or performance may be copyrighted by the act of being made materialin a recording, the owner of the recording, who may be different from the original author

or performer, has an independent copyright over the recording. The owner of therecording right may not be able to use the recording against the wishes of the original

author or performer, but equally the author or performer cannot normally use therecording without the consent of the owner of the recording right.

12See www.intellectual-property.gov.uk

13CDPA s.3. The process of making material is often referred to in the literature as fixation14See Cranwell 2002:43. As a result of this limitation, there can be no copyright on the content of news

reporting. But if a publication draws exclusively on a previous work to reproduce a particular body of

information and involves no original research, it may be considered to have infringed copyright, even if

the language has been changed and the information has been presented in a different order. See Robertson

& Nicol 2002:307.15Cranwell 2002: 44, Weston 2005:3-4.


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In order to qualify for copyright protection, a work must be an original creation of the

author to which he or she has dedicated what is sometimes quaintly referred to in thelegal literature as sweat of the brow. This quality has also been more robustly

described as variously involving skill, labour or judgement, selection, judgement andexperience and even labour, skill and capital but the most appropriate way to define

originality remains a matter of contention amongst copyright specialists.16

However,aesthetic considerations such as beauty, complexity or sophistication are entirely

irrelevant, though transience may be taken into account: jokes, for example, areconsidered too ephemeral to attract copyright, even though a cartoon that embodies a

joke is entitled to copyright as an artistic work.17

An exact copy of an existing work is not protected but an identical recording of the same

thing in the real world would be, since recordings are not required to be original insofaras their subject-matter is concerned. So if two documentarists went out and shot thesame establishing shot of a building from the same angle and at the same time of day,

both would be protected by copyright. But if one merely made a video-transfer of theothers shot and used it in a film, then not only would he or she would be infringing the

copyright of the other documentarist, but his or her copy would not itself be protected.18

Infringement and the test of substantiality

In order for a copyright to be infringed, it is not necessary for a work to be copied either

exactly or in its entirety. All that is necessary is for the reproduction to be of anysubstantial part.

19 The Act itself does not give specific examples of what constitutes a

substantial part, albeit with one notable exception which could be of particular

relevance to documentarists. This is that the use without consent of any single image, oreven part of a single image from a film or television broadcast would automatically

16Robertson & Nicol 2002:293. See also Bently & Sherman (2001:80-98) who contend that It is very

difficult if not impossible to state with any precision what copyright law means when it demands that

works be original(ibid: 81). Precision becomes even more difficult when a cross-cultural dimension is

introduced (ibid.:93)17Robertson & Nicol comment Other cartoonists can raise the same laugh so long as their drawings are

different (2002:308).18

See Cranwell 2002:47 and Bently & Sherman 2001:98-99. However the latter (ibid .:164) also report a1977 case involving an artist whose commissioners were sued because she painted some well-known

scenes on the basis of copyright postcards and other paintings rather than going to the locations herself.

Although the judge in this case did not reach a final conclusion on copyright infringement, he did

acknowledge that copyright could subsist in such matters as the choice of viewpoint, the exact balance of

foreground features or features in the middle ground and features in the far ground, the figures which are

introduced. But given the status of film in copyright law as a recording, it seems unlikely that such a

claim could be upheld with regard to film images of the real world since rights in recordings are

generally much more narrowly defined than rights in authorial works.19CDPA s.16(3)


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constitute an infringement.20

But otherwise, the determination of substantiality would be

a matter to be decided by the courts on the facts of each particular case.

Previous cases, as reviewed by the copyright law specialists Norman Bently and Brad

Sherman, indicate that a range of different criteria may be brought to bear on thedetermination of substantiality.

21One of the most important of these is that whatever the

normal connotations of the term, substantiality is not necessarily to be determined onthe basis of any straightforward quantitative calculation: the quality of the part copied

rather than quantity is often the most significant factor, though if the part copiedrepresents are very large proportion this may in itself be sufficient to represent an

infringement. But, conversely, even a very small part may represent an infringement if itis significant enough, as is indeed suggested by the sole example provided by the CDPA

concerning the use of a single image from a film or television broadcast.22

More generally, previous cases indicate that the determination of the significance of anextracted part is to be assessed, firstly, in relation to the work from which it is taken

rather than in relation to the work in which it is used. This suggests that if a few bars ofmusic featured only fleetingly in a documentary and in a shot of no great significance -

for example, in the background of an establishing shot their inclusion could still beconsidered an infringement if they represented a particularly significant passage in that

particular musical piece, such as the chorus. On the other hand, as Bently and Shermanput it, the criteria by which the importance of a part is determined are restricted to those

that are relevant to the nature of the work in question. This restriction derives, theyexplain, from the very general principle that copyright protects the relevantskill and

labour expended by the author in creating the work (the emphasis on relevant istheirs).

23

On these grounds, it could be argued that if the music in the hypothetical example just

described were merely part of the general acoustic environment of the locationrepresented in the shot and for the purposes of the film, fulfilled none of the functions

conventionally associated with music, i.e in providing some sort of entertainment or

20CDPA s. 17(4). The text of this section actually refers to making a photograph of any image forming

part of the film, broadcast or cable programme but a frame grab of a single image in a video editing

suite would certainly constitute a photograph within the meaning given to this term by the Act in section

4(2).21

See Bently & Sherman 2001:174-181.22

In order to circumvent these uncertainties without recourse to the courts, certain collective bodies of

rights owners have agreed certain norms which users can follow without engaging in time-consuming

correspondence in seeking consent or risking a law suit. The Publishers Association, for example, has

agreed that it is permissible for users to publish extracts of 400 words of unbroken text and 800 words of

broken text without formal consent.(Attwell and Hales, pers. comm. 2005). Unfortunately, no such norms

exist in relation to the making of documentaries, though it would probably be in the interests of both rights

owners and users if such norms were developed.23Bently & Sherman 2001:176-7.


