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Doc and Filmmaking Org Conclude "Fair Use" Testimony

By Michael Donaldson

On May 8, 2009, The Copyright Office completed testimonies in support of International Documentary Association’s (IDA) request to exempt documentary filmmakers from the criminal provisions of the Digital Millenium Copyright Act (DMCA). The request would allow IDA members to break the encryption on DVDs for the purpose of making fair use of material on the DVD in a specific documentary in which substantial production has taken place. IDA was represented by its former President, Michael C. Donaldson, and the USC Intellectual Property Legal Clinic.

Kartemquin Films Creative Director Gordon Quinn and his longtime colleague, Jim Morrissette, spoke on behalf of a coalition of filmmakers and film organizations that support the proposed exemption. The hearings took place over the course of four days. IDA’s discussion was held on May 7. The hearing was open to the press.

The MPAA used a camcorder to support their point that the exemption was not necessary. Jim Morrissette made an eloquent presentation, which demonstrated that only a direct copying from a DVD filled the need of the documentary filmmaker.

The Copyright Office posed questions challenging the MPAA and questions directed to filmmakers’ position. There will almost certainly be additional written questions issued by The Copyright Office.

Donaldson and the USC IP Clinic, led by Professor Jack Lerner, will be responsible for answering these questions. Donaldson pointed out that USC law students Chris Perez and Ashlee Lin did most of the work in drafting the necessary documentation and preparing the witnesses. After considering the responses of all the parties, The Copyright Office will make its recommendation in the Fall. The Library of Congress has, historically, accepted the recommendation of The Copyright Office. The decision is due October 28 but it can be extended, if necessary.

Documentary filmmakers depend on fair use and public domain works to craft their films and fulfill an important cultural role. Yet their ability to make these uses is being suppressed by the DMCA’s prohibition on circumvention.

The Digital Millennium Copyright Act of 1998 prohibits the circumvention of technological protection measures, including the encryption technology commonly employed on DVDs. Because of this prohibition, many documentary filmmakers who want to make fair use of material, or use public domain material, cannot do so because they can only obtain that material from DVDs—but they are concerned about whether circumventing this technology is illegal.

Every three years, the U.S. Copyright Office conducts a rulemaking process to assess whether this ban on circumvention interferes with no infringing uses of copyrighted materials. If the Copyright Office finds that legal uses of a particular class of works are being thwarted by the DMCA, it grants a three-year exemption from DMCA liability for that class of works. The exemption that this coalition of filmmakers and filmmaker groups seeks will restore their ability to make fair use and to use public domain works in the digital age.

The organizations and filmmakers who have joined together on this issue largely represent the cornerstones of the documentary filmmaking community in the U.S. Collectively, this group has garnered Peabody Awards, Academy Award nominations, 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.

The coalition includes:

International Documentary Association
Kartemquin Educational Films
Film Independent
Independent Feature Project
National Alliance for Media Arts and Culture
University Film and Video Association
Robert Bahar

Kirby Dick
Arthur Dong
Jeffrey Levy- Hinte
David Novack
Morgan Spurlock