Handbook of Ethnographic Documentary, Part 2 Rights.

Section 2 INTELLECTUAL PROPERTY RIGHTS

Chapter 1
PRINCIPLES
[This is a draft circulated to colleagues and friends for comment. Please do not cite
without permission. Paul Henley 2005]

Intellectual property rights, generally now referred to by the acronym IPR, are a very
contemporary preoccupation. New technology allows them to be tracked, bought and
sold with much greater ease than in the past and - not coincidentally perhaps - amongst
lawyers, there is currently a very active debate as to how these rights should be defined
and operationalized. For documentarists, on the other hand, they represent yet another
developing restraint on their activities. Also, as with the restraints considered in the
previous chapter, they represent something of a potential hazard too, for as those notices
at the end of a feature film always warn, a breach of IPR can result not merely in a civil
action initiated by an aggrieved rights owner, but even in a criminal prosecution. The
latter is only likely if the breach of IPR has been particularly flagrant and involves illicit
commercial exploitation of the claimants right. Even so, these potential penalties should
serve to concentrate the mind of documentarists on the necessity of understanding how
IPR could potentially impact on their work.
IPR issues are, however, famously complex. The most important vehicle of IPR law in
the UK is the Copyright Designs and Patents Act (CDPA) which was passed by
Parliament in 1988 and came into force on 1 August 1989.1 The original Act was
considered complex enough by legal experts but it has been further complexified by a
series of amendments arising both from related Acts of Parliament and various statutory
instruments clarifying ambiguities in the original Act or responding to EU directives.2
Although it is a general principle of the CDPA that its provisions should apply to works
1

The full text of the Act is available via the HMSO website at www.hmso.gov.uk/acts/acts1988.
The most important of these amendments for present purposes are the following three statutory
instruments: The Duration of Copyright and Rights in Performances Regulations 1995, Statutory
Instrument No. 3297 which came into force on 1 January 1996 (see
www.legislation.hmso.gov.uk/si/si1995); The Copyright and Related Rights Regulations 1996, Statutory
Instrument No. 2967, which came into force on 1 December 1996 (see
www.legislation.hmso.gov.uk/si/si1996) and The Copyright and Related Rights Regulations 2003,
Statutory Instrument No.2498, which came into force on 31 October 2003 (see
www.legislation.hmso.gov.uk/si/si2003). For a full list of amendments see the UK government Patent
Office website at www.patent.gov.uk/copy/legislation/copylaw.htm.
2

Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

still in copyright at the time that it came into force, this is qualified in various specific
ways in the detail of the Act. As a result, the provisions of the earlier 1956 Copyright
Act and even the 1911 Act continue to have some relevance.3
The issue becomes even more complex when an international dimension is introduced.
The general principle of IPR is recognised in legal jurisdictions around the world and
due to reciprocal arrangements between the countries that are signatories to the various
international conventions on copyright and performance rights, there has been a certain
degree of standardization. These countries include, notably, the US and the countries of
the European Economic Area (EEA).4 But even in those countries which are signatories
to the international conventions, the terms and conditions by which IPR is protected, and
the exceptions to this protection that are allowed vary considerably. On the other hand,
by virtue of these same international conventions, the use and reproduction in the UK of
the works of authors and performers from these other countries is generally taken to be
governed by UK law, though here too there are various exceptions and qualifications.5
It hardly needs saying that it is far beyond my remit here to give anything more than a
general overview of these complexities. As in the case of the previous two chapters,
apart from some passing comments in footnotes and elsewhere, I shall confine myself to
considering the law as it affects documentary-making in the UK. In this first chapter on
IPR, I will attempt to elucidate some general principles of copyright law that are of
particular relevance to documentarists whilst in the following chapter, I will look in
more specific detail at the practical implications for documentary-making of certain
particular categories of IPR.
Finally by way of introduction to these two chapters, I should perhaps remind the reader
that I am no lawyer and that the summaries and analyses offered in these chapters should
not therefore be considered in any sense to be an informed legal opinion. Readers
confronted by particular real-world IPR difficulties should make sure to consult an
appropriately qualified media lawyer or media rights expert.

See Robertson & Nicol 2002:289-90.

The EEA includes all the countries of the EU plus Norway, Iceland and Lichtenstein
5
See Cranwell 2002:43, 63- 64 and Weston 2005:2; also, for a more general account,
2001:4-23.
4

Bently & Sherman

Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

Types of IPR encountered in documentary film-making

There are many different types of IPR, of which copyright is by far the most important
for documentarists.6 This is the property right whereby original literary, dramatic,
musical and artistic works may be exploited in an exclusive manner by their authors. In
the context of copyright law, the category of author includes not just writers, but also,
amongst many others, music composers, film-makers, photographers, painters, graphic
artists, sculptors and architects. Of particular relevance to documentarists is the fact that
the category of author also includes all those whose speech has been recorded in some
material form, including on film and sound recordings. For, from the perspective
afforded by the CDPA, all speech acts recorded on film or on an audio track may be
construed as literary works with the copyright belonging to the speaker.7 However, this
general right of authors to exploit their works does not apply if they are employees
whose terms of employment specifically require them to produce such works. In this
case, the copyright belongs to their employers.8
As a general principle, copyright law distinguishes between these underlying or
authorial works and recordings in aural or visual media, such as sound-recordings
and television broadcasts. Photographs, interestingly, are not considered to be
recordings, but rather a form of artistic work. Films - which for the purposes of the
6

This chapter draws extensively on the work of the academic copyright specialists Norman Bently & Brad
Sherman (2001), but also on Roberston & Nicol 2002, Cranwell 2002, and other sources, as
acknowledged. Amongst these is the collection of articles on rights clearances edited by Deborah Wolfson
(1989) for the now-defunct Association of Independent Producers. Although somewhat dated, this
collection has the particular merit for present purposes of being written from the perspective of the user of
copyright works. This chapter has also greatly benefited from my discussions of copyright with Murray
Weston, director of the British Universities Film and Video Council (BUFVC) and from reading the
pamphlet on the subject that he has produced (Weston 2005). It has also benefited from the general
insights gained during my attendance at a seminar on copyright offered by Bernie Attwell and Alma Hales
of the Open University rights department in February 2005, under the auspices of the BUFVC. Whilst I
am grateful to all these interlocutors for these insights, the construction that I have put on them is
obviously entirely my own responsibility.
7
See Bently & Sherman 2001: 53
8
Employers can only claim the copyright in a work if it is very specifically part of an employees contract
to produce such a work. Cranwell gives the hypothetical example of a computer programmer who also
writes novels: whilst copyright to all the computer programmes that he devises would belong to his
employer, copyright in his novels would belong to him (2002:52). An important additional point is that the
place and time at which the computer programmer devises a programme would be irrelevant from the
point of view of copyright law: even if he worked it out in his own time whilst sitting at home at the weekend, the copyright would still belong to his employer. This point is of particular relevance to academic
film-makers employed by universities. In a strict interpretation of the law, copyright in all academic works
produced by academics belongs to the universities that employ them. In practice, most universities choose
not to enforce this right as far as written works are concerned, though debatably - they might be entitled
to do so. But universities may well chose, and some certainly do, to claim copyright over other types of
work produced by their employees, including films. See Weston 2005:4, also Bently & Sherman
2001:119-120

Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

CDPA are defined as registrations on any medium from which a moving image may by
any means be produced - have an ambiguous status: whilst they may generally be
referred to as recordings in the Act, for some purposes they are treated as if they were
authorial works. This distinction underpinning the provisions of the CDPA reflects a
more general distinction in the copyright literature between rights in authorial works
and what are variously known as entrepreneurial, related or neighbouring rights.
The latter are generally associated with the technical and organizational skills or
resources that are deployed in the use or development of creative authorial rights and
they are typically assigned to the person or body that was financially or logistically
responsible for producing the material The ambiguity of the status of films in the CDPA
is therefore understandable, since they often require a combination of both creative
authorial skills and technical or financial resources.9
A very elementary principle of copyright law is that there is a fundamental difference
between ownership of the copyright in a work and the ownership of a work as physical
object. The latter is sometimes referred to in the literature as a chattel and it carries
with it merely a personal property right that entails no necessary right to make a copy of
the work. So if documentarists wish to make a further copy of a work or a recording
which they happen to have in their possession and they aim to do so through the act of
incorporating a whole or part of it into a film, they are legally obliged to seek the
consent of the persons who own the copyright or their representatives. This consent may
be given freely, or it may be given only upon payment of a licence fee and, at the same
time, be made subject to a number of other terms and conditions. In the film-making
world generally, this process of obtaining IPR consents and licences is often referred to
as clearing the rights.
Strictly speaking, the rights of performers, which are also potentially of relevance to
documentarists, constitute a different type of IPR altogether in legal terms, even though
they may often be subsumed for convenience under the general heading of copyright in
the literature. In the CDPA they are considered in their own discrete Part of the Act.10
Essentially these rights permit performers to control not only whether or not their
performances are recorded in the first place, but also, following a l996 amendment of the
Act, the right to distribute copies of that recording, be it through sale or rental.11

See Bently & Sherman 2001:28-29, 51-52.

This is Part II, ss.180-188.
11
Prior to the CDPA, performers were not protected by copyright law as such. Initially this was because
performances were considered too ephemeral to qualify for protection, but even when modern recording
technology allowed performances to be permanently fixed from the 1920s onwards, they were widely seen
to be merely translations or interpretations of the underlying works. Performers rights were not
recognized at an international level until 1961, but it took almost another three decades before they were
recognized in the UK. See Bently & Sherman 2001:294-298
10

Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

There are also many other types of IPR, relating to such matters as patents for
inventions, trademarks and product designs, as well as a remarkably mixed bag of others
things such as semi-conductor topographies, plant varieties and geographical indications
of origin.12 So far, however, the owners of these other forms of IPR have not yet found a
viable way of requiring documentarists to purchase a licence from them should the
documentarists incorporate some reference in their films to the matters or objects over
which they hold a right. But as we shall see in Chapter 4 of this Part, when we shall
consider the appearance of company logos in documentary films, the first signs are
already there that this could become a further headache for documentarists in the future.

General principles
A number of other long-established principles underpin all aspects of copyright law in
the UK, including the CDPA. Perhaps the most fundamental of these is that it is not
possible to establish copyright purely in an idea: it has to be written down or recorded in
some form.13 Similarly, it is not possible to establish copyright over information as such,
though copyright can subsist in the particular way in which a given body of information
is expressed or presented.14 However, in UK law (though not necessarily elsewhere), the
act of making a material and enduring recording is all that is necessary for the copyright
to be created: it is not necessary to send a copy of the work to some institution and
register it there. Nor is it necessary to append the which is the international copyright
symbol, even if, from the point of view of the rights owner, it is generally advisable to
do so.15 Whilst this automatic principle has obvious advantages for authors, the
downside for users is that in case of doubt, there is no institution or official directory to
go to in order to establish whether a given work actually is in copyright and if so, who
owns it.
An important related principle, and one of particular relevance to documentarists, is that
although an idea or performance may be copyrighted by the act of being made material
in a recording, the owner of the recording, who may be different from the original author
or performer, has an independent copyright over the recording. The owner of the
recording right may not be able to use the recording against the wishes of the original
author or performer, but equally the author or performer cannot normally use the
recording without the consent of the owner of the recording right.
12

See www.intellectual-property.gov.uk
CDPA s.3. The process of making material is often referred to in the literature as fixation
14
See Cranwell 2002:43. As a result of this limitation, there can be no copyright on the content of news
reporting. But if a publication draws exclusively on a previous work to reproduce a particular body of
information and involves no original research, it may be considered to have infringed copyright, even if
the language has been changed and the information has been presented in a different order. See Robertson
& Nicol 2002:307.
15
Cranwell 2002: 44, Weston 2005:3-4.
13

Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

In order to qualify for copyright protection, a work must be an original creation of the
author to which he or she has dedicated what is sometimes quaintly referred to in the
legal literature as sweat of the brow. This quality has also been more robustly
described as variously involving skill, labour or judgement, selection, judgement and
experience and even labour, skill and capital but the most appropriate way to define
originality remains a matter of contention amongst copyright specialists.16 However,
aesthetic considerations such as beauty, complexity or sophistication are entirely
irrelevant, though transience may be taken into account: jokes, for example, are
considered too ephemeral to attract copyright, even though a cartoon that embodies a
joke is entitled to copyright as an artistic work.17
An exact copy of an existing work is not protected but an identical recording of the same
thing in the real world would be, since recordings are not required to be original insofar
as their subject-matter is concerned. So if two documentarists went out and shot the
same establishing shot of a building from the same angle and at the same time of day,
both would be protected by copyright. But if one merely made a video-transfer of the
others shot and used it in a film, then not only would he or she would be infringing the
copyright of the other documentarist, but his or her copy would not itself be protected.18

Infringement and the test of substantiality

In order for a copyright to be infringed, it is not necessary for a work to be copied either
exactly or in its entirety. All that is necessary is for the reproduction to be of any
substantial part.19 The Act itself does not give specific examples of what constitutes a
substantial part, albeit with one notable exception which could be of particular
relevance to documentarists. This is that the use without consent of any single image, or
even part of a single image from a film or television broadcast would automatically
16

Robertson & Nicol 2002:293. See also Bently & Sherman (2001:80-98) who contend that It is very
difficult if not impossible to state with any precision what copyright law means when it demands that
works be original(ibid: 81). Precision becomes even more difficult when a cross-cultural dimension is
introduced (ibid.:93)
17
Robertson & Nicol comment Other cartoonists can raise the same laugh so long as their drawings are
different (2002:308).
18
See Cranwell 2002:47 and Bently & Sherman 2001:98-99. However the latter (ibid .:164) also report a
1977 case involving an artist whose commissioners were sued because she painted some well-known
scenes on the basis of copyright postcards and other paintings rather than going to the locations herself.
Although the judge in this case did not reach a final conclusion on copyright infringement, he did
acknowledge that copyright could subsist in such matters as the choice of viewpoint, the exact balance of
foreground features or features in the middle ground and features in the far ground, the figures which are
introduced. But given the status of film in copyright law as a recording, it seems unlikely that such a
claim could be upheld with regard to film images of the real world since rights in recordings are
generally much more narrowly defined than rights in authorial works.
19
CDPA s.16(3)

Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

constitute an infringement.20 But otherwise, the determination of substantiality would be

a matter to be decided by the courts on the facts of each particular case.
Previous cases, as reviewed by the copyright law specialists Norman Bently and Brad
Sherman, indicate that a range of different criteria may be brought to bear on the
determination of substantiality.21 One of the most important of these is that whatever the
normal connotations of the term, substantiality is not necessarily to be determined on
the basis of any straightforward quantitative calculation: the quality of the part copied
rather than quantity is often the most significant factor, though if the part copied
represents are very large proportion this may in itself be sufficient to represent an
infringement. But, conversely, even a very small part may represent an infringement if it
is significant enough, as is indeed suggested by the sole example provided by the CDPA
concerning the use of a single image from a film or television broadcast.22
More generally, previous cases indicate that the determination of the significance of an
extracted part is to be assessed, firstly, in relation to the work from which it is taken
rather than in relation to the work in which it is used. This suggests that if a few bars of
music featured only fleetingly in a documentary and in a shot of no great significance for example, in the background of an establishing shot their inclusion could still be
considered an infringement if they represented a particularly significant passage in that
particular musical piece, such as the chorus. On the other hand, as Bently and Sherman
put it, the criteria by which the importance of a part is determined are restricted to those
that are relevant to the nature of the work in question. This restriction derives, they
explain, from the very general principle that copyright protects the relevant skill and
labour expended by the author in creating the work (the emphasis on relevant is
theirs).23
On these grounds, it could be argued that if the music in the hypothetical example just
described were merely part of the general acoustic environment of the location
represented in the shot and for the purposes of the film, fulfilled none of the functions
conventionally associated with music, i.e in providing some sort of entertainment or
20

CDPA s. 17(4). The text of this section actually refers to making a photograph of any image forming
part of the film, broadcast or cable programme but a frame grab of a single image in a video editing
suite would certainly constitute a photograph within the meaning given to this term by the Act in section
4(2).
21
See Bently & Sherman 2001:174-181.
22
In order to circumvent these uncertainties without recourse to the courts, certain collective bodies of
rights owners have agreed certain norms which users can follow without engaging in time-consuming
correspondence in seeking consent or risking a law suit. The Publishers Association, for example, has
agreed that it is permissible for users to publish extracts of 400 words of unbroken text and 800 words of
broken text without formal consent.(Attwell and Hales, pers. comm. 2005). Unfortunately, no such norms
exist in relation to the making of documentaries, though it would probably be in the interests of both rights
owners and users if such norms were developed.
23
Bently & Sherman 2001:176-7.

Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

edification to the viewer of the documentary, then this particular use of the music would
not be significant enough to pass the test of substantiality. From this it would follow that
the inclusion of this music in the documentary would not represent an infringement,
even if this were done without consent. However, whatever the hypothetical arguments,
in practice the test of substantiality is determined on a case by case basis which means
that there will always be a certain degree of uncertainty involved.24
This is compounded in the case of music if a sound recording is involved since this adds
a further layer of complication. Bently and Sherman report that the courts have yet to
address the question of how the test of substantiality is to be applied to sound recordings
and other entrepreneurial works such as television broadcasts and typographical
arrangements. They argue that whilst it might be possible to distinguish one part of the
underlying musical work from another on grounds of relative significance, there are
generally no grounds for doing so with respect to a recording considered purely as a
recording. Thus while a three-second sample that contains the hook of a song may be an
important part of a musical work, it does not necessarily follow from this that the way
the three seconds were recorded will be any different from the way the rest of the song
was recorded. From this they deduce that while there may be some exceptions, it will
usually not be possible to rely on significance in any test of substantiality regarding
recordings: instead it will be necessary to fall back on quantitative measures of what has
been used. However, as they themselves report, what little precedence there is to be
gleaned from actual cases, though admittedly relating to typographical works rather than
sound recordings, suggests that in practice the courts will take into account issues of
significance in the underlying content in applying substantiality tests to the use of
extracts from entrepreneurial works.25
Finally on the subject of infringement, it is important for documentarists to be aware that
copyright law recognizes various different modes in which it can take place. Primary
infringement is committed by those who are directly involved in the reproduction of a
copyright work, recording or performance, whilst those who facilitate the illegal
reproduction or distribution of copyright material may be involved in secondary
infringement. Thus a documentary director who, without the appropriate consent,
includes copyright material in the course of editing his or her film would be guilty of
primary infringement, whereas the distributor or broadcaster of the film, or a body that
provided the location and/or equipment for screening the film publicly could be
committing a secondary infringement.
It is often assumed that copying houses or other audiovisual facilities, such as university
24

The media lawyer Rhonda Baker (1989:21) warns users of copyright works that Testing the meaning of
a substantial part of a work of copyright in law often depends on the personal caprice of a judge before
whom the case is heard There is no logic to it. In view of this fact, she advises users that It is
therefore always advisable to obtain consent.
25
Bently & Sherman 2001:179-180.

Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

audio-visual centres, are also at risk of committing a secondary infringement simply by

providing equipment that allows copyright material to be copied. But Bently and
Sherman point out that the relevant section of the Act specifies that in order for this to
be the case, it is necessary for the equipment used in copying to be specifically
designed or adapted for making copies of a particular work. Such would be the case, if
one were to make a template or mould for reproducing a given copyright work. But they
stress that a facilities house which merely provided a generic copying facility would not
be guilty of a secondary infringement.26 Another important limitation on the
circumstances of secondary infringement is that whereas primary infringement is
actionable regardless of the intentions of the person doing the infringing, in the case of
secondary infringement, liability is dependent on the defendant knowing or having
reason to believe that the activities involved were illegal.27
Both these forms of infringement should, in turn, be distinguished from third-party
infringement. This refers to a situation in which the reproduction of a work also involves
the reproduction of another copyright work contained within it. This could arise, for
example, when a documentarist edits a piece of archival footage into a testimonial film.
Although he or she may have cleared the rights on the archival film, if that film shows a
copyright graphic work, or a performance for which the rights have not been cleared,
then a case of third-party infringement will have occurred.

Authorship, ownership and duration

As a property right, copyright can be assigned to third parties by being bought and sold,
even leased and mortgaged, or simply by being given away. It is even possible to sell
copyright futures. The bundle of rights that pertain to a particular work may also be
subdivided on the basis of times, territories and classes of conduct and then assigned to
a number of different third parties, e.g. the right to reproduce and distribute a film may
be given away to a variety of assignees on the basis of certain specified periods only, for
certain specified territories only and in certain specified media only. Rights in authorial
works and certain performers rights though importantly not rights in recordings - may
even be transferred from one generation to the next by means of a will.28
For legal purposes, an assignment of rights should be clearly distinguished from a
licence to use a work. Whereas the latter typically applies only to a temporary granting
of permission to use a copyright work for some very particular and short-term purpose,
an assignment is much more enduring if not actually permanent, and usually more
26

CDPA s.24, Bently & Sherman 2001:186-187.

