The International Copyright Balance and Documentary Film Project of America University, together with South African film industry organisations, including the Documentary Filmmakers Association (DFA), Women of the Sun (WoS) and Black Filmmakers Network (BFN), released a groundbreaking report on copyright clearance obligations for South African documentary filmmakers at the end of 2009.

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Marc Schwinges, board member of the DFA
Filmmaker and board member of the DFA, Marc Schwinges, explains that the report essentially summarises research conducted with 41 South African filmmakers by the DFA and BFN in late 2008 and 2009.

"This research is about filmmakers' perceptions and practices in South African copyright law. These views were then analysed, with a draft version of the report, at an industry forum hosted in March 2009 in Cape Town by American academic legal experts from the American University. We also met up in December 2009 to finalise the report."

He elaborates that the report also includes South African legal and constitutional viewpoints. "A legal review was commissioned and this was also included in the report, along with the filmmakers' views.

The report is now a blueprint in defining what is 'Fair Practice' with regard to our industry. 'Fair Practice' includes such rights as 'Fair Quotation', 'Incidental capture of artistic works' etc. The ultimate aim is to publish a 'Best Practice Document', which examines what documentary filmmakers consider fair use and reasonable interpretations of various 'User Rights' in the South African Copyright Act. Additionally it also aims to look at how South African copyright law may be reviewed in the future."

Some of the major issues that arose with regards to the report revolved around what constitutes filmmakers' rights when it comes to using copyrighted material.

"Filmmakers struggle to comprehend what 'User Rights' are, how to implement 'Fair Practice' and what the legal repercussions are of not following a best practice guideline. We hope that the report will go some way in clarifying these issues," says Schwinges, adding that they hope the report may in future influence South African copyright law.

"However it is too early to comment on possible changes to the South African Copyright law, but ultimately the report does allow us to analyse further and possibly in time, to make some suggestions that may influence the law. The existing 'User Rights' however can only be effectively utilised within an industry accepted and widely published 'Best Practice' document, the 'Gatekeeper' (broadcasters, distributors etc) would also need to accept this 'Best Practice'. However the 'Best Practice' document is still a work in progress and is not complete."

He explains that the DFA, WoS and BFN have all pledged to take the process forward. "We are attempting to secure funding to draft a complete industry 'Best Practice Document'. Once a draft of this document is complete - hopefully in a year if funding is sourced - than a broader industry review process will again be conducted. A task team is currently being finalised to take this process forward."

Schwinges concludes: "Once we have a 'Best Practice Document for Documentary User Rights in Copyright for South Africa', we will need to test it. Once it has been tested, and the 'Gatekeepers' have accepted it as a reasonable alternative to clearing all material, then we may look towards the standards that exist worldwide between all 'Best Practice Documents' so that a film can enjoy global exposure."

For more information, go to www.docfilmsa.com/rights/.