South African Documentary Filmmaker Copyright Survey

* – required

This survey is being conducted as a partnership between the South African Documentary Filmmakers Association DFA and the Program on Information Justice and Intellectual Property PIJIP at the American University in Washington DC, together with the Black Filmmakers Network (BFN). The goal is to assess the difficulties facing documentary filmmakers in South Africa when making use of copyrighted material – music, archives etc. – in their films, with a view to providing some assistance – as well as to ascertain Sourth African filmmakers attitudes toward copyright in general.

PIJIP has done some path-breaking work with filmmakers in the U.S. and other countries on “Fair Use” of copyrighted material. “Fair Use” (or in South Africa “Fair Dealing”) refers to circumstances under which it is permissible to use copyrighted material without paying or obtaining the permission of the copyright owner. An example might be the use of a news clip in your documentary to illustrate the way in which a news story has been covered by a broadcaster. Clearly it is important to achieve a balance between respect for a content-owner’s copyrights—which many documentary filmmakers depend on for their livelihoods—and the right to make use of copyrighted material—which documentary filmmakers often need to produce their films.

The survey aims to obtain both a general statistical response and qualitative stories and anecdotes about the actual and perceived copyright environment in which documentary filmmakers in South Africa work. The information aggregated in this survey will be published in a report and made generally available free of charge through PIJIP, DFA and BFN and other filmmaker organisations. (Note that comments you make may on this questionnaire may be quoted in the final report and may be attributed to you unless you ask to treat one or more answers as anonymous.). Analysis of the survey results and discussion of the way forward will be the subject of a special meeting in mid-March 2009 to which you will be invited.

Thanks for taking the time to fill in the survey!


	1 About You and Your Work

*1.1 First Name:

Please enter your first name

*1.2 Last Name:

Please enter your surname

1.3 Mailing Address:

(chars left: 500)

Please enter your mailing address

1.4 Email address:

Please enter your email address

1.5 Cellphone Number:

Please enter your cellphone number

1.6 Landline Number:

Please enter your landline phone number

1.7 Company Name:

Please enter the name of your production company

1.8 Your Role:

Please select your role (tick one or more options)

1.9 Percentage
Documentaries:

100%

50% or more

less than 50%

Please indicate what percentage of your work comprises documentary films

1.10 Documentary
types:

What kind of documentaries do you produce? (tick one or more options)

1.11 Number of
Doccies:

One

2 to 5

5 to 10

Over 10

How many documentaries have you produced?

1.12 Budget:

What is the rough budget range of your most recent documentary films?

1.13 Distribution:

Where have your documentary films been shown? (tick one or more)

1.14 Distributors:

(chars left: 2000)

Please list a few of the main broadcasters or distributors you have worked with

1.15 Your Film:

(chars left: 1000)

Tell us about a recent documentary film you worked on, or a documentary from the past that is significant. Give us the Title, Subject, Duration, Year Produced, Your Role and Where It Was Shown

1.16 Another Film:

(chars left: 1000)

Tell us about another memorable documentary film you worked on


	2 Your Copyright Experience

We’d like to know what kind of copyrighted materials you use in your filmsand what kind of experiences you have had. Please give us some examples to illustrate your answers.

2.1 Copyrighted
Materials Used:

2.2 Sources Used:

Archive or repository

DVD

CD or other retail source

Incidental capture of background activity

Off-air recordings

Other:

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Which of these sources of copyrighted materials do you use most often?

2.3 Materials
licensed:

Have you ever obtained permission or paid for the rights to use copyrighted materials in your films? (tick if yes)

2.4 Exceptions you
know of:

Are you aware of any circumstances under which the law in South Africa allows you to use copyrighted material in your films without a license from the content owner? (tick if yes)

2.5 Details of
exceptions known:

(chars left: 2000)

If you ticked the box, please give details.

2.6 Exceptions you
support:

(chars left: 2000)

Under what circumstances, if any, do you think it is should be acceptable for you to use copyrighted material in your films without seeking a licence?