Bently & Sherman 2001:155, 187-188.
28
CDPA, ss.90-93. If a rights owner dies without assigning his or her rights in a will, the rules that are
applied to the transfer of all other properties are also applied to any copyrights that the deceased might
have held. See Bently & Sherman 2001:254-261.
27

10 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

comprehensive, covering a broad range if not all rights in the work.29 But whatever the
precise conditions, whereas a licence to use a work may be given in a purely verbal form
however inadvisable this may be - in order for an assignment to be legally binding, it
has to be in writing, though this can be no more than an invoice or a receipt.30
Provided this condition is fulfilled, the copyright in a work can easily and rapidly be
separated or transferred far away from the original author: a particularly celebrated
example are the rights to most of the early works of John Lennon and Paul McCartney
which are now owned by the singer Michael Jackson. Conversely, a company may
continue to exploit the copyright created by one its employees, leasing it out or
eventually selling the right many years after the employee has left the company. As a
result, tracing rights ownership can be very complex since the original author may well
not be the current of owner of a right.31
On the other hand, although it may be a property right, copyright in the UK is not
perpetual. The current general principle is that copyright in an authorial work lasts for
70 years after the end of the calendar year in which the death of the author occurred, or
if it is a genuinely joint work, the end of the calendar year in which the death of the last
of the authors to die occurred.32 This period is sometimes referred to by the shorthand
acronym p.m.a., which derives from post mortem auctoris, a Latin phrase meaning
after the death of the author.33 Prior to 1996, this period was only 50 years but it was
then increased to 70 years in order to comply with an EU directive that applied to all
member states of the EEA.34 Many of the complications of current copyright legislation
derive from the difficulties of reconciling these new durations with the old since they
had the effect of bringing certain works back into copyright, some of which were
already being exploited commercially on the assumption that they were copyright-free.
This duration of 70 years p.m.a. does not necessarily apply to copyrights works outside
the EEA but it does apply, notably, in the US.35
29

See Alberstat 2002:83-84

Bently & Sherman 2001:255
31
Weston (2005:4) goes so far as to say that the original author is very rarely the current owner of a
copyright.
32
CDPA s.12 as amended by the 1995 Regulations, s.5. See
www.legislation.hmso.gov.uk/si/si1995/Uksi_19953297_en_3.htm#mdiv5
33
See Sutton 2004. who reports that in the UK, the idea of post mortem copyright protection was first
introduced in the Literary Copyright Act of 1842 when it established a copyright period of 42 years from
the date of first publication or 7 years after the author's death. This period p.m.a. was then extended to 50
years by the 1911 Act and this was retained until the most recent extension to 70 years. The same source
comments that many think that copyright duration is now absurdly long. See also Bently & Sherman
2001: 146.
34
These amendments to the duration of copyright were the principal business of Statutory Instrument
No.3297, The Duration of Copyright and Rights in Performances Regulations 1995, which came into
force on 1 January 1996.
35
However these terms only apply to works published or registered since 1 January1978. The position
with works published before that date is rather more complicated. See the US Copyright Office website
30

11 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

So even though copyright in a work may not be perpetual, it can often endure for over a
century when it is calculated in relation to an authors longevity since, obviously, this
circumstance will obtain in all cases in which an author creates a work more than 30
years before his or her death. But given that there is no necessary connection between
rights ownership and the authorship of a work, particularly if the work was created some
time ago, it is perfectly commonplace for the copyright status of a work to be dependent
on the longevity of an author with whom the rights owner no longer has any direct
contact or even knowledge. In the absence of any formal process of copyright
registration, it may be difficult either for the rights owner or a potential user of the work
to establish exactly when the author died, if indeed he or she has done, and thus how
valid the rights owners claim to the copyright actually is. This is particularly an issue
for documentarists who might wish to use archival photographs or films by little-known
authors.
It is also important to be aware that even after the adoption of EU norms in the UK, the
standard durational term of 70 years p.m.a. does not apply to all copyright material.
Crown copyright, which belongs to the Queen and pertains to all works produced by an
officer or servant of the Crown, and even to any produced by the Queen herself,
continues to extend for a mammoth 125 years from the end of the calendar year in which
a work was made. Unless, that is, the work concerned has been released on a
commercial basis, in which case copyright is restricted to 50 years if this is shorter.36
Perhaps of more immediate significance to documentarists is the fact that, in the UK,
irrespective of the adoption of EU norms regarding authorial works, performers rights
and copyright in recordings of certain kinds continue to have a duration of only 50 years
after the end of the calendar year of first performance or release. This applies
particularly to sound recordings and television broadcasts, and in the form in which the
CDPA was enacted in 1988, it also applied to films. But, in a subsequent amendment in
1995, the copyright duration of films was made dependent not upon the date of release
but upon the longevity of certain specified principal authors, plus the now-standard 70
years p.m.a.37 In effect then, these new rules extended the copyright duration of most
films by a vast amount. However these general rules continue to be qualified in certain
ways which could be particularly pertinent to documentary-makers. But these are
complex to present and their significance is debatable, so I shall defer further
consideration of them until the following chapter.
item Copyright Basics at www.copyright.gov/circs/. Amongst the countries where the post-mortem term
remains shorter is Australia, where it continues to be life-plus-50-years (Bently & Sherman 2001:148)
36
See CDPA s.163, Robertson & Nicol 2002:305, Bently & Sherman 2001:120.
37
See CDPA ss.13, 14 and 191, as amended respectively by the 1995 Regulations, regs.6, 7, 9 & 10 and
the 2003 Regulations, reg.29. See also Bently & Sherman 2001:152, Robertson & Nicol 2002:304-305.
Cranwell 2002:59 suggests that the duration of copyright in sound recordings and television broadcasts is
70 years, but this would appear to be an error.

12 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

Moral Rights
Prior to the CDPA, copyright had been seen purely as a property right in English law.
But the Act broke with this tradition by associating the European notion of moral
rights with authorship.38 The Act identifies a number of moral rights, of which the most
important for present purposes are the right of paternity and the right of integrity. The
former consists essentially of the right to be acknowledged as the author of a work,
whilst the latter consists of the right not to have ones work treated in a derogatory
manner, thought what exactly the term derogatory means in this context is not clearly
defined.
The requirements of the paternity right are unlikely to be problematic for documentarists
since, under normal circumstances, they will generally have no difficulty in
acknowledging the authors of any works they refer to, be it in an identificatory subtitle
or a passage of voice-over at the appropriate moment, or in a end-credit. The right is also
restricted in a number of crucial ways: for example, it does not apply when a work is
referred to for the purposes of reporting on current events by means of a sound
recording, film or television programme. Nor does it apply if the work is included
incidentally, be it in a work or in a recording.39 These exclusions would account for
most, if not all, circumstances in which documentarists might have some practical or
stylistic difficulty in giving the appropriate acknowledgement.
The right of integrity, on the other hand, is potentially more problematic for
documentarists since the derogatory treatment against which it provides protection
could be considered to include any modification of a work for film-editing purposes. In
this connection, the CDPA does provide certain exceptions that could be useful to a
film-maker: for example, here too the right does not apply in relation to any work made
for the purpose of reporting current events. The Act even specifically allows editorial
modifications under certain conditions, though for textual publication rather than
publication as part of a film.40 But to be entirely on the safe side, any risk of
infringement can be completely nullified by asking rights owners to waive their moral
rights by means of a written release form. This has the additional marginal benefit of
providing protection against any residual risk of infringing the paternity right. The
waiving of moral rights is not permitted in many European countries, but it is

