Any copyright act anywhere in the world attempts to offer a balance between the right of creators and owners of that copyright, and the need to create new works, which might need to include certain material, under certain circumstances from other works. As such any copyright act is made up of a standard set of rules, and a series of limitations and exceptions, which attempt to create that balance.
As creators of film and television works, we would like to protect and take ownership in the work we create. Some old sections of our current South African copyright act support the South African Broadcasters belief that they by default are “Owner of Copyright”. This belief is based on the limitation and exception of section 21 (1) (c) for a commissioned “cinematographic film”, which failing contracting otherwise, as allowed by 21 (1) (e), shall vest with the commissioner in this kind of work. This default position, using very old wording (e.g.: “cinematographic film”) has given broadcasters a principled default position for copyright ownership in work not created by them, purely because they commissioned it. It is an unusual and dated exception, and the independent production sector in South Africa, believes the exception created by 21 (1) (c) for “cinematographic film” should be removed in its entirety, allowing for a more even playing field in the creation of creative works, and placing the default position of copyright with the creator, as it is for most other creative works, and recognising the rights of the creator of the works ahead of the broadcaster of the works, who requires the work predominantly in order to meet their broadcasting and audience requirements.
On the other side of the balance of copyright, all copyright acts (including the South African one) also contain provisions, sometimes known as fair dealing or fair use rights, that allow those producing new work to use copyrighted material without permission or payment in some circumstances. For example, many countries copyright laws contain provisions that permit the quotation or other use of copyrighted music, photographs, film footage and other material in order to comment on or criticise that work or to illustrate a point or argument. For documentary filmmakers and other media makers, these features of copyright law are often essential to promote free expression and ensure that copyright does not operate as a charter for censorship.
As mentioned, at the same time, documentary filmmakers are themselves copyright holders, whose businesses depend on respect for principles of copyright law. Finding the right balance of documentary filmmaker interests as owners and as users of copyrighted material is thus a key objective of filmmakers. Copyright laws and any amendments, take their lead from presidents developed in industry sectors which they apply to, and execution of details of the act, are always based on test cases, or usually best practices developed by a sector, affected by such detail in a copyright act.
The South African copyright act was last amended in 2002, based on the original act of 1978! The act has been under scrutiny by sections of the Department of Trade and Industry (DTI), who control it, since at least early 2009, and is now in the final stages of review. This is thus a critical time for the independent production sector, and especially Documentary Filmmakers who are also affected by the right to re-use existing material, to develop recommendations for our industry which can inform the changes in the act for the future of our industry to both offer increased rights ownership, and protection of the rights of the work created, but also recognising the need to allow new works to be created utilising existing works.
The DFA program on copyright has enjoyed the participation of local and international experts in the field of copyright law since early 2007. The first driving force behind alerting our sector to the need to interrogate our own copyright acts limitations and exceptions, and to help pave the way for the copyright review process was, the USA based, Program on Information Justice and Intellectual Property (PIJIP) of the Washington College of Law, of the American University.
Starting with visits, workshops and an intensive research phase from early 2007, PIJIP sent two respected professors (Prof Sean Flynn and Prof Peter Jaszi) who helped our sector to explore (1) the problems that current interpretations of South African copyright law may be posing to the development of the documentary film industry, and (2) opportunities to address those problems through changes in law or the practice of filmmakers. This project, was originally a partnership between the Ford Foundation, South African filmmaker organisations and the Program on Information Justice and Intellectual Property at the American University.
The two professors were responsible for initially assisting the documentary sector in the USA creating a now extensively utilised, and respected, USA Documentary Filmmakers Statement of Best Practices in Fair Use, which guides the creation of new Documentary works using existing works, without compensation in the USA. They have subsequently been involved in similar projects in Canada, Israel, Australia, the UK and the EU.
The professors had studied our South African copyright act, and recognised certain similarities to other countries acts they had engaged with, which they hoped would allow them to assist us to ultimately reach a best practices document for, to start with, the documentary filmmaking sector, in terms of our existing fair dealing provisions of our copyright act. They also hoped the engagement would help us to better understand and interpret our own copyright act, as well as be guided on the process of giving constructive input for its pending review process.
Additionally they brought in the expertise of several copyright experts in South Africa including Andrew Rens and Tobias Schonwetter.
To date they have continued the engagement as detailed below, but for various reasons, we have not completed the process of creating any “Best Practices Statement” for the Documentary or any other sector in South Africa, at this time.
In preparation of a first workshop on this matter, which took place in Cape Town on the 19th and 20th of March 2009 hosted by The Documentary Filmmakers’ Association, The Black Filmmakers Network, the Program on Information Justice and Intellectual Property, American University and the Centre for Social Media, American University, a research process was conducted between October 2008 and February 2009 which was then further discussed and developed at the event. As such the research was interrogated and explored before the report was released later that same year.
This video shows highlights from the March 2009 workshop with South African filmmakers at which the filmmaker survey results were discussed and enhanced. It illustrates a lack of familiarity with limitations and exceptions to copyright among many documentary filmmakers.