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edification to the viewer of the documentary, then this particular use of the music would

not be significant enough to pass the test of substantiality. From this it would follow that

the inclusion of this music in the documentary would not represent an infringement,even if this were done without consent. However, whatever the hypothetical arguments,

in practice the test of substantiality is determined on a case by case basis which meansthat there will always be a certain degree of uncertainty involved.

24

This is compounded in the case of music if a sound recording is involved since this adds

a further layer of complication. Bently and Sherman report that the courts have yet toaddress the question of how the test of substantiality is to be applied to sound recordings

and other entrepreneurial works such as television broadcasts and typographicalarrangements. They argue that whilst it might be possible to distinguish one part of the

underlying musical work from another on grounds of relative significance, there are

generally no grounds for doing so with respect to a recording considered purely as arecording. Thus while a three-second sample that contains the hook of a song may be animportant part of a musical work, it does not necessarily follow from this that the way

the three seconds were recorded will be any different from the way the rest of the songwas recorded. From this they deduce that while there may be some exceptions, it will

usually not be possible to rely on significance in any test of substantiality regardingrecordings: instead it will be necessary to fall back on quantitative measures of what has

been used. However, as they themselves report, what little precedence there is to begleaned from actual cases, though admittedly relating to typographical works rather than

sound recordings, suggests that in practice the courts will take into account issues ofsignificance in the underlying content in applying substantiality tests to the use of

extracts from entrepreneurial works.25

Finally on the subject of infringement, it is important for documentarists to be aware thatcopyright law recognizes various different modes in which it can take place. Primary

infringement is committed by those who are directly involved in the reproduction of acopyright work, recording or performance, whilst those who facilitate the illegal

reproduction or distribution of copyright material may be involved in secondaryinfringement. Thus a documentary director who, without the appropriate consent,

includes copyright material in the course of editing his or her film would be guilty ofprimary infringement, whereas the distributor or broadcaster of the film, or a body that

provided the location and/or equipment for screening the film publicly could be

committing a secondary infringement.

It is often assumed that copying houses or other audiovisual facilities, such as university

24The media lawyer Rhonda Baker (1989:21) warns users of copyright works that Testing the meaning of

a substantial part of a work of copyright in law often depends on the personal caprice of a judge before

whom the case is heard There is no logic to it. In view of this fact, she advises users that It is

therefore always advisable to obtain consent.25Bently & Sherman 2001:179-180.


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audio-visual centres, are also at risk of committing a secondary infringement simply by

providing equipment that allows copyright material to be copied. But Bently and

Sherman point out that the relevant section of the Act specifies that in order for this tobe the case, it is necessary for the equipment used in copying to be specifically

designed or adapted for making copies of a particular work. Such would be the case, ifone were to make a template or mould for reproducing a given copyright work. But they

stress that a facilities house which merely provided a generic copying facility would notbe guilty of a secondary infringement.

26Another important limitation on the

circumstances of secondary infringement is that whereas primary infringement isactionable regardless of the intentions of the person doing the infringing, in the case of

secondary infringement, liability is dependent on the defendant knowing or havingreason to believe that the activities involved were illegal.27

Both these forms of infringement should, in turn, be distinguished from third-partyinfringement. This refers to a situation in which the reproduction of a work also involvesthe reproduction of another copyright work contained within it. This could arise, for

example, when a documentarist edits a piece of archival footage into a testimonial film.Although he or she may have cleared the rights on the archival film, if that film shows a

copyright graphic work, or a performance for which the rights have not been cleared,then a case of third-party infringement will have occurred.

Authorship, ownership and duration

As a property right, copyright can be assigned to third parties by being bought and sold,even leased and mortgaged, or simply by being given away. It is even possible to sellcopyright futures. The bundle of rights that pertain to a particular work may also be

subdivided on the basis of times, territories and classes of conduct and then assigned toa number of different third parties, e.g. the right to reproduce and distribute a film may

be given away to a variety of assignees on the basis of certain specified periods only, forcertain specified territories only and in certain specified media only. Rights in authorial

works and certain performers rights though importantly notrights in recordings - mayeven be transferred from one generation to the next by means of a will.28

For legal purposes, an assignment of rights should be clearly distinguished from a

licence to use a work. Whereas the latter typically applies only to a temporary grantingof permission to use a copyright work for some very particular and short-term purpose,an assignment is much more enduring if not actually permanent, and usually more

26CDPA s.24, Bently & Sherman 2001:186-187.

27Bently & Sherman 2001:155, 187-188.28CDPA, ss.90-93. If a rights owner dies without assigning his or her rights in a will, the rules that are

applied to the transfer of all other properties are also applied to any copyrights that the deceased might

have held. See Bently & Sherman 2001:254-261.


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comprehensive, covering a broad range if not all rights in the work.29

But whatever the

precise conditions, whereas a licence to use a work may be given in a purely verbal form

however inadvisable this may be - in order for an assignment to be legally binding, ithas to be in writing, though this can be no more than an invoice or a receipt.

30

Provided this condition is fulfilled, the copyright in a work can easily and rapidly be

separated or transferred far away from the original author: a particularly celebratedexample are the rights to most of the early works of John Lennon and Paul McCartney

which are now owned by the singer Michael Jackson. Conversely, a company maycontinue to exploit the copyright created by one its employees, leasing it out or

eventually selling the right many years after the employee has left the company. As aresult, tracing rights ownership can be very complex since the original author may well

not be the current of owner of a right.31

On the other hand, although it may be a property right, copyright in the UK is notperpetual. The current general principle is that copyright in an authorial work lasts for

70 years after the end of the calendar year in which the death of the author occurred, orif it is a genuinely joint work, the end of the calendar year in which the death of the last

of the authors to die occurred.32

This period is sometimes referred to by the shorthandacronym p.m.a., which derives from post mortem auctoris, a Latin phrase meaning

after the death of the author.33Prior to 1996, this period was only 50 years but it wasthen increased to 70 years in order to comply with an EU directive that applied to all

member states of the EEA.34

Many of the complications of current copyright legislationderive from the difficulties of reconciling these new durations with the old since they

had the effect of bringing certain works back into copyright, some of which werealready being exploited commercially on the assumption that they were copyright-free.