38

In effect, moral rights represent an attempt to accommodate the French concept of droits dauteur with
the English property-based system. As explained by Winston (2000:76-77), in the French system, an
authors rights as author have traditionally been clearly distinguished from the economic rights associated
with authorship. This distinction was internationalised as long ago as 1928 through its incorporation in the
2nd Berne Copyright Convention.
39
CDPA, s.79 (4)
40
CDPA, s.81

13 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

commonplace in the UK. As a result, in the view of the media law specialist Mark
Cranwell, moral rights have little relevance or effect in English law.41
One further wrinkle on this right which is of potential relevance to documentarist is that
the CDPA allows specifically for the right of integrity of employees to be over-ruled by
the owner of the rights in any works they create, which in most cases will be their
employer. So if a documentarist is making films whilst employed by a production
company, the executive producer of the company is perfectly entitled to mutitlate his or
her work without fearing any infringement of integrity rights!42

Exceptions
The CDPA lays down a number of conditions or circumstances under which there is no
infringement of copyright, nor of performance rights. The first and most obvious
circumstance is if the rights owner gives consent. The Act does not generally specify
what form this consent should take, though clearly, as in the case of confidence claims
discussed in the previous chapter, if a documentarist has this consent in a written form
with a suitably appended signature, it will provide better protection in the event of
subsequent litigation.43 In many instances, as I noted at the beginning of the chapter, the
rights owner will anyway insist on a formal licence document, in which consent is given
subject to certain conditions and in exchange for a fee. But even when there is no such
document, it may be advisable for documentarists to protect themselves against
unfortunate eventualities by getting a written consent. So here then is another rationale
for the oft-resented release form.
The CDPA also makes allowance for certain exceptional circumstances in which the
clearance of copyright has not been possible for reasons that are beyond the control of
the user of the material. In certain very restricted circumstances, users may be able to
defend themselves simply by saying that they did not know that copyright subsisted in a
particular work. But Robertson and Nicol warn that this is a narrow exception. An
experienced film-maker would not normally be able to make this claim, since everyone
is presumed to know the law, and a simple mistake would not be taken into account. Nor
would it be an acceptable defence unless extensive enquiries had been made without
throwing up any evidence that copyright existed in the disputed work. The same authors
conclude that because of all these restrictions, this defence can only be usefully offered

41

Cranwell 2002:61, Alberstat 2002:82. See also Robertson & Nicol 2002:332-334 and the relevant
sections of the CDPA, namely ss.77-89.
42
CDPA s.82. See also Bentley & Sherman 2001:250
43
Weston (2005:6) cites the old film producers adage here: A verbal agreement is not worth the paper it
is written on.

14 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

where the copied work is old or originates in a country where it is not reasonably
possible to discover whether the necessary conditions for copyright are fulfilled.44
A probably more useful defence is allowed by the Act in circumstances in which the
user knows that copyright is likely to subsist in a work but has not been able by
reasonable inquiry to ascertain the identity of an author. The same applies if it is
reasonable to assume that the copyright has expired by virtue of more than 70 years
having passed since the author died.45 These provisions could be particularly useful, for
example, to documentarists wishing to use old archival film of uncertain provenance.
But it is important for documentarists to bear in mind in cases like this that even though
this defence may be allowable, there is always the possibility that a rights owner may
subsequently come to light. Although a film production company may have disappeared
many years ago, any copyright that it owned could have been sold off by a liquidator to
another, still extant company, along with all the defunct companys other assets.
Similarly, even when a film was made by some long deceased independent film-maker,
it is possible that a long-lost relative may emerge, perhaps encouraged by an eagle-eyed
lawyer, to make a claim.
Under these circumstances, it is important for documentarists to be able to show that
their attempts to trace the rights owners have indeed been duly diligent. For this reason,
when they are unable to establish the authorship of a work that they want to use, it is
advisable to keep a well-documented record of all the enquiries that they have made.
These enquiries should normally include approaches to the various agencies that operate
on behalf of rights owners, most notably with respect to music, and to any companies or
agents that might have produced the work.46 It should also include a trawl of the
internet, taking advantage of the many sites that can now help in the tracing of rights
owners.47 Finally, even if one has been duly diligent and can demonstrate this to have
been the case, this does not absolve one of the obligation to come to some agreement
with any legitimate rights owner who might emerge.[***check***] If this proves
impossible, the only solution may be to take the issue to the courts, but this is unlikely to
44

Robertson & Nicol 2002:341n. See CDPA, s.97(1).

CDPA, s.57
46
I discuss music rights collecting agencies such as the MCPS and others at considerable length in the
following chapter.
47
The UK intellectual property agency suggests that one might go further: You may wish to set aside an
appropriate fee for the use of the work in a special bank account, and, when you use the work, apply a
statement indicating that you have tried to trace the rightsholder, but have failed to do so, and then invite
any legitimate rightsholder to contact you. See
www.intellectual-property.gov.uk/std/faq/copyright/find_owner.htm. In the feature film industry, at the
beginning of a production, it is a common practice to set up a fund known as an escrow which is
intended specifically to meet unexpected future eventualities (Murray Weston, pers.comm. 2005).
However, it would probably be beyond the resources of most documentary film-makers to establish an
escrow to meet the claims of unidentified rights owners.
45

15 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

be in the interests of either party since the sums involved in any reparation are likely to
be very much lower than the legal fees.
The CDPA also allows, in section 31, that as with the moral right of paternity, so more
generally, copyright in a work is not infringed in the case of incidental inclusion in an
artistic work, sound recording, film or broadcast. Obviously, in actual practice, the
definition of what constitutes incidental inclusion could be open to a range of
interpretations. But in a relatively recent case, dating from 1998 and involving a graphic
work shown in a television advertisement, it was established that a use was incidental if
its inclusion was casual, inessential, subordinate, or merely background. In essence,
Bently and Sherman comment. the judge suggested that a copyright work would only
be incidentally included if it could be removed from the alleged infringing work without
effecting its structure or essence.48 But even within these restrictions, this provision
should be sufficient to cover many different circumstances in which documentarists
unintentionally capture some copyright work in the background of a shot.
However this exception is specifically qualified with respect to musical works in
section 31(c) of the Act. This states that a work of this kind shall not be regarded as
incidentally included in another work if it is deliberately included. Quite what this
statement means is not explained in the Act itself and it too is clearly open to a range of
interpretations. As I shall examine at greater length in the following chapter, this
subsection is interpreted very broadly by music rights owners, giving rise to particularly
vexing problems for documentarists.

