DOC Proposes Documentary Filmmaker Exception to Bill C-11

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Kudos to The Documentary Organization of Canada (DOC), which has released a proposed Exemption for Documentary Filmmakers to Circumvent Technical Protection Mechanisms in Bill C-11. I commend their efforts to do something which is not as common as it could be in Canadian copyright debates: actually proposing statutory language to address their concerns.

The DOC proposal is in response to the "technological protection measures" (TPM) provisions of Bill C-11, which, subject to certain limited exceptions, would make it an act of infringement to circumvent a TPM. Suffice it to say that the TPM provisions of the bill are the most contentious in the draft legislation. DOC argues that incorporating protection for TPMs into the Copyright Act (Canada), and more particularly making their circumvention constitute copyright infringement with no allowance for a fair dealing exception to such deemed infringement, constitute a "serious problem" because they "prevent documentary filmmakers from accessing the materials they need in order to produce their works". The DOC proposal goes into detail about the technical problems faced by documentary filmmakers who wish to make use of, for example, short clips from DVDs for inclusion in their documentaries and who would be forced to employ non-circumventing means to access the clips (basically, they would have to re-film the clip - which is apparently a lot more technically complex, and expensive, than you might have imagined).

This is the text of DOC's proposed "documentary filmmaker" exception to Bill C-11's TPM provisions:

41.1X (1)Notwithstanding Paragraph 41.1.(1)(a)herein, documentary filmmakers, may circumvent technological protection measure in order to incorporate copyrighted material into new works for the purposes of Fair Dealing (outlined in section 29 of the Copyright Act) provided that:

a. The documentary filmmaker is not able to to access the copyrighted material after reasonable attempts to do so and must therefore circumvent the technological protection mechanism; and

a. i) the documentary filmmaker has lawfully obtained the work, the performer’s performance fixed in a sound recording or the sound recording that is protected by the technological protection measure; or

ii) if an orphaned work or a work that is unavailable for purchase to the public that is protected by the technological protection measure, the documentary filmmaker has made best efforts to legally obtain the material; and in all cases

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