Europe drafts documentary guidelines

Project to help filmmakers with legal obstacles

By IAN MUNDELL

BRUSSELS -- Making a documentary can be a frustrating experience, with clearances for music, film clips and other visuals getting projects stuck in legal limbo for months at a time.

Now, a project to draft fair use guidelines for European documentary filmmakers is underway, inspired by the success of a similar U.S. initiative. The European producers and directors involved hope establishing guidelines will help reduce costs and remove other barriers that regularly derail or delay docu projects.

The problems U.S. documakers face with charges and legal restrictions on using other people's images or music in their films, even when captured incidentally, are made worse in Europe by variations in copyright law between countries.

In France, for example, any fragment of music in a film must be cleared with the rights holder, while in Germany small music "quotations" need no permission. There are also differences over the treatment of still and moving images, and whether or not works can be "quoted" in full.

The European project begins with a survey of current practice in documaking, launched last week at the European Media Event in Brussels. This asks questions about the problems experienced by documakers and how far they would let others go in using their material without permission.

The results will be boiled down into draft guidelines on what is fair from both points of view. These will be presented at Hot Docs in Toronto in April, where discussion will link to a similar movement in Canada.

Final guidelines will be presented at the doc fest in La Rochelle, France, in June. As far as possible, they will line up with those Stateside.

Plan is also to recruit media lawyers across Europe to support directors who want to test the guidelines, and establish a fund to back any legal challenges. However these are confidence-building measures rather than fighting talk: The U.S. experience is that the guidelines rarely go to law.

"If everyone agrees that a fair incidental use is, say, five seconds, and you use that, who is going to take the risk of suing you?" asks Marcello Mustilli, a lawyer involved in the project. "Not being sued is better than going to court."

The guidelines also give documakers a solid backing in negotiations over error and omissions insurance, and with broadcasters over the risks of using uncleared material.

Marco Visalberghi, vice president of Italian documentaries association Doc IT, insists that the initiative is not anti-copyright. "Each of us is a producer and we would like to make some money from time to time," he says. "But we would also like to live in a place where our work is possible."

In the longer term, the project hopes to draft detailed legal advice on harmonizing European copyright law.