Fair dealing and other defences

There are also circumstances in which the CDPA recognizes that there is no
infringement even when the copyrighted material is used quite purposively and without
any effort to gain the prior consent of the owner even when it is quite clear who the
owner might be. At a general level, these concessions represent an implicit recognition
in the Act that the legitimate expectation of rights owners to derive exclusive benefit
from their creative works has to be balanced in some degree against freedom of
expression considerations, particularly the need to protect the capability of the media to
deal with matters of public interest.
This is the underlying rationale for permitting, without risk of infringement, what is
known as fair dealing. This concept can be applied to any form of copyright work or to
performances. It can also be applied to sound recordings, films and television broadcast
but under certain rather more restricted conditions. However, there is no precise
definition of what is meant by this term in the Act, nor any reference to how much of a
48

Bently & Sherman 2001: 208

16 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

work may be dealt with, nor to how frequently or at what length it may be dealt with and
still constitute fair dealing. What the Act does do is envisage that fair dealing will take
place for a number of specified purposes and require that the dealing be fair in relation
to those purposes. One of these is when a work is referred to or reproduced for the
purpose of reporting current events. Another is when a work is referred to or
reproduced for the purposes of criticism or review. 49
Certain further conditions are stipulated in the Act itself. Some are very general, such as
the requirements that the work must have been made available to the public by the
author and that there must be due acknowledgement of the authorship of a work. Other
conditions are more specific: photographs are specifically excluded from fair dealing for
the purpose of reporting current events, since otherwise news photographers would not
be able to charge for their work. On the other hand, the general obligation to give due
acknowledgement is not absolutely required in the reporting of current events by means
of a sound recording, film or broadcast in recognition of the fact that this may be
impossible for reasons of practicality or otherwise.50
Whether either of these forms of fair dealing could be invoked as a legal defence in
relation to a documentary incorporating copyright works might be considered a moot
point. There is, first of all, the general question of whether either of these fair dealing
defences, which are clearly envisaged as being primarily applicable to works being
distributed through the mass media, should also be available to documentaries published
to more specialised audiences. But for the reasons advanced at the head of the first
chapter of this Part, I would argue that there are no just grounds for denying specialised
publications the protection of the law any more than there are grounds for absolving
them of the penalties of the law. If this is so, then there are certainly some
documentaries that could be interpreted as involving a form of criticism or review
whilst many could be quite legitimately construed, without any special pleading, as
being concerned with reporting current events, even if they are not exactly current
affairs news reportage in the strict sense. But in the last analysis, in the absence of
precise definitions in the Act itself, whether fair dealing would be a legally tenable
defence in relation to a documentary film would undoubtedly depend to a large degree
on the facts of each particular case and the interpretation that a court decides to put upon
them.
In determining whether a fair dealing defence is tenable, the courts will be concerned to
establish whether the dealing was indeed fair given its the particular purposes. Bently
and Sherman identify a number of possibly relevant criteria: if the material has
previously been published, was legally obtained and is used only briefly for a
49

Bently & Sherman (2001:194) contrast this restricted UK approach to fair dealing with the notion of
fair use in the US legal system whereby a use can be determined to be fair by a much wider set of
criteria.
50
See CDPA ss.29-30, 189 & Schedule 2, 2(1), all as modified by the 2003 Regulations, S.I. 2498, reg.10

17 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

disinterested purpose, the courts would be much more disposed to accept that the dealing
had been fair than in circumstances in which the material was unpublished, had been
illegally obtained and is used to an excessive degree, particularly if this were to result in
considerable material gain for the user in a way that might prejudice the material
interests of the owner.51
The courts might also ask whether the same purpose could have been achieved by other
means that did not involve an infringement of copyright. A case cited by Bently and
Sherman dating from 2000 which has particular relevance for documentarists in this last
regard involved the publication in the printed media of photographs of Dodi Fayed and
Diana, Princess of Wales which had been grabbed from a private CCTV film. The courts
ruled that the copyright in the film had been infringed because the evidence that the
newspaper concerned wished to present, namely that Dodi and Diana had been present at
a particular private residence at a particular time, thereby proving the falsity of certain
statements by Dodis father, Mohammed Al Fayed, could equally well have been
presented by means of the written word.52 In light of this precedent, there may be
occasions when it could be advisable for documentarists to present evidence via a voiceover comment rather than through cutting in copyright visual material into their films.
But even before deciding whether a particular example of dealing could be considered
fair, the courts will be concerned to establish whether it could construed as fulfilling
one of the purposes identified by the CDPA as allowable without risk of infringement.
The various cases reviewed by Robertson and Nicol (some of which date from before
the Act) indicate that as a general rule, the courts in the UK are unwilling to allow
copyright considerations to inhibit freedom of expression and, on these grounds, have
been prepared to interpret both criticism or review and reporting on current events in
the broadest sense: in 1999, in a celebrated test case, the Court of Appeal concluded that
both were expressions of wide and indefinite scope, and continued, Any attempt to
plot their precise boundaries is doomed to failure. They are expressions which should be
construed liberally.53
However, in a more substantive sense, none of the cases described by Robertson and
Nicol provides any direct parallel with the kind of observational or testimonial
documentary-making generally advocated in this book. As far as reporting on current
events is concerned, their cases relate in the most part to publications in the printed
media and concern the activities of well-known public figures. These have yet to
establish clearly what exactly is allowable as a current event, though in one of the more
recent cases, dating from 2001, the court said that the fair dealing defence was intended

51

Bently & Sherman 2001:195-197.

Bently & Sherman 2001:197-198
53
Robertson & Nicol 2002:318. The case in question was Newspaper Licensing Agency v. Marks &
Spencer (2000). See also Bently & Sherman 2001:202n.
52

18 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

to protect the media when publishing matters of current concern to the public and as
such could be applied even when the events themselves might not be recent in time.54
Although the matter of contemporaneity could represent a problem for a testimonial
talking heads film, it should not be so for an observational documentary since the
subject matter is typically based on following live action and would therefore
necessarily be current. Possibly more problematic would be the nature of the event:
some recent cases reported by Bently and Sherman suggest that if the matters concerned
are trivial or ephemeral, involving such things as comparisons of the relative merits of
various food or fashion products, then they would not be considered as events for the
purposes of this defence. 55
Matters which are currently of interest in the national press do not necessarily mean that
they would be considered an event for these purposes either, though press coverage
can turn a matter which might otherwise be considered trivial into an event. A widelycited example in which this defence was used successfully did indeed involve a
documentary, albeit one of a rather different kind, seemingly, than those that form the
central subject matter of this book. This was an investigative documentary about
cheque-book journalism, made for UK television, which incorporated 30 seconds of a
film by a German television company. When the German company sued, the English
court upheld the defence on the grounds that the extract from the film had been
relatively short and was directly relevant to the report on cheque-book journalism that
the UK programme was making.56
In general, observational documentaries tend to deal with subjects that go beyond the
trivial, whilst if the size of the audience is irrelevant in determining whether freedom of
expression considerations should override the property interests of IPR owners, as I have
argued above, then the fact that most observational documentaries concern subjects
whose activities are not of interest to a great number of people should also be
irrelevant.57 But whether the balance of these various arguments would convince a court
that a fair dealing defence for the purposes of reporting current events would be
appropriate to a documentary film remains to be tested.
As far as fair dealing for the purposes of criticism and review is concerned, it has been
established by the case law relating to printed media that for this defence to be
successful, the contested material must be genuinely subject to criticism and review, and
not used purely for illustration, though in practice the distinction may be hard to draw.
54

Robertson & Nicol 2002:318-319.

