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Documentary Filmmakers Win Exemption from Digital Millennium Copyright Act

July 28, 2010

Tags: fair use, documentary filmmakers

"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," according to the International Documentary Association. Entertainment attorney Michael Donaldson assembled a coalition of documentarians and filmmaker organizations, led by the IDA and the nonprofit Kartemquin Educational Films.
Excerpts from the IDA release:

"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."

"In a digital world without this exemption, fair use existed largely in theory but not in practice. The DMCA forced filmmakers to attempt highly inferior technical methods to avoid breaking digital locks, or prohibited them from using such material at all," said IDA Board President Eddie Schmidt, also an award-winning filmmaker.

"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 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."

For more details and a list of participants in the effort to get the Copyright Office to issue this exemption, read the full PRWeb release.

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 (Rulemaking on Exemptions from Prohibition on Circumvention of Technological Measures that Control Access to Copyrighted Works), click here.