COPYFRIGHT! Accessing Archive - Is it a Fair Deal?
Jacqui Edwards is an archive researcher whose first job was on This Morning with Richard and Judy, and who has subsequently gone on to work on iconic documentaries such as The End of the Line, and with award winning directors, such as Olly Lambert on Ross Kemp in the Middle East. Archive researchers are most often contracted to locate material that is historical or too expensive for production companies to shoot, coming into contact with copyright protocol on a daily basis.
Jacqui gives DFG her opinion about how far the conventions and rules regarding the clearance of copyright are justified, her experience with the elusive Fair Dealing norms in the UK and much more…
What are some of the institutions you access most regularly?
The sources I would use most frequently would be the news and programme archives such as ITN, Associated Press and the BBC… There is a difference between each source, even ones which are similar like AP and ITN in how much research you can do online and how much viewing you can do online and sort of offsite .At the BBC…there's still quite a lot you can do only if you get someone to research in Microfiche in New York, whereas ITN and AP, it can be pretty much guaranteed that everything they will have will be digitally searchable even if it's not viewable.
Do you think archive copyright is made too difficult at the moment?
[That’s] partly because of how libraries have evolved organically. Archiving in this country didn’t really occur until the 1930s. Lots of broadcasters didn’t even properly start saving footage until the 60s…and the documentation hasn’t been as accurate as it could be. You really rely on the supplying library for information…if that information isn’t readily available when you’re first acquiring the footage you can get yourself into problems… If it was made too easy I think there may not be as much of a requirement for somebody with my specialism.
Do you think archive footage excludes newer filmmakers from making films with a more historical component?
…The cost is certainly off-putting… if you're self-funding, and I think there are a lot of complications with copyright for example which would be off-putting. It's harder to do if you're just independent [rather than having] the resources behind you of a company willing to fund it, possibly having a specialist archive researcher or being able to take proper advice on copyright and just really having the money to be able to be able to call lots of material in and look at it thoroughly.
Have you ever used Fair Dealing*?
Yes I have - not very often…it's harder to do within companies and broadcasts now. The world seems to be a much more litigious place and people are less willing to take that risk. [In the most recent example]…we wanted to use some advertising. The person who’d made the advert didn't really like the context, so refused permission. So on that basis we used it in a critique and review context, which involved getting an interview to be recorded in line with commentary so we could justify the critique and review argument of the law. ... I'm aware a programme called Rudetube did fair deal quite a lot of their material. The set up of the programme made it that much easier because the clips were being presented in a here's some funny clips way.
Was the use based on satire and parody?
No, not really, that’s much more the US fair use legislation as far as I know - it’s strict critique and review under UK law.
Do you think there should be a place for it under UK law? A lot of material was used in this way with the election campaign just gone.
Yeah.I really don’t know how these people do it. The broadcaster has to be really behind them…if they don’t get a licence to do it in the first place. I think with news and current affairs, it’s probably a bit easier, because everyone involved in the footage is a public figure, in a public role, so you have less third party issues, whereas if you were satirizing somebody who wasn’t a public figure, it would probably be harder…that’s a sort of legal grey area that I tend not to get too involved in. Armando Iannuci actually didn’t give me a job once because he said I was… too thorough in the way I wanted everything to be properly cleared and licenced! And that’s not what he’s about! In most licences you get from people like ITN, you’re specifically told you’re not allowed to manipulate the footage in any way, and obviously with something like Time Trumpet, or maybe The End of Year Reviews, that would be dubbing over the footage, and editing things together, so that people are saying what they didn’t originally say, that sort of contravenes licence agreements… I’m not sure how they did that legally… but I’m sure it did make a difference that they were public figures and not private individuals…My knowledge of it is broad brush strokes from my experience… it would help a lot if you had a lawyer giving you a properly bullet pointed account of how the law should be applied.
Is it something you might recommend to independent filmmakers who were starting out?
