PIJIP and South African Filmmakers to Launch Report on Copyright and Documentary Filmmaking in South Africa

December 11, 2009

Report finds that a restrictive “clearance culture” inhibits the production and dissemination of documentary films; but local law has many useful features.


CONTACTS, American University:

Franki Fitterer, AU Washington College of Law
Director of Public Relations; ffitterer@wcl.american.edu
Peter Jaszi, AU Washington College of Law
27.79.935.0112; pjaszi@wcl.american.edu
Sean Flynn, AU Washington College of Law
27.79.935.0112; sflynn@wcl.american.edu 

CONTACTS, South African Filmmakers:

Marc Schwinges, Documentary Film Association
27.11.483.8801; treasurer@docfilmsa.com
Eve Rantseli, Women of the Sun
27.11.487.3036; info@wos.org.za
Sipho Singiswa, Black Filmmakers Network
072.146.8463,  siphos@handheldfilms.co.za


The International Copyright Balance and Documentary Film Project of American University, is releasing a groundbreaking report and film on the experiences of South African documentary filmmakers with copyright clearance obligations. The report and film, sponsored by the Ford Foundation, will be simultaneously released at a film screening and workshops with filmmakers December 10-12, 2009, in Johannesburg, South Africa, and on the web at wcl.american.edu/pijip/go/internationalfilm

The report finds that in South Africa as in other countries, documentary filmmakers need to quote other material—including music, still images, news footage or even images from commercial films—in order to tell their stories. Such material is normally copyrighted. Copyright laws in South Africa and around the world allow for the use of such material by filmmakers and others to create new expressive works, but filmmakers often do not know their rights. The report found, for example, that nearly 70% of South African filmmakers do not know they have rights to use copyrighted material in their films to review or critique copyrighted work, as a “fair quotation,” or under other circumstances. As a result, filmmakers often avoid the use of such material, restrict the distribution of their films, especially from international markets, and do their work under an assumption that they are frequently breaking the law.  

Professor Peter Jaszi at American University’s Washington College of Law (WCL), one of the project’s Principal Investigators, explained: 

A key finding of the project is that South Africa’s law contains many important rights for filmmakers and others who use copyrighted material without license to create new works. However, widespread ignorance of these rights has fueled the creation of a ‘clearance culture’ in which distributors and broadcasters demand that every use of copyrighted material in a new film be licensed.

Eve Rantseli, director of Women of the Sun, commented:

This report documents what we have long known – that filmmakers avoid content, restrict distribution and often give up on projects all together because of the high costs of clearing copyrights. The project is exciting in pointing to a concrete solution – that filmmakers have rights that we can learn to use.

The report summarizes a set of concrete recommendations that were adopted by leading documentary filmmaker organizations in South Africa at the final meeting of the year’s research. Sipho Singiswa, Chair of the Black Filmmakers Network, one of the partner organizations, explained:

Perhaps the most exciting aspect of this project is that it led to local filmmaking organizations in South Africa resolving to engage in copyright policy debates to expand the utility of copyright users’ rights. We have pledged to create best practices statements, generate copyright law reform proposals, build a legal advice network and create ethical standards for the use of traditional stories and personal narratives in their films.

The report arrives several weeks after a meeting between President Jacob Zuma and his cabinet on copyright in the creative industries and in the midst of a 5-year study of copyright law reform initiated under the previous administration. Marc Schwinges, an independent film producer in South Africa and board member of the Documentary Film Association, which is a partner in the project, explained:

This report comes at a key moment in South Africa’s deliberations over copyright reform. Filmmaking industries have been actively engaging on issues of copyright policy and its effect on filmmaking for some time. And now we have the ear of the administration. But until this project we were not actively engaged on the issue of users’ rights in the copyright law. Many of us just did not know that they existed or that they could be expanded and shaped by our industry.

The project was developed in partnership with American University’s Center for Social Media (CSM), which has worked with PIJIP since 2004 to clarify and expand access to fair use within U.S. law. The CSM-PIJIP partnership has created a range of tools for, among others, documentary filmmakers, media literacy teachers, and online video makers. See centerforsocialmedia.org/fairuse. American University Professor Patricia Aufderheide, Director of CSM, explained:

We've learned in the U.S. that people need to understand their rights to use copyrighted material better, and that when they do, they make better work, different work, and more of it. We're delighted to see documentary filmmakers in South Africa undertaking the same process of self-help.

Sean Flynn, Associate Director of WCL’s Program on Information Justice and Intellectual Property and a Principal Investigator on the project, describe the project’s partnerships between international copyright experts and South African filmmakers and legal experts as “a model example of how groups in the north and south, academics and practitioners, can work together.” He explained:

South African filmmakers are now taking action themselves with PIJIP’s technical assistance, and that is great news. As our projects have found elsewhere, practitioner communities often don't have the resources to execute the research, survey local and international laws, and facilitate the process of learning the law and asserting consensus over interpretation needed to fully take advantage of their rights. That is where collaboration between the academy and the practitioner community is so fruitful for both sides.

The launch of the report and film will coincide with a multi-day workshop on the rights on filmmakers to use copyrighted material in their films organized by the Documentary Filmmakers’ Association and Women of the Sun. The workshop will begin December 10 with a public screening and discussion with the director (Margaret Brown) of The Order of Myths, a documentary that explores race, class, music and celebration at Alabama’s Mardi Gras, and which benefitted from a project in the U.S. working with filmmakers to understand users’ rights under copyright law. On December 11 and 12, workshops will discuss how South African filmmakers can use and expand users’ rights under South Africa’s copyright law. 

The Program on Information Justice and Intellectual Property (PIJIP) at the Washington College of Law promotes public interest approaches to domestic and international intellectual property law through advocacy, events and the provision of legal and consulting services.  PIJIP’s activities focus on a balanced approach to intellectual property and other legal regimes that reward creators while ensuring broad public access to information and its products.

American University’s Center for Social Media investigates, showcases and sets standards for socially engaged media-making. They organize conferences and convenings, publish research, create codes of best practices, and incubate media strategies. The Center is part of AU’s School of Communication.

The Documentary Filmmakers' Association (DFA) was established to nurture and develop the interests of documentary filmmakers in South Africa. It aims to create a unified voice for documentary filmmakers and gain recognition for this genre of South African filmmaking.

The Black Filmmakers Network was formed to represent the particular interests of black filmmakers in South Africa. It has been active in recent policy debates regarding the ownership interests of filmmakers in films commissioned by the nation’s public broadcaster.

Women of the Sun is a member based non-profit support- and advocacy organization for African women filmmakers. The organization is based in South Africa but works actively with members in Angola, Namibia, Nigeria, Zambia, and Zimbabwe in addition to the members in South Africa. The organization is project driven and works to create a forum for African women filmmakers to share their visions and experiences.

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