Following a special screening at the Market Theatre of the film The Order of Myths by Margaret Brown on the evening of Thursday the 10th of December 2009 (a documentary which benefited from a project in the U.S. working with filmmakers to understand users’ rights under copyright law), a two day follow-up Workshop took place in Newtown, Johannesburg (SAB World of Beer Conference Venue) on the 11th and 12th of December 2009 at which the final research Report was released. A substantial piece of work, representing both research on current perceptions and an actual legal review entitled: Untold Stories in South Africa: The Creative Consequences of the Rights Clearance Culture for Documentary Film.
The Documentary Filmmakers’ Association, Women of the Sun, the Program on Information Justice and Intellectual Property, American University and the Centre for Social Media, American University, presented the special 2-day workshop and film screening focusing around the issue of expanding the utility of copyright users’ rights for documentary filmmaking.
The event was sponsored by the Ford Foundation, the NFVF, The City of Johannesburg, Underdog Productions and the Gauteng Film Commission, and this workshop was again part of a joint project with American University’s Program on Information Justice and Intellectual Property and the Centre for Social Media, which are all working with filmmakers around the world to better understand and expand rights to utilise copyrighted material in filmmaking without license.
In addition to the usual professors from PIJIP (Prof Sean Flynn and Prof Peter Jaszi), the event included additional speakers such as Andrew Rends (Intellectual Property Fellow, Shuttleworth Foundation, Legal Lead for Creative Commons South Africa and co-founder and director of The African Commons Project), Margaret Brown (The Independent Filmmaker who created the reference film), and Freddy Ogterop (Visual History Archive, University of Cape Town).
A presentation was given on the 13th of September 2011 by Dr. Tobias Schonwetter over the People 2 People documentary conference in Johannesburg. The presentation focused on the work done to date on Fair Dealing – The Balance of Copyright and was co-presented by Marc Schwinges , providing the DFA’s input and the history of the process. The presentation by Dr. Schonwetter can be downloaded here.
Friends of SASFED were invited to a workshop on Copyright Users Rights and the Clearance Culture in South African Filmmaking on August 18 2014, at the NFVF, 87 Central Street, Houghton, 2198, Johannesburg.
This workshop was hosted by SASFED and its Affiliates especially the DFA (www.docfilmsa.com), the Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law in the United States, and the Intellectual Property Unit at the University of Cape Town.
The venue was generously sponsored by the NFVF.
The workshop followed, and reported back on, research by the partner organisations on documentary filmmaker views and perceptions on the rights of filmmakers to reuse and transform material in their filmmaking without licensing restrictions. The research showed that such practices are common and often thought to be illegal, but are likely fully within filmmaker user rights as explained above.
This workshop featured a roundtable discussion with the researchers on the outcomes of that research, as well as some of the possible actions that could be taken supported by it, including taking positions in the announced revision of the Copyright Act and the production of best practices statements by filmmaker organisations.
The roundtable participants again included Peter Jaszi, Professor of Law, American University Washington College of Law, Sean Flynn, Executive Director, Program on Information Justice and Intellectual Property (PIJIP) at American University Washington College of Law, Tobias Schonwetter, Executive Director, IP Unit, University of Cape Town and Andrew Rens, Fellow, IP Unit, and University of Cape Town.
The Program (which can be seen in the stream) included:
Introduction and Lessons from the United States
Untold Stories in South Africa: Summary of Research Findings
Report summary of Creative Consequences of the Rights Clearance Culture for Documentary Filmmakers
Proposals for the South African Copyright Act Revision
Creative Commons Licensing and the Availability (Present and future) Legal Assistance for
You can see the video of the event which was originally streamed live can be seen in four parts HERE.
On the 13th of August 2015, The Cultural Industries Legal & Advisory Centre (CILAC) hosted a Roundtable Discussion with South African and U.S. copyright experts and filmmakers on the recently published South African Intellectual Property Policy and Copyright Amendment bill, again at the NFVF (National Film & Video Foundation) in Johannesburg.
This workshop was convened by CILAC in conjunction with the following organisations and institutions:
The Copyright Act was announced as being amended for the first time since 1978, and it was raised it is vitally important for the filmmaking community to be at the forefront of important changes affecting the industry’s legislative and policy environment.
The goal of this workshop was to build better stakeholder and researcher understanding of the implications of balanced intellectual property reform for filmmakers.
Professor Peter Jaszi and Sean Flynn are returning to South Africa again, on the occasion of the publication of a new Copyright Bill in South Africa. They are available on December 9 for a meeting with filmmakers and other creators.
In particular, they are aware of our industries ongoing interests in the provisions on commissioned works. The draft they have most recently reviewed does not fully address filmmaker concerns — continuing to include language granting copyright ownership to the broadcasters where they fund a work even where it does not exercise editorial control. They are also available to talk about their continued research on the benefits of fair use among creative communities.
Watch this space for details of an event around this date.