This duration of 70 years p.m.a. does not necessarily apply to copyrights works outsidethe EEA but it does apply, notably, in the US.35

29See Alberstat 2002:83-84

30Bently & Sherman 2001:25531Weston (2005:4) goes so far as to say that the original author is very rarely the current owner of a

copyright.32CDPA s.12 as amended by the 1995 Regulations, s.5. See

www.legislation.hmso.gov.uk/si/si1995/Uksi_19953297_en_3.htm#mdiv533See Sutton 2004. who reports that in the UK, the idea of post mortem copyright protection was first

introduced in the Literary Copyright Act of 1842 when it established a copyright period of 42 years fromthe date of first publication or 7 years after the author's death. This period p.m.a. was then extended to 50

years by the 1911 Act and this was retained until the most recent extension to 70 years. The same source

comments that many think that copyright duration is now absurdly long. See also Bently & Sherman

2001: 146.34

These amendments to the duration of copyright were the principal business of Statutory Instrument

No.3297, The Duration of Copyright and Rights in Performances Regulations 1995 , which came into

force on 1 January 1996.35However these terms only apply to works published or registered since 1 January1978. The position

with works published before that date is rather more complicated. See the US Copyright Office website


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So even though copyright in a work may not be perpetual, it can often endure for over a

century when it is calculated in relation to an authors longevity since, obviously, thiscircumstance will obtain in all cases in which an author creates a work more than 30

years before his or her death. But given that there is no necessary connection betweenrights ownership and the authorship of a work, particularly if the work was created some

time ago, it is perfectly commonplace for the copyright status of a work to be dependenton the longevity of an author with whom the rights owner no longer has any direct

contact or even knowledge. In the absence of any formal process of copyrightregistration, it may be difficult either for the rights owner or a potential user of the work

to establish exactly when the author died, if indeed he or she has done, and thus howvalid the rights owners claim to the copyright actually is. This is particularly an issue

for documentarists who might wish to use archival photographs or films by little-known

authors.

It is also important to be aware that even after the adoption of EU norms in the UK, the

standard durational term of 70 years p.m.a. does not apply to all copyright material.Crown copyright, which belongs to the Queen and pertains to all works produced by an

officer or servant of the Crown, and even to any produced by the Queen herself,continues to extend for a mammoth 125 years from the end of the calendar year in which

a work was made. Unless, that is, the work concerned has been released on acommercial basis, in which case copyright is restricted to 50 years if this is shorter.36

Perhaps of more immediate significance to documentarists is the fact that, in the UK,

irrespective of the adoption of EU norms regarding authorial works, performers rightsand copyright in recordings of certain kinds continue to have a duration of only 50 years

after the end of the calendar year of first performance or release. This appliesparticularly to sound recordings and television broadcasts, and in the form in which the

CDPA was enacted in 1988, it also applied to films. But, in a subsequent amendment in1995, the copyright duration of films was made dependent not upon the date of release

but upon the longevity of certain specified principal authors, plus the now-standard 70years p.m.a.

37In effect then, these new rules extended the copyright duration of most

films by a vast amount. However these general rules continue to be qualified in certainways which could be particularly pertinent to documentary-makers. But these are

complex to present and their significance is debatable, so I shall defer further

consideration of them until the following chapter.

item Copyright Basics at www.copyright.gov/circs/ . Amongst the countries where the post-mortem term

remains shorter is Australia, where it continues to be life-plus-50-years (Bently & Sherman 2001:148)36

See CDPA s.163, Robertson & Nicol 2002:305, Bently & Sherman 2001:120.37See CDPA ss.13, 14 and 191, as amended respectively by the 1995 Regulations, regs.6, 7, 9 & 10 and

the 2003 Regulations, reg.29. See also Bently & Sherman 2001:152, Robertson & Nicol 2002:304-305.

Cranwell 2002:59 suggests that the duration of copyright in sound recordings and television broadcasts is

70 years, but this would appear to be an error.


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Moral Rights

Prior to the CDPA, copyright had been seen purely as a property right in English law.But the Act broke with this tradition by associating the European notion of moral

rights with authorship.38

The Act identifies a number of moral rights, of which the mostimportant for present purposes are the right of paternity and the right of integrity. The

former consists essentially of the right to be acknowledged as the author of a work,whilst the latter consists of the right not to have ones work treated in a derogatory

manner, thought what exactly the term derogatory means in this context is not clearlydefined.

The requirements of the paternity right are unlikely to be problematic for documentarists

since, under normal circumstances, they will generally have no difficulty in

acknowledging the authors of any works they refer to, be it in an identificatory subtitleor a passage of voice-over at the appropriate moment, or in a end-credit. The right is alsorestricted in a number of crucial ways: for example, it does not apply when a work is

referred to for the purposes of reporting on current events by means of a soundrecording, film or television programme. Nor does it apply if the work is included

incidentally, be it in a work or in a recording.39

These exclusions would account formost, if not all, circumstances in which documentarists might have some practical orstylistic difficulty in giving the appropriate acknowledgement.