See Bently & Sherman 2001:204-205
56
Robertson & Nicol 2002:316
57
One of the judges sitting in one of the most
widely-cited tests cases, Newspaper Licensing Agency v.
Marks & Spencer (1999), acknowledged that for the purposes of this defence an event may be a matter
of entirely local interest or of interest to a few people. See Bently & Sherman 2001:204n.
55

19 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

Certainly if the use merely conveys the same information as the original, and hence
competes with it, the courts would probably not consider this to be fair dealing.58 But
with this proviso, the courts have shown themselves to be prepared to apply a wide
interpretation, even allowing the defence in cases where an extract from a copyright
work was published not for the purposes of criticism or review of the work itself but for
the purposes of comparison to the work that is the central focus of attention.59
Here too, there is no exact parallel in Robertson and Nicols round-up of cases to the
circumstances or subject matters that one would typically encounter in making the kinds
of documentary generally advocated in this book. However they do report on another
case in which a defence of fair dealing for the purposes of criticism and review was
successfully offered and which has a particular resonance for documentarists of an
anthropological persuasion since it is not difficult to imagine an ethnographic
documentary being made on a similar subject. This was the case of Hubbard v. Vosper
(1972)which involved the publication of internal documents of the Church of
Scientology by a disaffected former member in order to illustrate and denounce the
gobbledygook religious philosophy on which the cult was based.60
Although this is a rather old case and one that long predates the CDPA, it is nevertheless
interesting in that it highlights another crucial aspect of the criticism and review defence,
also confirmed in many other cases, namely that in order to be successful, it is not
necessary that the criticism and review concern the formal literary or aesthetic merits of
the contested material. In fact, the criticism and review can have nothing whatsoever to
do with the form of the material reproduced but can refer exclusively to aspects of the
content, such as the thought or philosophy underpinning a work, or its social and moral
implications.61 Extrapolated more generally, this case suggests that a documentarist who
reproduces a copyright work it need not be a text as in this case, but rather a literary
work of speech, such as an interview, for example, or a performance of some kind
and then subjects its content to serious critical analysis should be able to call upon this
variant of the fair dealing defence, always provided that there is due acknowledgement
of the source, the extent of the reproduction is commensurate with the purposes of
criticism and review broadly defined, and that the reproduction cannot be construed as
being in some sense in competition with the original version.
In a number of the cases described by Robertson and Nicol, the fair dealing defence was
used in association with a defence couched in terms of public interest. They report that
58

This point was made by Alma Hales of the Open University rights
deptarment in the BUFVC seminar
referred to in note 0 above.
59
See Bently & Sherman 2001:202. See also Engle 1989:71.
60
I referred to this case in the previous chapter when discussing the law of confidence (see above, pp.
000-000). See Robertson & Nicol 2002:316, also
http://slcc.strath.ac.uk/scotslawcourse/ip/ip/copy/hubbard.html for a more detailed account.
61
See also Bently & Sherman 2001:202.

20 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

although the CDPA itself did not spell out a public interest defence, it did recognize its
existence in a subsidiary section and in a number of subsequent cases, the defence was
indeed successfully deployed. Something of a setback occurred in 2000, when the Court
of Appeal determined that whilst the defence certainly could be offered in cases of
copyright infringement, it should be much narrower than in breach of confidence cases.
In effect, the court ruled that it should only apply in cases where the enforcement of
copyright would result in effects that were immoral, contrary to family life or injurious
to public life, health or safety in various ways. But in subsequent copyright cases, the
public interest defence has received a further boost, particularly with regard to freedom
of expression considerations, as the influence of the Human Rights Act 1998 has
continued to percolate through English law.62
In addition to criticism or review and reporting current events, the CDPA specifies
two other contexts in which fair dealing might take place, namely for the purposes of
research of a non-commercial purpose and for the purposes of private study.63 Clearly
a defence on private study grounds would not be useful for documentarists since by
definition, they intend to show their work to third parties. But, on the face of it, it seems
that there might be a case for arguing that documentaries made for the purposes of
ethnographic or other forms of social research could fall into the first of these categories.
Certainly ethnographic research itself is not usually commercial, though it might be said
that if the films based on this research were then distributed in such a way that a profit
were generated, they could then no longer benefit from this defence. However, there is
also another shortcoming with this particular form of the fair dealing defence which
makes it of limited value to documentarists. This is that although fair dealing for the
other purposes that we have considered may make use of sound-recordings, films and
television broadcasts without risk of infringement, this is not recognized in the Act in
connection with fair dealing for the purposes of research or private study.64
It is sometimes assumed, erroneously, that if material has been released for promotional
purposes in connection with a work for example, the trailer of a feature film that it
may then be re-used without risk of infringement. It has been suggested that the origin of
this assumption is a convention developed in the US where such material is sometimes
referred to as public domain or PD.65 But whatever its origins, the assumption is
explicitly contradicted in the CDPA which states that although there is no infringement
in an artistic work when it is reproduced for the specific purpose of advertising that
same work for sale, it is an infringement if that promotional material is then dealt with
62

See Robertson & Nicol 2002:320-322. But see also Bently and Sherman 2001:209-211 who at time that
they were writing, entertained serious doubts about the continued viability of this common law defence.
63
See CDPA, s.29 as amended by the 2003 Regulations, S.I. 2498, reg.9.
64
Robertson & Nicol 2002:319. Nor can this defence be offered in relation to dealing in performances
since most of the acts covered by the defence fall outside the rights conferred on performers (which do
not extend to the making of recordings for private or domestic purposes) (Bently & Sherman 2001:299).
65
See Weston 2005:7.

21 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

for a different purpose. A later amendment made it clear that dealt with in this context
should embrace any form of communicating that material to the public, not just
commercial uses.66

Educational Uses
If certain doubts remain with regard to the viability of a fair dealing defence when films
are made for ethnographic research purposes, what is clear from the Act is that there is
no copyright infringement in any work, including those in aural and visual media, when
these are reproduced in the course of instruction or of preparation for instruction, i.e.
for teaching purposes within an educational environment. This exception is subject to
various conditions including that the reproduction is done by a person giving or
receiving instruction, that the original work is given sufficient acknowledgement and
that the instruction is for a non-commercial purpose. The 2003 amendments to the Act
introduce the additional specific requirement in relation to literary, dramatic, musical or
artistic works - though not for sound-recordings, films or broadcasts - that there should
also be fair dealing. In this context, it is reasonable to suppose that this should be
understood in the same way as fair dealing is understood more generally, i.e. the
proportion of the works used, and the manner, should be commensurate with the
educational purpose and should not compete in any way with the rights owners material
rights in other contexts.67
The provisions of the CDPA also mean that there is no risk of copyright infringement
when documentary films made by students, or by their teachers, are screened within an
educational institution to those who are directly connected with the activities of the
establishment. But things get more complicated if the students or teachers should want
to screen or distribute these films to broader audiences. For the Act expressly excludes
from the copyright dispensations any copies of works produced for educational purposes
that are subsequently dealt with. It goes on to specify that in this context dealt with
includes not just copies that are offered for sale or for hire, but also, according to a 2003
66

CDPA, s.63 as amended by the 2003 Regulations, S.I. 2498,

reg.17. Bently & Sherman (2001:217)
explain that this section serves to reconcile a possible conflict between the owner of a work for example,
a painting - who wishes to advertise it for sale and the owner of the copyright in that work who might
well be different.
67
CDPA, s.32 (1-3), as amended by the 2003 Regulations, S.I. 2498, reg.11. Another important condition
is that the reproduction should not be by a reprographic process. This is intended to prohibit bulk
photocopying of textual material which obviously does not apply to films. It would be rather pushing the
limits of language to suggest that video-copying represents a form of reprographic process but clearly
bulk copying of videos would be against the general spirit of the exceptions granted to educational
institutions by the Act. However there is otherwise no specific prohibition on the making of copies of
videos containing copyrighted material produced in educational institutions, so it seems reasonable to
presume that the making of a limited number of copies for giving to the subjects of a film, or to friends
and family, would not be precluded.

