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Documentary Filmmakers Win Exemption from Digital Millennium Copyright Act

By IDA Editorial Staff

Documentary filmmakers today gained access to previously "locked" DVD content for fair use in their productions under an exemption to the Digital Millennium Copyright Act granted to them by the US Copyright Office.

The exemption was granted as a result of an action spearheaded by entertainment attorney Michael Donaldson, who assembled a coalition of documentarians and filmmaker organizations led by the International Documentary Association and Kartemquin Films, the Chicago-based nonprofit. Donaldson provided legal counsel for the effort on a pro bono basis, along with the USC Gould School of Law Intellectual Property & Technology Law Clinic, led by Professor Jack Lerner. 

The exemption allows documentarians to obtain short portions of material from DVDs, even when that material is behind encryption and other digital locks for any non-infringing use in a documentary. That includes copying public domain materials and to make fair use of other material contained on such DVDs for use in a documentary. This was a crime under the Digital Millennium Copyright Act of 1998. Documentary filmmakers can take advantage of this exemption through October 2012, when the next DMCA rule-making will take place and the filmmakers' exemption will be up for renewal.

Many filmmakers, particularly those who incorporated current or historical events into their work, were previously restricted by the DMCA from using a wealth of material available only on DVD. Today's decision enables them to use everyday cultural material contained on DVDs to tell their stories.  

 "The organizations and filmmakers who have joined together on this issue represent the cornerstones of the documentary filmmaking community in the United States," said Donaldson, in a statement. "The filmmakers knew it was time that they confronted this problem that hampered their work on a daily basis, so we decided to come together as a united front--filmmakers and advocates alike--to change the law. Collectively, this group--five major documentary and independent filmmaking organizations and six award-winning documentary filmmakers--has garnered Peabody Awards, Academy Awards, National Board of Review honors, Sundance Film Festival Awards, MacArthur Foundation recognition for excellence, and some of the most honorable, international distinctions in film over the past 50 years.

"In a digital world without this exemption, fair use existed largely in theory but not in practice," said IDA Board President--and award-winning filmmaker--Eddie Schmidt. "The DMCA forced filmmakers to attempt highly inferior technical methods to avoid breaking digital locks, or prohibited them from using such material at all. Decriminalizing the use of digital excerpts for documentary filmmaking purposes shows that the Copyright Office continues to understand the historical, cultural and journalistic implications of this provision in copyright law and its integral nature to freedom of expression."

 "This exemption will affect documentary filmmakers across our community," said Kartemquin Films Co-Founder and Artistic Director Gordon Quinn. "The DMCA had made it difficult for filmmakers to exercise their fair use rights. Today's ruling removes the unwarranted threat to the exercise of those essential rights--rights that we must be able to use if we are to continue to play a vital role in our democratic culture as reporters, critics, commentators and educators." 

 "This was an important victory for free expression and the essential role that documentary film plays in our democracy," said former USC Law student Chris Perez, a lawyer with Donaldson & Callif who also served on the pro bono legal team while at USC. "To make social, political or cultural critiques, filmmakers need to quote from copyrighted material such as motion pictures. It's well established that this type of use is permitted by the fair use doctrine in copyright law, but the DMCA was preventing it."  

Students from USC Intellectual Property and Technology Law Clinic, under the supervision of Professor Jack Lerner and in close collaboration with Michael Donaldson, are now turning to educational and training efforts designed to help documentary filmmakers understand how to use the exemption properly.


Here is a summary of the recommendations of the US Copyright Office:

The exact language is that if you are engaged in documentary filmmaking, you can copy a DVD without violating the DMCA as follows: "solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use..."

In order to qualify for the exemption you must meet all of the following criteria:

1.  You must have lawfully acquired a lawfully made DVD. In other words, don't buy a pirated copy. Don't steal a legitimate copy.

2.  You may only copy short portions of material for a "non-infringing use" which essentially translates into material in the public domain or material that you plan to use pursuant to the doctrine of fair use.

3.  You must be making the copy to use in a documentary.

4.  You want to be sure that you are well aware of public domain and fair use laws.

5.  You must only copy what you need, you cannot copy the entire DVD.

It is important that documentary filmmakers be very diligent in complying with the details of the regulation when they take advantage of the exemption, as the Copyright Office will be reviewing the issue anew in October 2012.

For the complete ruling and Determination of the Librarian of Congress, click here.