Copyright Guide for Film Students

Sheridan students should be aware that when they work in the film industry, they can consult with a lawyer and obtain errors and omissions insurance to try to protect themselves against infringement claims. These resources are important in a situation when they are relying on fair dealing to use a copyrighted material. As a student, you likely don't have access to these resources so you may run into the risk of not being able to show your film at festivals where copyright clearance is required in many cases. Also, there are potential financial and legal risks when using a copyright work without permission. If in doubt, you should obtain permission to use a copyrighted material or a copyright free/friendly resource as an alternative. 

Fair dealing is an important user right for film and documentary makers to be able to use copyrighted materials and tell an authentic, compelling story in their own films. Sometimes, it is not feasible to obtain permission due to factors such as cost or inability to locate the rights holder.

Under Section 29 of the Copyright Act, fair dealing permits using a copyright protected work for the purpose of research, private study, education, parody, satire, criticism, review, or news reporting. Fairness of the use also has to be considered based on 6 factors established by the Supreme Court of Canada:

• Purpose - For example, is it for a commercial or educational purpose? 
• Character - How is the material copied dealt with? In this context, the film industry's custom or practice with using similar material may be considered. 
• Amount - Both quantitative and qualitative aspects would need to be considered. Is the amount used reasonable for achieving the intended purpose? Is the part copied considered to be the essence of the work? For example, it may be more fair if you are copying just the film clip that pertains to what you are trying to critique. It may be less fair if you are using a song because it helps to set the tone of the film but the film is not about the subject of the song used.  
• Alternative - Is there an alternative to copying the material? For example, can you comment on the material without copying the material in the film? Can you use other materials such as public domain images or clips instead? 
• Nature of the work - It may be less fair to use a confidential or unpublished work. A court had previously mentioned that it would be more fair if the reproduction serves a public interest or leads to a wider dissemination of the work for the advancement of knowledge. For example, if the film is analyzing the private life of a famous person, it may be fair to include an unpublished letter that shows an important unknown aspect of them. 
• Effect on the work - Does the use affect the market value of the original work? For example, copying a significant amount may compete with the original work. However, the Supreme Court of Canada mentioned that the commercial effect is not a conclusive factor and should be weighted with the other fair dealing factors. 

Fair dealing is evaluated on a case-by-case basis. Note that fair dealing in Canada is different from fair use in US where the factors for evaluation are different.

• Evaluating fair dealing is a judgment call and challenging to ascertain in many situations.
• If there is a digital lock on the material (e.g. digital music that would only play on certain platforms) that you would need to break or circumvent in order to copy it, you would not be able to use fair dealing under the Copyright Act.
• If you obtain or purchase the material under a licence, which is often the case with digital content, the licence terms and conditions would supersede fair dealing. Be sure to review the licence to see whether you can copy and use the material for your purpose and whether derivative works are permitted.  
• A copyright holder may not agree with your fair dealing interpretation and decides to pursue the legal options available (e.g. a cease and decease letter or lawsuit) to assert their rights. 
• Insurance providers and film festivals may not accept your fair dealing defense without a lawyer's legal opinion that supports your claims (see more information on "Errors & Omissions Insurance").