2010 Copyright and Fair Dealing:
Guidelines for Documentary Filmmakers

DISCLAIMER: This report was published in 2010. Elements of this document may be out of date. 

Abstract

These Guidelines describe the application of fair dealing and copyright to the practices of documentary filmmakers in Canada. A recent survey of Canadian documentary filmmakers revealed that copyright clearance costs now make up to 27 percent of a film’s budget. High costs aside, the requirement that filmmakers secure licenses for every use of copyrighted content, no matter how fair or incidental, creates real problems for filmmakers. The irony is that many clearance costs are unnecessary. Much content used by documentary filmmakers qualifies as incidental uses or fair dealings that require no clearance under Canadian copyright law. Both the content and the quality of many Canadian documentary projects suffer needlessly under this “clearance culture”. The Supreme Court of Canada understands fair dealing and other defences to liability for copyright infringement as “users’ rights” that must be given a fair and balanced reading. The Supreme Court has also indicated that it will look to community practices for guidance on what is fair within a creative community, and for guidance as to the fairness of a system of practices. These Guidelines, based on law and guided by industry practice, answer the Supreme Court’s invitation to act as an aide for future courts called upon to interpret fair dealing in the documentary context.