Copyright & Documentary Film in the Commonwealth: Legal Scholar Reports from Six Countries


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Jeroline Akubu. Balancing Features in Uganda's Copyright Law.

This report summarizes the factors contributing to Uganda’s provision of fair use and other balancing features in its copyright act. It discusses the balancing features in place in Uganda, Kenya, and Tanzania. Finally, the report emphasizes the gap between the written law and the law in practice. Finding that the problem lies in implementation, the report calls for the education of officials and filmmakers, many of whom believe that fair use is immoral.

Jeremy de Beer. Fair Dealing for Filmmakers: A Report on User Rights for Documentary Filmmakers in Canada.

This report briefly summarizes the historical evolution, current interpretation and future direction of fair dealing norms in Canada. In the past, restrictive statutory provisions were interpreted narrowly. The Supreme Court of Canada substantially broadened the scope of users’ rights of fair dealing with its balanced interpretation in CCH Canadian Ltd. v. Law Society of Upper Canada. Efforts are underway to develop best practice guidelines for documentary filmmakers, but could be undermined by legislative reforms proposed recently.

Emily Hudson. Fair Dealing and Documentary Filmmakers: Norms and Laws in Australia.

This report provides a summary of the history, interpretation, current application and potential reform of fair dealing provisions in Australia, focusing in particular on their relevance to production of content by documentary film makers. It concludes that licensing of third party material appears to be the main copyright management strategy for Australian documentary film makers – at least for those operating within traditional funding and distribution models. The use of fair dealing, on the other hand, appears to be limited.

Ayodele Kusamoto. A Short Summary of the Balancing Features of Copyright Law for Documentary Film Makers in Nigeria.

This report traces the colonial roots of the Nigerian Copyright Act and discusses the current Act’s application to the use of copyrighted material in documentary films. The report identifies three main actions needed to implement fair dealing provisions in Nigeria for the benefit of documentary filmmakers. One is the creation of guidelines for documentary filmmakers that will define fair dealing and increase certainty of what is permitted use. Another is the education of the judiciary on the balancing features of the copyright act. Finally, the report calls for the development of an international consensus on “fairness.”

Lawrence Liang. Fair Dealing and Documentary Film in India.

This report discusses the history and current state of documentary film production in India and the copyright barriers hindering its growth. It traces the development of fair dealing in the Copyright Act and analyzes its application to documentary films, concluding that while fair dealing facilitates educational use of copyrighted material it is not as helpful for cultural productions. The report advocates an extension of Section 52 of the Copyright Act to cover films. The question remains whether such an extension would effectively insulate filmmakers from infringement when using copyrighted material in documentaries. The report concludes that documentary filmmakers must campaign for reform.

Tobias Schonwetter. Summary of the Evolution, Current State, and Potential Future Developments of the Fiar or Flexible Dealing Norms in South Africa that Allow the Use of Copyrighted Material, Especially in Documentary Films, Without Permission of the Copyright Holder.

This report criticizes the South African Copyright Act of 1978 as outdated. It summarizes the evolution and current state of the balancing features in the Copyright Act, focusing on the application of fair dealing to documentary film production. Uncertainty of what constitutes fair dealing results in under-use of the provision. Rather than risk litigation, filmmakers pay high licensing fees or forego using copyrighted material altogether. The report states that market dominance by the South African Broadcasting Corporation further exacerbates the problem by escalating the price of copyright licenses. The report expresses a need for a set of guidelines for documentary filmmakers on permissible use of non-licensed copyrighted material. It also suggests that South Africa pay close attention to the benefits of changes made to copyright in Australia, New Zealand, Brazil, and India. Lobbying for amendments to the Copyright Act is currently underway by both copyright owners seeking greater protection and users of copyrighted material seeking greater access.