The right of integrity, on the other hand, is potentially more problematic for

documentarists since the derogatory treatment against which it provides protection

could be considered to include any modification of a work for film-editing purposes. Inthis connection, the CDPA does provide certain exceptions that could be useful to afilm-maker: for example, here too the right does not apply in relation to any work made

for the purpose of reporting current events. The Act even specifically allows editorialmodifications under certain conditions, though for textual publication rather than

publication as part of a film.40

But to be entirely on the safe side, any risk ofinfringement can be completely nullified by asking rights owners to waive their moral

rights by means of a written release form. This has the additional marginal benefit ofproviding protection against any residual risk of infringing the paternity right. The

waiving of moral rights is not permitted in many European countries, but it is

38In effect, moral rights represent an attempt to accommodate the French concept of droits dauteurwith

the English property-based system. As explained by Winston (2000:76-77), in the French system, an

authors rights as author have traditionally been clearly distinguished from the economic rights associated

with authorship. This distinction was internationalised as long ago as 1928 through its incorporation in the

2ndBerne Copyright Convention.39CDPA, s.79 (4)40CDPA, s.81


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commonplace in the UK. As a result, in the view of the media law specialist Mark

Cranwell, moral rights have little relevance or effect in English law.41

One further wrinkle on this right which is of potential relevance to documentarist is that

the CDPA allows specifically for the right of integrity of employees to be over-ruled bythe owner of the rights in any works they create, which in most cases will be their

employer. So if a documentarist is making films whilst employed by a productioncompany, the executive producer of the company is perfectly entitled to mutitlate his or

her work without fearing any infringement of integrity rights!42

Exceptions

The CDPA lays down a number of conditions or circumstances under which there is noinfringement of copyright, nor of performance rights. The first and most obviouscircumstance is if the rights owner gives consent. The Act does not generally specify

what form this consent should take, though clearly, as in the case of confidence claimsdiscussed in the previous chapter, if a documentarist has this consent in a written form

with a suitably appended signature, it will provide better protection in the event ofsubsequent litigation.

43In many instances, as I noted at the beginning of the chapter, the

rights owner will anyway insist on a formal licence document, in which consent is given

subject to certain conditions and in exchange for a fee. But even when there is no suchdocument, it may be advisable for documentarists to protect themselves against

unfortunate eventualities by getting a written consent. So here then is another rationale

for the oft-resented release form.

The CDPA also makes allowance for certain exceptional circumstances in which the

clearance of copyright has not been possible for reasons that are beyond the control ofthe user of the material. In certain very restricted circumstances, users may be able to

defend themselves simply by saying that they did not know that copyright subsisted in aparticular work. But Robertson and Nicol warn that this is a narrow exception. An

experienced film-maker would not normally be able to make this claim, since everyoneis presumed to know the law, and a simple mistake would not be taken into account. Nor

would it be an acceptable defence unless extensive enquiries had been made withoutthrowing up any evidence that copyright existed in the disputed work. The same authors

conclude that because of all these restrictions, this defence can only be usefully offered

41Cranwell 2002:61, Alberstat 2002:82. See also Robertson & Nicol 2002:332-334 and the relevant

sections of the CDPA, namely ss.77-89.42CDPA s.82. See also Bentley & Sherman 2001:25043Weston (2005:6) cites the old film producers adage here: A verbal agreement is not worth the paper it

is written on.


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where the copied work is old or originates in a country where it is not reasonably

possible to discover whether the necessary conditions for copyright are fulfilled.44

A probably more useful defence is allowed by the Act in circumstances in which the

user knows that copyright is likely to subsist in a work but has not been able byreasonable inquiry to ascertain the identity of an author. The same applies if it is

reasonable to assume that the copyright has expired by virtue of more than 70 yearshaving passed since the author died.

45These provisions could be particularly useful, for

example, to documentarists wishing to use old archival film of uncertain provenance.

But it is important for documentarists to bear in mind in cases like this that even thoughthis defence may be allowable, there is always the possibility that a rights owner may

subsequently come to light. Although a film production company may have disappeared

many years ago, any copyright that it owned could have been sold off by a liquidator toanother, still extant company, along with all the defunct companys other assets.Similarly, even when a film was made by some long deceased independent film-maker,

it is possible that a long-lost relative may emerge, perhaps encouraged by an eagle-eyedlawyer, to make a claim.

Under these circumstances, it is important for documentarists to be able to show that

their attempts to trace the rights owners have indeed been duly diligent. For this reason,when they are unable to establish the authorship of a work that they want to use, it is

advisable to keep a well-documented record of all the enquiries that they have made.These enquiries should normally include approaches to the various agencies that operate

on behalf of rights owners, most notably with respect to music, and to any companies oragents that might have produced the work.

46It should also include a trawl of the

internet, taking advantage of the many sites that can now help in the tracing of rightsowners.47Finally, even if one has been duly diligent and can demonstrate this to have

been the case, this does not absolve one of the obligation to come to some agreementwith any legitimate rights owner who might emerge.[***check***] If this proves

impossible, the only solution may be to take the issue to the courts, but this is unlikely to

44Robertson & Nicol 2002:341n. See CDPA, s.97(1).45CDPA, s.5746I discuss music rights collecting agencies such as the MCPS and others at considerable length in the

following chapter.47

The UK intellectual property agency suggests that one might go further: You may wish to set aside an

appropriate fee for the use of the work in a special bank account, and, when you use the work, apply a

statement indicating that you have tried to trace the rightsholder, but have failed to do so, and then invite

any legitimate rightsholder to contact you. See

www.intellectual-property.gov.uk/std/faq/copyright/find_owner.htm . In the feature film industry, at the

beginning of a production, it is a common practice to set up a fund known as an escrow which is

intended specifically to meet unexpected future eventualities (Murray Weston, pers.comm. 2005).

However, it would probably be beyond the resources of most documentary film-makers to establish an

escrow to meet the claims of unidentified rights owners.


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be in the interests of either party since the sums involved in any reparation are likely to

be very much lower than the legal fees.

