New DMCA ruling hailed as a victory for doc-makers

The U.S. Copyright Office has updated rules applying to encrypted DVDs, allowing documentarians to quote from copyrighted works for the fair use purposes of criticism and comment.
July 28, 2010

On Monday of this week, the U.S. Copyright Office granted an exemption to the Digital Millennium Copyright Act (DMCA) that many American documentary filmmakers have waited years to see.

Whereas in the past it was illegal to break encryption on protected, commercially available DVDs for any purpose, with the new ruling from the Librarian of Congress made on recommendations from the Copyright Office, it is now legal for doc-makers, college and university professors, students of film and media studies and non-commercial video makers to circumvent the encryption in order to incorporate ‘short portions of motion pictures into new works for the purpose of criticism or comment.’

The initial request for the exemption was made in December of 2008, drafted by Michael Donaldson, founding partner of Donaldson & Callif, and the members of the USC Intellectual Property and Technology Law Clinic at the Gould School of Law. (Donaldson wrote an op-ed piece for realscreen concerning the call for an exemption in November of last year.) Named petitioners were Chicago-based Kartemquin Films and the Independent Documentary Association (IDA). In May of 2009, documentary filmmakers went to Washington to present the case for using encrypted materials for purposes that fall under the umbrella of fair use. Documentary organizations and filmmakers supporting the request included The Center for Social Media, Film Independent, Independent Feature Project, Kirby Dick and Morgan Spurlock.

‘This exemption will affect documentary filmmakers across our community,’ said Kartemquin Films co-founder and artistic director Gordon Quinn in a statement issued by the IDA. ‘The DMCA had made it difficult for filmmakers to exercise their fair use rights. Today’s ruling removes the unwarranted threat to the exercise of those essential rights – rights that we must be able to use if we are to continue to play a vital role in our democratic culture as reporters, critics, commentators and educators.’

There are conditions that must be met within the new ruling. The excerpt used must be ‘relatively short,’ a new work must be created incorporating the excerpt or excerpts, and the documentary filmmaker must ‘reasonably believe that the circumvention is necessary in order to fulfill the purpose of the use’ – in other words, that shooting a clip from a TV screen or transferring from video tapes won’t suffice in meeting the work’s standards.

The exemption will be available until October of 2012, when the next ruling concerning DMCA anticircumvention rule-making takes place and the exemption will be considered for renewal. For more information on the ruling, click here.

About The Author
Andrew Jeffrey joined Realscreen in 2021 as its news editor. Here, he helps to oversee assignment, reporting and editing for Realscreen's daily newsletter. Prior to his work covering documentary and non-fiction film and TV, he worked as a reporter and associate producer for CBC Edmonton, and as a reporter for The Star Calgary, where he covered daily news on beats such as local and provincial politics, health care and harm reduction, sports and education. His work has appeared in other Canadian news outlets such as TVO, the Edmonton Journal and Avenue Magazine.