No I would generally advise doing things as properly as you can, but obviously it depends on what it you’re fair dealing, how strong the case is and of course where you’re hoping your film will be shown. The thing about Fair Dealing is that it only applies in the UK. We’ve got Fair Use in the US but that’s applied differently. I think Canada have a similar law but it’s not identical. I think there might be something in France but there’s huge swathes of the globe where there just isn’t that provision.
Some people view Youtube as an archive and use it as one. What are your feelings on this?
I think it has its uses. When I worked with Olly Lambert, it was a resource whereby he could show me what he was hoping to find. And as long as he wasn’t being prescriptive that it has to be this exact shot, and it was just more like, if we could get something like this, then that can be really helpful. What I don’t like usually is when directors find something that has to be that shot, and it’s quite hard to tell who owns it, whoever’s posted it may not be the person who owns it, and it can quite difficult legally. It would also depend if it’s commercial footage or user generated content. I don’t think it’s a resource that should be used without at least some effort to track down the original users.
Do you think it compromises other existing archives?
It can do. I mean if something’s been put up without the copyright owner’s consent, it can encourage people to think it’s freely available because it’s on Youtube. It does create this confusion in people’s minds I think.
So you think there’s often confusion because it’s just not clear enough?
Obviously there are some companies who use Youtube as a sort of advertising resource, like a lot of the news agencies, AP, Al Jazeera have their own channel on Youtube and it’s a way of engaging people with their content which I think is useful, but then when a lot of people see it, they think oh they’ve put it online, that must mean we can have it, and then that kind of is a step too far in terms of what’s legal I guess.
What do you think of mash-up artists who put their work up on Youtube, which often entails getting clips off Youtube?
I think there’s a difference legally and probably morally in making something for your own entertainment…and making something that’s a commercial product…if a TV production company did all this mash up stuff and took lots of material without consent and sold it on for profit, it’s different from somebody in their own bedroom, parodying because they find it funny and they want to show off a bit.
What kind of material do you think should be freed up and put into Creative Commons repositories?
I think in the UK maybe material that has been generated from government institutions, eg. The MOD... Similar material in the US is freely available as long as it doesn’t compromise security. In the UK, it can take you ages just to track down footage that you want from the correct person, and then you have to pay a royalty which would be at least double what you would pay to a news agency which would be similar material.
How much would you pay a news agency for material in comparison to government institutions?
If you were paying UK rights, somebody like ITN would be about £15/second, and the same footage from the MOD would be £25 or £30. [Al- Jazeera however] actually claim exclusivity over certain footage, particularly footage that they receive directly from the publicity wing of Al-Qaeda. And when I’ve tried to licence that in the past they’ve asked for $6,000 per minute for world for world or media rights.
What do you think the moral implications of this are?
Well, I think, that’s a really tricky one because if you could get that footage directly from Al-Qaeda yourself, you wouldn’t be permitted to licence it, because you’re not allowed to fund terrorist organizations, so I think if Al-Jazeera are taking money as a sort of middle man in this, it’s a bit dubious.
What are your tips for independent filmmakers wanting to use archive footage in their films?
I think it’s probably a good idea to try and get the archive involved as early as possible, and ask them for suggestions - saying I’ve had this idea for a film, do you have any suggestions? The more you get them excited about the project, the more you might be able to get them to do a better deal further down the line. Sometimes [librarians] can feel like they’re constantly pen pushing…from my experience of working in an archive, when you are more involved in the creative process, you do feel a lot more… enthusiastic about the project and willing to help.[It’s important to do this at the beginning of the production rather than in the edit, when the library can really put you in a tight spot for a particular necessary piece of footage].
*Fair Dealing: is a law, heavily open to interpretation by courts, governing the use of excerpts of other people’s work (in this case film or footage) free of charge in another piece of work. I.e., Fair Dealing rules over the use of uncleared footage. For more information visit www.ipo.gov.uk
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