Fair Dealing, Fair Use, and Documentary Filmmaking

Documentary filmmakers rely heavily on B-roll footage to supplement their storytelling by adding historical context or bridging long voiceover clips. Often, footage is used which was originally created or shot by third parties, like old news clips, historical footage, or photography. Independent filmmakers, especially those lacking support from major studio legal departments, may assume that use of this footage is protected under “fair use” exceptions. However, if a film is produced or distributed in Canada, filmmakers should be aware that this “fair use” doctrine only applies to American copyright law. In Canada, filmmakers must navigate the more restrictive “fair dealing” framework.

Copyright in Canada

In Canada, the Copyright Act protects an owner’s right to prohibit or authorize reproductions of their original and distinctive work. Under Section 13(1) of the Copyright Act, the author of an original work is considered the owner of its copyright. This protection spans literary, dramatic, musical, or artistic works, provided they are the original expression of an idea. Copyright may be transferred to third parties in one of two ways: assignment of full copyright ownership rights, or a license which grants specific, limited rights to reproduce the work without a transfer of full ownership.

Cinematographic works are explicitly protected under section 3 of the Copyright Act. Under Section 34.1(1), the “maker” of the cinematographic work is legally presumed to be the owner of its copyright. As articulated by the Federal Court in Canadian Broadcasting Corp v Conservative Party of Canada, to accompany the statutory definition “cinematographic work”, video recordings qualify as a process “analogous to cinematography”. Thus, if a documentary filmmaker were to use B-roll footage without a license, this could constitute an infringement unless the fair dealing exception applies.

The Exception: Fair Dealing

Under specific circumstances, the “fair dealing” exception at Section 29 of the Copyright Act allows for the use of original work which might otherwise be protected by copyright. Unlike the more flexible American framework, a strict two-step test established by the Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada, and later affirmed in SOCAN v Bell Canada, must be passed for the fair dealing exception to apply:

Step 1: Allowable Purpose

The use of the otherwise copyrighted material must be for a permitted purpose outlined under Section 29 of the Copyright Act: research, private study, education, parody, satire, criticism, review, or news reporting. Section 29.21(1) also clarifies that reproduction for non-commercial or private user-generated content is also not considered copyright infringement, though this would rarely apply to commercial documentary distribution.

For documentarians, use of footage for the purposes of criticism, review, and education is likely to be most relevant. However, they should be aware that under sections 29.1 and 29.2, fair dealing for the purpose of criticism, review, or news reporting only applies if credit is given to both the source and the name of the original owner or maker of the footage. If there is a failure to attribute this B-roll, the fair dealing exception would fail.

Step 2: Fairness Requirement

The actual use of the footage must also be fair. A Court will consider the following factors in an assessment regarding fairness:

• The purpose of the dealing: Is the documentary strictly commercial, or does it serve a broader public interest?
• The character of the dealing: How many copies are produced? How widely will the film be distributed? How does the quality of the footage compare to that of the original use?
• The amount of the work used: How much of the original footage was used in the film?
• Available alternatives to the dealing: Were there other effective ways the filmmaker could have communicated the same message, without the need for copyright infringement?
• The nature of the work: Is the original footage unpublished or confidential, or rather, widely broadcast news content?
• The effect of the current use on the original work: Does the documentary’s use affect the market value of the original footage? Does the use damage the reputation of the original work or its maker?

Application: Criticism and Education

An application of these factors is highly context-specific. If a filmmaker were to argue that their use of the B-roll was for criticism or commentary, the Federal Court affirmed in Canadian Broadcasting Corp v Conservative Party of Canada that “criticism” need not be restricted to criticism of the footage itself. Rather, filmmakers can utilize B-roll to critique the broader social or moral implications of the ideas expressed within that footage.

Similarly, if B-roll is simply used to convey knowledge or train an audience, this would likely satisfy the statutory category of education, provided the footage is instructional in nature, rather than used to persuade the audience to adopt a particular viewpoint.

In Contrast: The American “Transformative” Framework

Section 107 of the United States Copyright Act outlines a more open-ended and flexible framework. In the U.S., courts may consider whether a filmmaker’s use of the footage is “transformative” in nature. If the footage adds new meaning or expression to the original work, this may be sufficient to fall under the U.S. fair use exception. This ultimately leads to a broader application of fair use exceptions for filmmakers.

Canada’s copyright law does not currently include this transformative framework, and thus Canadian documentarians should carefully assess the purpose and manner of their use of B-roll footage to ensure compliance with Canada's Copyright Act. If the use of B-roll does not fit into one of the strict statutory categories at Step 1, it does not matter if the footage was somehow transformed from its original meaning or expression: this is copyright infringement, and the fair dealing exception will not apply.

Disclaimer: This post was prepared by law students at WIPILC. The information provided is for informational purposes alone, shall not be interpreted as legal advice, and is not intended to provide advice or recommendations.