Ok, that might be overreaching. Yet, who would would believe US copyright law to be the envy of media artists in other countries? As expensive and time consuming as the clearance process is to license copyright protected imagery, as untold numbers of projects are shelved because of anticipated rights problems, and considering the multitudes of documentary films that have gone out of circulation because producers cannot afford to renew licenses, it seems astonishing to think that US filmmakers might actually have copyright laws that are the envy of their international counterparts.

At this year’s International Documentary Festival Amsterdam, IDFA, Center for Social Media executive director Pat Aufderheide moderated a panel discussion on copyright and fair use aimed toward sharing a status update from the US and finding out what is going on elsewhere. Joining Aufderheide from the US was filmmaker Kirby Dick (This Film is Not Yet Rated) who relied on copyright law’s exception, ‘fair use,’ to include clips from a variety of films that had gone through the MPAA movie ratings board process, illustrated in Dick’s film as a deeply flawed process.

Aufderheide and Dick shared the “Documentary Filmmakers Statement of Best Practices in Fair Use” – a tool created by US documentary filmmakers, under the auspices of professional service organizations, to refocus industry practice on utilizing ‘fair use’ of copyrighted material when appropriate. According to previous research at the Center for Social Media, filmmakers and attorneys alike suffered from not having a shared understanding of the law and were perhaps interpreting it overly conservatively to avoid litigation and secure E&O insurance needed for exhibition. Dick, along with his attorney Michael Donaldson (author of Clearance & Copyright: Everything the Filmmaker Needs to Know), utilized the Statement to negotiate favorable licensing deals for This Film is Not Yet Rated.

Other countries, it seems, are faced with similar problems – rising costs from archival and stock agencies, withholding of copyright licensing to censor point of view, a culture of fear of litigation around possible infringement, and a myriad of difficulties when copyright holders cannot be located. Panelists representing Europe, Kamiel Koelman of Vrije Universiteit in Amsterdam and Hubert Best of Best & Soames of UK and Sweden, discussed that though European laws vary from country to country by and large, those laws are often much more explicitly worded than US law. Many in the US criticize US law for being too vague and wish for test cases in courts to give defined parameters to what is ‘fair use,’ yet the well-defined parameters of European copyright laws caused filmmakers in the panel audience to express frustration with the lack of wiggle room and desire for more flexibility such as in US law. There, the problem is less flexibility of law.

Filmmakers in Canada are faring a bit better. Though Canadian copyright laws have cultivated a similar “clearance culture,” Canada’s legislature is looking to do something about it, and in hopes of stemming more restrictive statues, Documentary Organisation Canada (DOC) has reached out to its members to survey them and are using the results of the survey to lobby lawmakers. At the IDFA panel, Michael McNamara, representing DOC, shared results of a survey, published in a white paper, Censorship by Copyright by Kirwan Cox: “fully 85% of respondents said copyright is more harmful to them then beneficial.” Armed with the survey, DOC is now engaged in lobbying effort to persuade lawmakers to harmonize, a term that popped up many times at the panel, Canadian copyright’s ‘fair dealing’ to incorporate US ‘fair use’ concepts such as parody, social commentary and critique.

Aufderheide and others on the panel advised filmmakers in the audience who are concerned about their rights to use copyright protected material in documentary filmmaking to use the US project as a model. Establish the issues and generate best practices by consensus to work within the laws, while lobby for changes, if necessary. DOC is already taking steps and European Documentary Network (EDN) was mentioned as a potential professional organization in the European community to take up such a project.