2.7 Unlicensed
materials used:

Have you ever used copyrighted material in a film without seeking a licence? (tick if yes)

2.8 Details of
unlicenced use:

(chars left: 2000)

If so, did you believe the use to be permitted under the fair dealing provisions of the copyright law or did you have other justifications? Did you encounter legal problems or other difficulties? Please give details.

2.9 Why never used:

(chars left: 2000)

If you have never used copyrighted material without seeking a license, can you explain why not? Is it that you did not know about the exemptions or exceptions, or that you did not believe that they would apply, or that it would not be safe, or that someone advised you not to?

2.10 Played it safe:

Have you ever licensed and paid for material just to be safe when your gut feeling was that legally you didn’t have to? (tick if yes)

2.11 Details of when
you played it safe:

(chars left: 2000)

If you ticked the box, please give details.

2.12 Avoided use of
copyrighted
materials:

Have you ever decided not to use material in order to avoid having to license it, or because of difficulties in obtaining a licence? (tick if yes)

2.13 Details of
avoidance:

(chars left: 2000)

If you ticked the box, please give details.

2.14 Clearance
required in
contracts:

Have any South African industry players, such as broadcasters, funders, required you to sign a contract confirming that you will clear all copyrighted material? (tick if yes)

2.15 Clearance
contracted by who:

(chars left: 2000)

If so, by who?

2.16 Evidence of
clearance required:

Have you ever been asked to provide evidence of copyright clearance? (tick if yes)

2.17 Clearance
demanded details:

(chars left: 2000)

If so, please give details

2.18 Licence refused:

Have you ever been refused a licence to use copyrighted material? (tick if yes)

2.19 Details of
licence refusal:

(chars left: 2000)

If so, please give details of who refused the licence and the circumstances.

2.20 Received
limited term licence:

Have you ever been forced, in order to clear material, to accept a licence for a limited term that could prevent you from distributing your film at a future date? (tick if yes)

2.21 Film withdrawn
due to limited
licence:

Has the assertion of copyright license renewals ever required you to withdraw one of your films from public circulation? (tick if yes)

2.22 Details of film
withdrawal:

(chars left: 2000)

If so, please give details.

2.23 International
distribution
prevented:

Has the clearance of rights ever prevented you from international distribution of a film? (tick if yes)

2.24 Details of
prevention:

(chars left: 2000)

If so, please give details, including an indication of which countries you know to be a problem.

2.25 International
broadcasters
clearance
requirements:

Increased

Decreased

With films for international distribution, do you face increased or decreased demands from foreign broadcasters, funders, or others to provide evidence of clearance of rights?

2.26 Details of
international
clearance
requirements:

(chars left: 2000)

Please give details, if any.

2.27 Music used:

Commercial music
Mood music from library
Commissioned music

Which types of music do you use in your films? (tick one or more)

2.28 Problems with
licensing music:

(chars left: 2000)

What problems, if any, have you encountered with music copyright?

2.29 Budget
percentage on
clearance:

less than 10%	around 10%
around 20%	over 20%

What percentage of your average budget goes to legal clearances and other copyright related issues?


	3 Use of Archives

Archives use two tools to control access to the material they own. The first is controlling physical access and requiring contracts to gain access; the second is using copyright law e.g. refusals to licenseengaging in enforcementetc. to attempt to restrict the use of material originating from archives but which has escaped archival control. We are particularly interested in the use of copyright by archives to control material which is already in circulation.

3.1 Archives used:

(chars left: 2000)

List some of the main TV archives or repositories of footage and other material which you have used (e.g. SABC, BBC)

3.2 Trouble
accessing archives:

Have you had trouble accessing affordable archival material? (tick if yes)

3.3 Details of
archive troubles:

(chars left: 2000)

If so, please give details.

3.4 Used second hand
archive:

Have you ever used a second-hand copy of footage originally from an archive? (tick if yes)

3.5 Second hand
archives source:

(chars left: 2000)

If so, where did you get the second-hand archives from?

