Time is of the Essence: The Documentary/News Reporting Double Standard on Availability, Access to and Delivery of Information

At present, it has become increasingly difficult to determine between news and documentary programs. As Howard Knopf has pointed out, “[i]n many cases, documentaries become news because the content is first brought to light in the documentary.”

The defining difference between news reporting and documentary filmmaking is the aspect of time. News footage is, by definition, “urgent and time sensitive.” A news story is typically of much shorter duration than a documentary film, typically lasting two minutes instead of two hours. Not only is news coverage a quick response to events, but footage is also “usually…unrehearsed and unscripted.”

Why does the time frame matter? Simply for this reason: “[i]f something can be called ‘news’, it can benefit from a clear exception in the current legislation.” A perfect example of this is the treatment of information (considered to be newsworthy) when a celebrity passes away. For example, the death of Michael Jackson was broadcasted on the news the very same day, along with excerpts of his music videos and footage highlighting his infamous achievements. No clearance is necessary for this “news” inclusion of footage; however, if someone chooses to make a documentary about Michael Jackson with numerous clips, “industry practice would normally require ‘clearance’ for these clips.” The practice has emerged that “news footage seems to enjoy immunity from the ‘clearance culture’ to a significant extent. News footage that is simply broadcast and not turned into a film for theatrical or other channels of release rarely if ever requires clearance of incidental music or other included copyrighted material that would normally require (or at least is perceived to require) advance clearance if the film were to be considered a documentary.”

When it comes down to it, “the current copyright law contains a special fair dealing provision that permits use for ‘news reporting’ – provided that the ‘source’, and if given in the source, the name of the authors, performer, maker, or broadcasters…are mentioned.” In short, Documentarians argue that the same fair dealing exceptions that apply to news reporting should be available to documentary film makers. Indeed exceptions should be made that allow the Documentarians to extend “the ‘news’ provision…to include documentaries.” This is because very often documentaries use news footage or material from print media news; therefore, “[i]f the material was legal as “news” and did not require permission or payment, why should it not be legal as part of [a] documentary?” Furthermore, since documentarians have “fewer practical restraints on providing attribution and credits, it should not be difficult for them to meet these requirements on a ‘reasonable’ basis.”

A study commissioned by the Documentary Filmmakers organization recommends two primary amendments to copyright law: First, that, for the purposes of copyright law, “documentary” should be defined to “include any cinematographic work or sound recording, the purpose of which is to convey factual information and analysis relating to actual events or issues”. Second, that the existing fair dealing “news reporting” provisions should include a proviso that attribution credits be given only where “reasonable” in the circumstances and the exception should be explicitly extended to include documentaries.

Sources
DOC, Howard Knopf White Paper on "The Copyright Clearance Culture and Canadian Documentaries" HYPERLINK "http://docorg.ca/files/White Paper_HPK_Copyright&Documentaries.pdf" http://docorg.ca/files/White Paper_HPK_Copyright&Documentaries.pdf