Viewpoint: Blu-ray exemption is fair play for doc-makers

Christopher Perez (pictured), a partner with LA-based law firm Donaldson + Callif, explains how doc makers will be affected by last week's U.S. Copyright Office ruling to extend an exemption to the Digital Millennium Copyright Act and expand it to include Blu-ray discs.
November 6, 2015

Christopher Perez, a partner with Beverly Hills-based law firm Donaldson + Callif, worked with his partner Michael C. Donaldson and the UC Irvine Intellectual Property, Arts and Technology Clinic, led by Jack Lerner, to secure the exemption for documentary filmmakers to the Digital Millennium Copyright Act (DMCA). Here, the attorney explains why the U.S. Copyright Office’s latest DMCA ruling – and the expansion to include Blu-ray discs – is a victory for doc-makers.

If you’re a documentary filmmaker, the following scenario may hit close to home. You’re in post-production, and you’re familiar with the fair use doctrine, which allows you to use small portions of copyrighted works for purposes of criticism or commentary. To illustrate a point you’re making in the film, you need to use archival material contained on a Blu-ray disc. Sure, you would use a DVD, but you know that international broadcasters require higher technical standards than what can be reproduced from a DVD.

While you would normally be able to rely on the fair use doctrine for the use of the material without the permission of the copyright owner, you cannot access the material because the Digital Millennium Copyright Act (DMCA) makes it a crime to circumvent access controls that protect Blu-rays.

What good is fair use if you have no way to access the material you need?

Every three years, the U.S. Copyright Office asks interested parties to appeal for an exemption from the DMCA for limited classes of users. From our experience at Donaldson + Callif working with documentary clients, our firm knew that documentary filmmakers had a substantial need for this exemption.

In 2008, our firm and Jack Lerner, then with the USC Intellectual Property and Technology Law Clinic, requested the Copyright Office consider documentary filmmakers — who use archival footage more often than most filmmakers — as a class of users that needed an exemption from the DMCA to take advantage of rights under the fair use doctrine.

After interested parties were allowed to present evidence of documentary filmmakers’ “substantial need” for an exemption request, a round of comments and responses and, finally, a public hearing, the exemption request was granted for documentarians who needed material from encrypted DVDs to take advantage of fair use. In 2012, we were able to expand this exemption to allow documentary filmmakers to access material from digital online sources as well.

Last week, the Copyright Office granted an even broader exemption for documentary filmmakers that need to access materials from DVDs, digitally transmitted video, and now, Blu-ray discs.

The Copyright Office’s rule-making proceeding is important for many reasons, but mostly because the blanket restrictions of the DMCA have limited free speech and those who wish to take advantage of fair use. Before this ruling, you could take advantage of the fair use doctrine in a documentary, but if the only way to source the copyrighted material was from encrypted sources, there was always the danger of liability from a violation of the DMCA.

The expansion to Blu-ray discs is especially important because, as Jim Morrissette of Kartemquin Films in Chicago argued before the Copyright Office, the technical specifications of broadcasters and other distributors both within the United States and abroad have become more and more stringent. Also, more material is only available on Blu-ray and not on DVD.

Now that the exemption has been granted, what does this mean for the documentarian? It means that if you have made a legitimate fair use of third-party material that was sourced from an access-controlled DVD, online source or Blu-ray disc, you will not be in violation of the DMCA.

Keep in mind, however, that if it’s not used pursuant to fair use, then it will also likely be a violation of the DMCA. You should seek the advice of a clearance attorney to ensure that your use is a fair use, which will allow you to secure errors and omissions coverage for your film.

Ultimately the U.S. Copyright Office was confident that documentary filmmakers, as a class, had a substantial need for this exemption. As copyright holders themselves, the documentary community has demonstrated both the substantial need for this exemption as well as a history of using past exemptions in a responsible way.

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