3.6 Unlicensed
second hand archives
used:

Have you ever used second-hand material which may have originated from an archive without clearing the rights with the archive? (tick if yes)

3.7 Details of use
of unlicensed
archive:

(chars left: 2000)

If so, what were your reasons for doing so? Were you worried about doing so?


	4 Asserting Your Own Copyright

The previous section asked about problems you may have had clearing rights owned by others. In this sectionwe are asking whether your own work has ever been used legitimately or in violation of your rights. Please give as many examples as you think necessary.

4.1 Your copyright
ceded:

Do you sometimes find yourself giving up copyright in your own productions by virture of the deals you have to enter into with funders or broadcasters or other organisations? (tick if yes)

4.2 Details of
copyright ceded:

(chars left: 2000)

If so, give details.

4.3 Your work
licensed:

Has another content creator ever licensed excerpts from your work for use in their productions?

4.4 Your work
misused:

Do you know of anyone misappropriating your work or using it without giving you proper payment or recognition? (tick if yes)

4.5 Details of your
work abused:

(chars left: 2000)

If so, please give details.

4.6 Support fair use
of your work:

Are there circumstances where you are happy for your work to be used without permission or without payment?

4.7 Details of your
support for reuse of
your work:

(chars left: 2000)

If so, please give details.

4.8 Your permission
abused:

Have you ever given permission for your work to be used and then been dissatisfied with the result?

4.9 Details of abuse
of your permission:

(chars left: 2000)

If so, please give details.

4.10 Your important
rights:

(chars left: 2000)

Which do you think are the most important legal rights you own in the films you create? What steps, if any, do you take to protect those rights or publicise them?

4.11 Action taken
against abuse:

Have you ever considered taking (or have you taken) any action against anyone who used your work without the necessary approval?

4.12 Details of
action taken:

(chars left: 2000)

If so, please give details.


	5 Sources of Information on Copyright Law

In this section, we are interested in where you get information about the current status of South African copyright law, either from formal or informal sources.

5.1 Sources of
copyright
information:

(chars left: 2000)

When you have a question or concern about a copyright issue related to a film, where do you go to seek guidance? Please list any websites, individuals, books or other sources you have consulted.

5.2 Difficulty
finding advice:

Do you have trouble finding competent and independent legal counsel to advise you on copyright issues? (tick if yes)


	6 Opinions on South African Copyright Law

Here we want your views on how the copyright law affects your work. Please gives us any examples which are useful to illustrate your answers.

6.1 Impact of
copyright currently:

Copyright overcompensates creators and copyright owners
Copyright undercompensates creators
Copyright appropriately compensates creators?

What is the impact of copyright currently in South Africa?

6.2 Impact of
copyright laws on
roleplayers:

Laws recognise the needs of new creators such as filmmakers to use material without permission
Laws give too much control to copyright owners
Laws give too much flexibility to new creators

What is the impact of current copyright law in South Africa on different role players?

6.3 Impact of
copyright laws on
filmmaking:

Copyright laws encourage the creation of documentary films
Copyright laws discourage the creation of documentary films
Copyright laws play no role in encouraging or discouraging the creation of documentary films

What is the impact of current copyright laws on filmmaking?

6.4 Details of the
impact of copyright
laws:

(chars left: 2000)

Please explain your views on the impact of existing copyright laws.


	7 Recommendations

7.1 Suggested
improvements:

(chars left: 2000)

Outline any ways you think South Africa’s copyright laws might be improved to encourage the production of documentary films?

7.2 International
best practice:

(chars left: 2000)

Give details of any copyright laws in other countries that you believe are more conducive to the work of documentary film-makers than South Africa’s laws.

7.3 Details of
advice you have
given to government:

(chars left: 2000)

Give details of any occasion on which you have been consulted by the South African government on copyright matters, or given your opinion on copyright to the government.


	8 Copyright Knowledge

This section is designed simply to assess the level of “copyright knowledge” among documentary filmmakers.

8.1 Do you know of
fair dealing
provisions in SA:

8.2 Details of your
knowledge of fair
dealing:

(chars left: 2000)

If so, please give details.

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