22 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

amendment, those that are merely communicated to the public.68 Moreover it also
makes clear, albeit in a subsequent section obviously aimed primarily at schools, that
what constitutes the public in this context should be strictly interpreted. For even if its
only parents of a pupil at the establishment who are in the audience, then for copyright
purposes, the audience is no longer an audience of those directly connected with the
activities of the establishment, but rather a public audience. This provision is obviously
intended to prohibit schools from putting on plays and screening films without seeking
an appropriate licence from the rights owners. But it could be interpreted as also being
relevant to the public screening of films made within tertiary educational institutions.69
If this is a correct interpretation, then it would appear that unless the necessary consents
or licences have been obtained, student works including copyright material that are
screened in a public place or otherwise distributed to the public in general would be at
risk of infringement. Of course, the generally applicable defences discussed above
would still be available with regard to these student works, i.e. the incidental inclusion,
fair dealing and public interest defences, as would the more general test of substantiality
and any other relevant exceptions.70 But this is nevertheless a consideration that both
students and course-givers need to take into account right from the start of any
production since whilst the film-maker is still on location, the arrangement of the
necessary consents will often be very much easier than it will be weeks or months later
when the public release of the final edited version is imminent.

Managing Copyright Risk

Many documentarists will undoubtedly consider the process of familiarizing themselves
with the intricacies of copyright legislation as supremely tedious and a most unwelcome
distraction from the more creative aspects of their craft. But whilst it is certainly true
that immersing oneself in the intricacies of copyright could hardly be called entertaining,
it does have a number of consolations.
Perhaps the most important of these is that it gives one a certain degree of confidence in
managing the risk of copyright infringement that is a necessary aspect of making almost
68

CDPA, s.32, 5(b) as amended by the 2003,Regulations, S.I. 2498, reg.11

CDPA, s.34
70
With specific reference to sound recordings, the CDPA states in s.67, as modified by reg.18 of the 2003
Regulations, that there is no copyright infringement if they are played as part of the activities of, or for the
benefit of a non-profit club, society or other organisation with charitable objectives or which are
otherwise concerned with the advancement of religion, education or social welfare. Certain conditions
attach to this exception, including that any charge for admission or profit from goods sold in conjunction
with the playing of the recordings, should be applied solely for the purposes of the organisation and that
the person doing the playing should not be acting for personal gain. This measure is presumably intended
to allow such bodies as youth clubs and churches to play music in their establishments, but it would
appear also to provide cover for the public screening of student films that include copyright music.
69

23 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

any documentary, and certainly any documentary made in the UK or a legal jurisdiction
with similar copyright provisions. At the beginning of this chapter, I pointed out that
copyright infringement can lead to various legal ennuis - not just to a civil action but
even to a criminal prosecution. But the reality is that in the great majority of cases,
disputes about copyright never get as far as the courts. When they actually do so, the
remedies open to an aggrieved rights holder are actually quite limited. In the simplest
cases, successful claimants can merely claim compensation for the fee that they would
have been able to charge if the defendant had taken out the appropriate licence. If the
breach of copyright has been particularly flagrant or if the defendant has managed to
make a large profit out of the breach, the courts may, at their discretion, decide to award
additional damages or require the defendant to hand over the profits to the rights owner.
The courts can also order delivery up to the claimant of any outstanding copies of the
infringing work which the defendant may still retain. But this too is a discretionary
remedy which will only be enforced if the courts conclude that the rights of the owner
cannot be protected in some other way.71
Although in theory perfectly possible, criminal prosecutions in copyright cases are
relatively rare and it is highly unlikely that they would be brought against any
documentary film-maker. The Crown will only initiate a criminal prosecution if an
infringement involves knowing commercial piracy on a significant scale. Private
individuals or bodies may initiate private prosecutions but these too are rare for although
they might result in a fine for the defendant and an award against him or her of the legal
costs, they do not entail any financial compensation for the person bringing the
prosecution.72
Even so, when the spectre of paying legal costs are added into the equation, let alone the
time-consuming inconvenience of a court case, these penalties should be enough to
concentrate the mind of any documentarist on the importance of not giving any rights
owner the grounds for making a claim for a copyright breach. However, the mind of a
potential claimant should also be concentrated by the knowledge that the documentarist
may be able to offer any one of the various defences described above and if, in the event
of a court case, the documentarist were successful, it would be the claimant who would
be saddled with the legal costs. It goes without saying that these are usually likely to
exceed by far the value of the fee that he or she would have been able to claim for the
use of the material in dispute.
Thus if a claimant should indulge in any form of sabre-rattling, suggesting dire legal
consequences should the documentarist not pay up some large fee for some alleged
breach of copyright, the documentarist who has considered copyright matters in some
detail will be well placed to take some sting out of the encounter simply by making it
71
72

CDPA, ss.96, 99, 100. See also Cranwell 2002: 59-60, Robertson & Nicol 2002:340-342.
CDPA, s.107, also Cranwell 2002:60-61, Robertson & Nicol 2002:342-343.

24 Handbook Of Ethnographic Documentary, Pt.2, Sec.2, Chap.1, IPR: Principles

clear that he or she is aware that whether an infringement has occurred is usually far
from being a cut-and-dried matter. Moreover, if an infringement has occurred various
defences against the charge may be available. Within this balance of powers, it is much
more likely that an equitable settlement between rights owner and user can be reached
without any recourse to the courts.
Another potential benefit of familiarizing oneself with copyright matters is that it
enables one to negotiate a licence to use copyright material with greater confidence. As
a general rule, the level of fee that a rights owner seeks will be dependent on such
factors as the nature of the production and its commercial potential, what media it will
be distributed through, which territories of the world it will be distributed in, and the
period for which the licence is sought. Whilst the rights owner will be seeking to licence
as narrowly as possible for the highest possible fee, the documentarist should be hanging
in for the widest licence at the lowest possible fee. Perhaps more than anything else, it is
important for documentarists to realize that however apparently set in stone the fees
demanded by rights owners or their representatives may be, in reality, haggling over fees
is as customary in rights negotiations as in any Andalucian horse fair. The only
difference is that in a rights negotiation, the deal should normally be clinched by the
exchange of some sort of written contract rather than by the mere touching of hands.
Finally, of course, a familiarity with copyright matters should enable documentary filmmakers to give better protection to their own copyright when they move from producing
to distributing their own work. The best game-keeper, it is said, is always the former
poacher.

10/3/05: 12,073 words including footnotes (9,742 without).