The CDPA also allows, in section 31, that as with the moral right of paternity, so more

generally, copyright in a work is not infringed in the case of incidental inclusion in anartistic work, sound recording, film or broadcast. Obviously, in actual practice, the

definition of what constitutes incidental inclusion could be open to a range ofinterpretations. But in a relatively recent case, dating from 1998 and involving a graphic

work shown in a television advertisement, it was established that a use was incidental ifits inclusion was casual, inessential, subordinate, or merely background. In essence,

Bently and Sherman comment. the judge suggested that a copyright work would onlybe incidentally included if it could be removed from the alleged infringing work without

effecting its structure or essence.48

But even within these restrictions, this provision

should be sufficient to cover many different circumstances in which documentaristsunintentionally capture some copyright work in the background of a shot.

However this exception is specifically qualified with respect to musical works insection 31(c) of the Act. This states that a work of this kind shall not be regarded as

incidentally included in another work if it is deliberately included. Quite what thisstatement means is not explained in the Act itself and it too is clearly open to a range of

interpretations. As I shall examine at greater length in the following chapter, thissubsection is interpreted very broadly by music rights owners, giving rise to particularly

vexing problems for documentarists.

Fair dealing and other defences

There are also circumstances in which the CDPA recognizes that there is noinfringement even when the copyrighted material is used quite purposively and without

any effort to gain the prior consent of the owner even when it is quite clear who theowner might be. At a general level, these concessions represent an implicit recognition

in the Act that the legitimate expectation of rights owners to derive exclusive benefitfrom their creative works has to be balanced in some degree against freedom of

expression considerations, particularly the need to protect the capability of the media todeal with matters of public interest.

This is the underlying rationale for permitting, without risk of infringement, what is

known as fair dealing. This concept can be applied to any form of copyright work or toperformances. It can also be applied to sound recordings, films and television broadcast

but under certain rather more restricted conditions. However, there is no precisedefinition of what is meant by this term in the Act, nor any reference to how much of a

48Bently & Sherman 2001: 208


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work may be dealt with, nor to how frequently or at what length it may be dealt with and

still constitute fair dealing. What the Act does do is envisage that fair dealing will take

place for a number of specified purposes and require that the dealing be fair in relationto those purposes. One of these is when a work is referred to or reproduced for the

purpose of reporting current events. Another is when a work is referred to orreproduced for the purposes of criticism or review.

49

Certain further conditions are stipulated in the Act itself. Some are very general, such as

the requirements that the work must have been made available to the public by theauthor and that there must be due acknowledgement of the authorship of a work. Other

conditions are more specific: photographs are specifically excluded from fair dealing forthe purpose of reporting current events, since otherwise news photographers would not

be able to charge for their work. On the other hand, the general obligation to give due

acknowledgement is not absolutely required in the reporting of current events by meansof a sound recording, film or broadcast in recognition of the fact that this may beimpossible for reasons of practicality or otherwise.

50

Whether either of these forms of fair dealing could be invoked as a legal defence in

relation to a documentary incorporating copyright works might be considered a mootpoint. There is, first of all, the general question of whether either of these fair dealing

defences, which are clearly envisaged as being primarily applicable to works beingdistributed through the mass media, should also be available to documentaries published

to more specialised audiences. But for the reasons advanced at the head of the firstchapter of this Part, I would argue that there are no just grounds for denying specialised

publications the protection of the law any more than there are grounds for absolvingthem of the penalties of the law. If this is so, then there are certainly some

documentaries that could be interpreted as involving a form of criticism or reviewwhilst many could be quite legitimately construed, without any special pleading, as

being concerned with reporting current events, even if they are not exactly currentaffairs news reportage in the strict sense. But in the last analysis, in the absence of

precise definitions in the Act itself, whether fair dealing would be a legally tenabledefence in relation to a documentary film would undoubtedly depend to a large degree

on the facts of each particular case and the interpretation that a court decides to put uponthem.

In determining whether a fair dealing defence is tenable, the courts will be concerned toestablish whether the dealing was indeed fair given its the particular purposes. Bentlyand Sherman identify a number of possibly relevant criteria: if the material has

previously been published, was legally obtained and is used only briefly for a

49Bently & Sherman (2001:194) contrast this restricted UK approach to fair dealing with the notion of

fair use in the US legal system whereby a use can be determined to be fair by a much wider set of

criteria.50See CDPA ss.29-30, 189 & Schedule 2, 2(1), all as modified by the 2003 Regulations, S.I. 2498, reg.10


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disinterested purpose, the courts would be much more disposed to accept that the dealing

had been fair than in circumstances in which the material was unpublished, had been

illegally obtained and is used to an excessive degree, particularly if this were to result inconsiderable material gain for the user in a way that might prejudice the material

interests of the owner.51

The courts might also ask whether the same purpose could have been achieved by othermeans that did not involve an infringement of copyright. A case cited by Bently and

Sherman dating from 2000 which has particular relevance for documentarists in this lastregard involved the publication in the printed media of photographs of Dodi Fayed and

Diana, Princess of Wales which had been grabbed from a private CCTV film. The courtsruled that the copyright in the film had been infringed because the evidence that the

newspaper concerned wished to present, namely that Dodi and Diana had been present at

a particular private residence at a particular time, thereby proving the falsity of certainstatements by Dodis father, Mohammed Al Fayed, could equally well have beenpresented by means of the written word.

52In light of this precedent, there may be

occasions when it could be advisable for documentarists to present evidence via a voice-over comment rather than through cutting in copyright visual material into their films.

But even before deciding whether a particular example of dealing could be considered

fair, the courts will be concerned to establish whether it could construed as fulfillingone of the purposes identified by the CDPA as allowable without risk of infringement.

