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DMCA Exemption Has Been Approved for Documentary Filmmakers

By KJ Relth

If you've ever needed high-definition footage off of a Blu-ray or DVD, you might be aware that the images you are trying to access are protected by something called the Digital Millennium Copyright Act (DMCA). Passed in 1998, the DMCA was Congress's attempt to update copyright law to better apply to the digital age. Among other things, this act makes it illegal to "rip" footage off of DVDs and Blu-ray discs. This law blocks a filmmaker's ability to make fair use with copyrighted footage by restricting access to such digital material stored not just on DVDs, but also on Blu-ray discs and digital streams.

Luckily, Congress recognizes the danger that the DMCA poses to fair speech, fair use, and other lawful uses of copyrighted material in documentary filmmaking. Thanks to a special process created by Congress, the Librarian of Congress now grants specific exemptions every three years.

The IDA is very excited to share that the latest exemption was granted, including the ability to access Blu-ray and digitally transmitted video (footage obtained from a streaming site such as Netflix). This effort was spearheaded by the UCI Intellectual Property, Arts, and Technology (IPAT) Clinic and Donaldson + Callif, LLP on behalf of Kartemquin, the Center for Independent Documentary, the National Alliance for Media Arts and Culture (NAMAC), Women in Film, Film Independent, and the IDA. This now means that documentary filmmakers interested in making fair use of footage obtained through encrypted material will be able to do so without legal recourse through October 2018.

"This is an important day for documentary filmmakers because without access, there can be no fair use," said Jack Lerner of the UCI Intellectual Property and Technology Law Clinic. "Technological locks on cultural materials prevent filmmakers from examining our own culture and society. In so doing, they create a real threat to freedom of expression."

"Today's rule protects and expands important fair use rights for documentary filmmakers, improving their access to the high definition source material that modern distributors demand," said Aaron Benmark, law student from the UCI IPAT Clinic. "This rule would not have been possible without contributions and testimony of hundreds of filmmakers, including many members of the International Documentary Association. It shows the power a coalition of public-minded artists can wield to improve artists' rights in Washington."

These exemptions do not come easy. Over the course of the past year, the UCI IPAT Clinic, along with Donaldson + Callif, collected over 250 statements from filmmakers working across the United States in the fields of narrative and documentary to bolster their case for the exemption. Your testimony helped underscore how critical the art of filmmaking is to our culture and democracy.

Now the bad news: While the new rules apply to documentary filmmakers, the Librarian of Congress did not expand these exemptions to narrative filmmaking. Even films that depict historical events (think Selma and other recent releases) were left out of consideration from this exemption.

As the line between narrative and documentary film becomes increasingly blurred, and as narrative movies increasingly deal with real world issues, the need to make fair use of encrypted material in the "fiction" world has become more necessary. Fun fact: four of 2015's Best Picture contenders at the Oscars – The Imitation Game, The Theory of Everything, Selma, and American Sniper – were biopics, portraying stories of real people and real-life events. Without the ability to make fair use of encrypted footage, these filmmakers might face legal recourse in the pursuit of making their best possible art. Stay tuned for how the UCI IPAT Clinic and Donaldson + Callif will push for the inclusion of narrative filmmakers in the exemption during the 2018 hearings.

In short, this new ruling is a huge victory for documentary filmmakers. But keep in mind that the evolution of footage quality in the digital age happens more quickly than the current three-year exemption process might allow. By the time the next hearing comes around in 2018, the footage standards discussed in the previous round will be outdated in ways we can hardly imagine.

For more details, please read the official ruling.