The various cases reviewed by Robertson and Nicol (some of which date from beforethe Act) indicate that as a general rule, the courts in the UK are unwilling to allow

copyright considerations to inhibit freedom of expression and, on these grounds, havebeen prepared to interpret both criticism or review and reporting on current events in

the broadest sense: in 1999, in a celebrated test case, the Court of Appeal concluded thatboth were expressions of wide and indefinite scope, and continued, Any attempt to

plot their precise boundaries is doomed to failure. They are expressions which should beconstrued liberally.

53

However, in a more substantive sense, none of the cases described by Robertson and

Nicol provides any direct parallel with the kind of observational or testimonialdocumentary-making generally advocated in this book. As far as reporting on current

events is concerned, their cases relate in the most part to publications in the printed

media and concern the activities of well-known public figures. These have yet toestablish clearly what exactly is allowable as a currentevent, though in one of the morerecent cases, dating from 2001, the court said that the fair dealing defence was intended

51Bently & Sherman 2001:195-197.52Bently & Sherman 2001:197-19853Robertson & Nicol 2002:318. The case in question wasNewspaper Licensing Agency v. Marks &

Spencer(2000). See also Bently & Sherman 2001:202n.


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to protect the media when publishing matters of current concern to the public and as

such could be applied even when the events themselves might not be recent in time.54

Although the matter of contemporaneity could represent a problem for a testimonial

talking heads film, it should not be so for an observational documentary since thesubject matter is typically based on following live action and would therefore

necessarily be current. Possibly more problematic would be the nature of the event:some recent cases reported by Bently and Sherman suggest that if the matters concerned

are trivial or ephemeral, involving such things as comparisons of the relative merits ofvarious food or fashion products, then they would not be considered as events for the

purposes of this defence.55

Matters which are currently of interest in the national press do not necessarily mean that

they would be considered an event for these purposes either, though press coveragecan turn a matter which might otherwise be considered trivial into an event. A widely-cited example in which this defence was used successfully did indeed involve a

documentary, albeit one of a rather different kind, seemingly, than those that form thecentral subject matter of this book. This was an investigative documentary about

cheque-book journalism, made for UK television, which incorporated 30 seconds of afilm by a German television company. When the German company sued, the English

court upheld the defence on the grounds that the extract from the film had beenrelatively short and was directly relevant to the report on cheque-book journalism that

the UK programme was making.56

In general, observational documentaries tend to deal with subjects that go beyond thetrivial, whilst if the size of the audience is irrelevant in determining whether freedom of

expression considerations should override the property interests of IPR owners, as I haveargued above, then the fact that most observational documentaries concern subjects

whose activities are not of interest to a great number of people should also beirrelevant.

57But whether the balance of these various arguments would convince a court

that a fair dealing defence for the purposes of reporting current events would beappropriate to a documentary film remains to be tested.

As far as fair dealing for the purposes of criticism and review is concerned, it has been

established by the case law relating to printed media that for this defence to be

successful, the contested material must be genuinely subject to criticism and review, andnot used purely for illustration, though in practice the distinction may be hard to draw.

54Robertson & Nicol 2002:318-319.55

See Bently & Sherman 2001:204-20556Robertson & Nicol 2002:31657One of the judges sitting in one of the most widely-cited tests cases, Newspaper Licensing Agency v.

Marks & Spencer(1999), acknowledged that for the purposes of this defence an event may be a matter

of entirely local interest or of interest to a few people. See Bently & Sherman 2001:204n.


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Certainly if the use merely conveys the same information as the original, and hence

competes with it, the courts would probably not consider this to be fair dealing.58

But

with this proviso, the courts have shown themselves to be prepared to apply a wideinterpretation, even allowing the defence in cases where an extract from a copyright

work was published not for the purposes of criticism or review of the work itself but forthe purposes of comparison to the work that is the central focus of attention.

59

Here too, there is no exact parallel in Robertson and Nicols round-up of cases to the

circumstances or subject matters that one would typically encounter in making the kindsof documentary generally advocated in this book. However they do report on another

case in which a defence of fair dealing for the purposes of criticism and review wassuccessfully offered and which has a particular resonance for documentarists of an

anthropological persuasion since it is not difficult to imagine an ethnographic

documentary being made on a similar subject. This was the case ofHubbard v. Vosper(1972)which involved the publication of internal documents of the Church ofScientology by a disaffected former member in order to illustrate and denounce the

gobbledygook religious philosophy on which the cult was based.60

Although this is a rather old case and one that long predates the CDPA, it is neverthelessinteresting in that it highlights another crucial aspect of the criticism and review defence,

also confirmed in many other cases, namely that in order to be successful, it is notnecessary that the criticism and review concern the formal literary or aesthetic merits of

the contested material. In fact, the criticism and review can have nothing whatsoever todo with the form of the material reproduced but can refer exclusively to aspects of the

content, such as the thought or philosophy underpinning a work, or its social and moralimplications.

61Extrapolated more generally, this case suggests that a documentarist who

reproduces a copyright work it need not be a text as in this case, but rather a literarywork of speech, such as an interview, for example, or a performance of some kind

and then subjects its content to serious critical analysis should be able to call upon thisvariant of the fair dealing defence, always provided that there is due acknowledgement

of the source, the extent of the reproduction is commensurate with the purposes ofcriticism and review broadly defined, and that the reproduction cannot be construed as

being in some sense in competition with the original version.

In a number of the cases described by Robertson and Nicol, the fair dealing defence was

used in association with a defence couched in terms of public interest. They report that

58This point was made by Alma Hales of the Open University rights deptarment in the BUFVC seminar

referred to in note 0 above.59

See Bently & Sherman 2001:202. See also Engle 1989:71.60I referred to this case in the previous chapter when discussing the law of confidence (see above, pp.000-000). See Robertson & Nicol 2002:316, also

http://slcc.strath.ac.uk/scotslawcourse/ip/ip/copy/hubbard.htmlfor a more detailed account.61See also Bently & Sherman 2001:202.


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although the CDPA itself did not spell out a public interest defence, it did recognize its

existence in a subsidiary section and in a number of subsequent cases, the defence was

indeed successfully deployed. Something of a setback occurred in 2000, when the Courtof Appeal determined that whilst the defence certainly could be offered in cases of

copyright infringement, it should be much narrower than in breach of confidence cases.In effect, the court ruled that it should only apply in cases where the enforcement of

copyright would result in effects that were immoral, contrary to family life or injuriousto public life, health or safety in various ways. But in subsequent copyright cases, the

public interest defence has received a further boost, particularly with regard to freedomof expression considerations, as the influence of the Human Rights Act 1998 has

continued to percolate through English law.62

In addition to criticism or review and reporting current events, the CDPA specifies

two other contexts in which fair dealing might take place, namely for the purposes ofresearch of a non-commercial purpose and for the purposes of private study.63 Clearlya defence on private study grounds would not be useful for documentarists since by

definition, they intend to show their work to third parties. But, on the face of it, it seemsthat there might be a case for arguing that documentaries made for the purposes of

ethnographic or other forms of social research could fall into the first of these categories.Certainly ethnographic research itself is not usually commercial, though it might be said

that if the films based on this research were then distributed in such a way that a profitwere generated, they could then no longer benefit from this defence. However, there is

also another shortcoming with this particular form of the fair dealing defence whichmakes it of limited value to documentarists. This is that although fair dealing for the

other purposes that we have considered may make use of sound-recordings, films andtelevision broadcasts without risk of infringement, this is not recognized in the Act in

connection with fair dealing for the purposes of research or private study.64

It is sometimes assumed, erroneously, that if material has been released for promotionalpurposes in connection with a work for example, the trailer of a feature film that it

may then be re-used without risk of infringement. It has been suggested that the origin ofthis assumption is a convention developed in the US where such material is sometimes

referred to as public domain or PD.65

But whatever its origins, the assumption isexplicitly contradicted in the CDPA which states that although there is no infringement

in an artistic work when it is reproduced for the specific purpose of advertising that

same work for sale, it isan infringement if that promotional material is then dealt with

62See Robertson & Nicol 2002:320-322. But see also Bently and Sherman 2001:209-211 who at time that

they were writing, entertained serious doubts about the continued viability of this common law defence.63

See CDPA, s.29 as amended by the 2003 Regulations, S.I. 2498, reg.9.64Robertson & Nicol 2002:319. Nor can this defence be offered in relation to dealing in performances

since most of the acts covered by the defence fall outside the rights conferred on performers (which do

not extend to the making of recordings for private or domestic purposes) (Bently & Sherman 2001:299).65See Weston 2005:7.


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for a different purpose. A later amendment made it clear that dealt with in this context

should embrace any form of communicating that material to the public, not just

commercial uses.66

Educational Uses

If certain doubts remain with regard to the viability of a fair dealing defence when films

are made for ethnographic research purposes, what is clear from the Act is that there isno copyright infringement in any work, including those in aural and visual media, when

these are reproduced in the course of instruction or of preparation for instruction, i.e.for teaching purposes withinan educational environment. This exception is subject to

various conditions including that the reproduction is done by a person giving or

receiving instruction, that the original work is given sufficient acknowledgement andthat the instruction is for a non-commercial purpose. The 2003 amendments to the Actintroduce the additional specific requirement in relation to literary, dramatic, musical or

artistic works - though not for sound-recordings, films or broadcasts - that there shouldalso be fair dealing. In this context, it is reasonable to suppose that this should be

understood in the same way as fair dealing is understood more generally, i.e. theproportion of the works used, and the manner, should be commensurate with theeducational purpose and should not compete in any way with the rights owners material

rights in other contexts.67

The provisions of the CDPA also mean that there is no risk of copyright infringement

when documentary films made by students, or by their teachers, are screened within aneducational institution to those who are directly connected with the activities of theestablishment. But things get more complicated if the students or teachers should want

to screen or distribute these films to broader audiences. For the Act expressly excludesfrom the copyright dispensations any copies of works produced for educational purposes

that are subsequently dealt with. It goes on to specify that in this context dealt withincludes not just copies that are offered for sale or for hire, but also, according to a 2003

66CDPA, s.63 as amended by the 2003 Regulations, S.I. 2498, reg.17. Bently & Sherman (2001:217)

explain that this section serves to reconcile a possible conflict between the owner of a work for example,

a painting - who wishes to advertise it for sale and the owner of the copyright in that work who might

well be different.67

CDPA, s.32 (1-3), as amended by the 2003 Regulations, S.I. 2498, reg.11. Another important condition

is that the reproduction should not be by a reprographic process. This is intended to prohibit bulk

photocopying of textual material which obviously does not apply to films. It would be rather pushing the

limits of language to suggest that video-copying represents a form of reprographic process but clearly

bulk copying of videos would be against the general spirit of the exceptions granted to educational

institutions by the Act. However there is otherwise no specific prohibition on the making of copies of

videos containing copyrighted material produced in educational institutions, so it seems reasonable to

presume that the making of a limited number of copies for giving to the subjects of a film, or to friends

and family, would not be precluded.


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amendment, those that are merely communicated to the public.68

Moreover it also

makes clear, albeit in a subsequent section obviously aimed primarily at schools, that

what constitutes the public in this context should be strictly interpreted. For even if itsonly parents of a pupil at the establishment who are in the audience, then for copyright

purposes, the audience is no longer an audience of those directly connected with theactivities of the establishment, but rather a public audience. This provision is obviously

intended to prohibit schools from putting on plays and screening films without seekingan appropriate licence from the rights owners. But it could be interpreted as also being

relevant to the public screening of films made within tertiary educational institutions.69

If this is a correct interpretation, then it would appear that unless the necessary consentsor licences have been obtained, student works including copyright material that are

screened in a public place or otherwise distributed to the public in general would be at

risk of infringement. Of course, the generally applicable defences discussed abovewould still be available with regard to these student works, i.e. the incidental inclusion,fair dealing and public interest defences, as would the more general test of substantiality

and any other relevant exceptions.70

But this is nevertheless a consideration that bothstudents and course-givers need to take into account right from the start of any

production since whilst the film-maker is still on location, the arrangement of thenecessary consents will often be very much easier than it will be weeks or months later

when the public release of the final edited version is imminent.

Managing Copyright Risk

Many documentarists will undoubtedly consider the process of familiarizing themselveswith the intricacies of copyright legislation as supremely tedious and a most unwelcome

distraction from the more creative aspects of their craft. But whilst it is certainly truethat immersing oneself in the intricacies of copyright could hardly be called entertaining,

it does have a number of consolations.

Perhaps the most important of these is that it gives one a certain degree of confidence inmanaging the risk of copyright infringement that is a necessary aspect of making almost

68CDPA, s.32, 5(b) as amended by the 2003,Regulations, S.I. 2498, reg.1169

CDPA, s.3470

With specific reference to sound recordings, the CDPA states in s.67, as modified by reg.18 of the 2003

Regulations, that there is no copyright infringement if they are played as part of the activities of, or for the

benefit of a non-profit club, society or other organisation with charitable objectives or which are

otherwise concerned with the advancement of religion, education or social welfare. Certain conditions

attach to this exception, including that any charge for admission or profit from goods sold in conjunction

with the playing of the recordings, should be applied solely for the purposes of the organisation and that

the person doing the playing should not be acting for personal gain. This measure is presumably intended

to allow such bodies as youth clubs and churches to play music in their establishments, but it would

appear also to provide cover for the public screening of student films that include copyright music.


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any documentary, and certainly any documentary made in the UK or a legal jurisdiction

with similar copyright provisions. At the beginning of this chapter, I pointed out that

copyright infringement can lead to various legal ennuis - not just to a civil action buteven to a criminal prosecution. But the reality is that in the great majority of cases,

disputes about copyright never get as far as the courts. When they actually do so, theremedies open to an aggrieved rights holder are actually quite limited. In the simplest

cases, successful claimants can merely claim compensation for the fee that they wouldhave been able to charge if the defendant had taken out the appropriate licence. If the

breach of copyright has been particularly flagrant or if the defendant has managed tomake a large profit out of the breach, the courts may, at their discretion, decide to award

additional damages or require the defendant to hand over the profits to the rights owner.The courts can also order delivery up to the claimant of any outstanding copies of the

infringing work which the defendant may still retain. But this too is a discretionary

remedy which will only be enforced if the courts conclude that the rights of the ownercannot be protected in some other way.71

Although in theory perfectly possible, criminal prosecutions in copyright cases arerelatively rare and it is highly unlikely that they would be brought against any

documentary film-maker. The Crown will only initiate a criminal prosecution if aninfringement involves knowing commercial piracy on a significant scale. Private

individuals or bodies may initiate private prosecutions but these too are rare for althoughthey might result in a fine for the defendant and an award against him or her of the legal

costs, they do not entail any financial compensation for the person bringing theprosecution.

72

Even so, when the spectre of paying legal costs are added into the equation, let alone the

time-consuming inconvenience of a court case, these penalties should be enough toconcentrate the mind of any documentarist on the importance of not giving any rights

owner the grounds for making a claim for a copyright breach. However, the mind of apotential claimant should also be concentrated by the knowledge that the documentarist

may be able to offer any one of the various defences described above and if, in the eventof a court case, the documentarist were successful, it would be the claimant who would

be saddled with the legal costs. It goes without saying that these are usually likely toexceed by far the value of the fee that he or she would have been able to claim for the

use of the material in dispute.

Thus if a claimant should indulge in any form of sabre-rattling, suggesting dire legalconsequences should the documentarist not pay up some large fee for some alleged

breach of copyright, the documentarist who has considered copyright matters in somedetail will be well placed to take some sting out of the encounter simply by making it

71CDPA, ss.96, 99, 100. See also Cranwell 2002: 59-60, Robertson & Nicol 2002:340-342.72CDPA, s.107, also Cranwell 2002:60-61, Robertson & Nicol 2002:342-343.


24/24


clear that he or she is aware that whether an infringement has occurred is usually far

from being a cut-and-dried matter. Moreover, if an infringement has occurred various

defences against the charge may be available. Within this balance of powers, it is muchmore likely that an equitable settlement between rights owner and user can be reached

without any recourse to the courts.

Another potential benefit of familiarizing oneself with copyright matters is that itenables one to negotiate a licence to use copyright material with greater confidence. As

a general rule, the level of fee that a rights owner seeks will be dependent on suchfactors as the nature of the production and its commercial potential, what media it will

be distributed through, which territories of the world it will be distributed in, and theperiod for which the licence is sought. Whilst the rights owner will be seeking to licence

as narrowly as possible for the highest possible fee, the documentarist should be hanging

in for the widest licence at the lowest possible fee. Perhaps more than anything else, it isimportant for documentarists to realize that however apparently set in stone the feesdemanded by rights owners or their representatives may be, in reality, haggling over fees

is as customary in rights negotiations as in any Andalucian horse fair. The onlydifference is that in a rights negotiation, the deal should normally be clinched by the

exchange of some sort of written contract rather than by the mere touching of hands.

Finally, of course, a familiarity with copyright matters should enable documentary film-makers to give better protection to their own copyright when they move from producing

to distributing their own work. The best game-keeper, it is said, is always the formerpoacher.

10/3/05: 12,073 words including footnotes (9,742 without).

2.2.1 IPR Principles Times

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Transcript of 2.2.1 IPR Principles Times