Copyright

A Picture is Worth a Thousand Words
If we want to transfer knowledge to others, we normally use language as means of communication. However, words have their limitations. One can describe the smell of perfume or the taste of food. But it is not possible for the reader, by means of words only, to smell the scent itself or to taste the food itself.
A book about filmmaking for example, is quite similar. In many cases words fail to describe certain shots or camera movement. And indeed, as the saying goes, a picture is worth a thousand words.

Integrating Words and Film
With modern technology it is now possible to make a multi media book where you do not just rely on words, but where you can illustrate yout subject by moving images, slides or sound. ABCinema attempts to increase the transfer of knowledge by integration of text and audio visual fragments.

Quotation from Text
In the world of words, quoting someone else’s work is common practice. However, you have to follow some general accepted rules:
– the text source is mentioned;
– the quote is relevant to your argument;
– the quote is no longer than necessary.
The use of more visual elements like a graph or illustration is accounted for in much the same way.

Quotation from Film Excerpts
So, scientists, writers and journalists quote each other’s work and get away with it. And there is no sensible person who will ask money for the quote. But when you want to quote from a film, the big American studios (as right holders) ask $600 for 15 seconds footage. It is clear that such an amount in this context is disproportionate. It actually means that under such conditions a multi media book can not be made.

The law

ABCinema is a foundation to which Dutch law applies. We will discuss the issues of copyright and citation right according to this law.

Copyright
In the Netherlands, both text and (moving) pictures are protected by copyright (auteursrecht). In the Wikipedia there is the following definition of auteursrecht:

Auteursrecht (copyright) is the right of an author (or its right holder) of a work of literature, science or art to determine how, where and when his work will be published or copied. This right originates naturally in the course of the creation of the work: the meaning or mood of the maker is not relevant.

Initially, the copyright was meant for books only. But by a gradual expansion of the scope the right is nowadays applicable in many other fields, such as speeches, software, photographs, films, recorded music, visual art, buildings and journalistic work.

Citation Right (Citaatrecht)
Dutch law also has defined a number of circumstances in which it is allowed to use parts of the work of others without permission. This is called the right to cite or to quote. The Wikipedia gives the following clarification:

When a part of a text, an illustration or other copyrighted work is subject to the right of citation then for publication, there is no permission needed of the copyright owner. In the Netherlands it is allowed to use the works of others in an announcement, review, discussion, criticism or scientific treatise. The main question is: is the quoted material actually used as a quote? In general, the jurisprudence says that the use of the quoted material as ‘clarification’ is allowed.
For example, a typical photo may be shown in an announcement of a photo exhibition (notice), someone can play a piece of a new CD in a radio program (review), a politician who criticises the program of his opponent can use pieces of that program (controversy), and a literature scholar incorporates pieces of poetry into a study on the influence of a famous poet on his contemporaries (scientific treatise). In all these cases the used ‘quote’ clarifies a point that is discussed in the main text of the publication.

Large blocks of text should not be taken as ‘quote’. The quotations should really serve to express an opinion or news item to clarify. Also pictures or written text that do little or nothing to clarify, but which are predominantly used to make the publication more ‘interesting’ or visually more attractive, are not covered by the citation right.

Realization
A recent ruling by the Court of Amsterdam, June 6, 2007, HA ZA 06-3976 on the use of film clips by the TROS brings some clarity in this case. In summary, this is the ruling of the court:

Use of 9 fragments, about three minutes of a documentary in an item of about 6 minutes in a news program, does not constitute infringement, but is subject to the citation right of Article 15a AW

Fair Use
Because ABCinema doesn’t want any trouble about copyright, we also looked at the way the issue is handled in other countries. In most Anglo-Saxon countries the principle of “fair use” is applied. The Association of Independent Video and Filmmakers and other media group endorsed a statement of best practices (2005) defining four kinds of situations when a producer, under the “fair use” provisions of copyright law, need not have permission for using a film clip, a shot of a painting or a snatch of music.

  • “Employing copyrighted material as object of social, political or cultural critique.” Whether the documentary comments directly on the copyrighted material or parodies it, fair use generally applies, the statement says, so long as the producer isn’t just taking the opportunity to use much of the material for free.
  • “Quoting copyrighted works of popular culture to illustrate an argument or point.” The producer uses the material for a new purpose, with proper attribution, and doesn’t take a free ride on the merits of the original, or use more of it than necessary, or use it simply to avoid the expense of coming up with something else.
  • “Capturing copyrighted media content in the process of filming something else.” The producer unintentionally catches incidental sounds or images, such as pop music playing on the radio in the background or a family singing the copyrighted “Happy Birthday” song. Fair use can’t be a cheap way to cop a soundtrack.
  • “Using copyrighted material in a historical sequence.” The producer must show that a certain image, music or speech is crucial to tell a story from history, and there’s no suitable substitute and getting permission to use the work is impossible or excessively expensive compared to the doc’s budget. However, the producer can’t be simply building a doc around the material to exploit it, using more than necessary to make a point, using it without attribution or relying disproportionately on this single source.

How it is applied

General
Film quotes are an integral part of the book. See also the license conditions, section 5. Film quotes are played in the movie player. The maximum size of player is 480×360 pixels. Most clips measure 320×240 pixels. Sounds (including music) that are inherently linked to film quotes are considered to be Fair Use, section 3.

Film Quote
Definition: a link from the text that starts a film fragment from a given starting position to a specified end position. See the illustration below.

Fragment Length and Quote Length
Most of the time, a film quote is usually shorter than the film fragment but never longer.

Playlist
A list of all film fragments with some properties as name, author, year and duration.

Reference to Filmmaker/Director
Every film quote has an appropriate reference to the maker/director. Most of the time the reference is embedded in the text but can always be found in the playlist under the link year. In addition, for every film fragment there is a reference to background information. Usually the reference is an Internet link to a stable site to avoid broken links.

Reference to Right Holder
For each film the legal right holder (if known) is mentioned.

Unlimited Use
A fragment can both be played from the playlist (fragment duration) and from the text (quote length).

Limited Use
A fragment can only be played from the text (quote length). When the length of the fragment equals the length of the quote (or the sum of all quotes) it can also be played from the playlist.

Public Domain
In the Netherlands, the duration of copyright is 70 years. This means that all films made before 1940 belong to the public domain. The copyright is expired. Unlimited use.

Private Films Uploaded to the Internet with Embed Permission.
There are countless private films and film clips roaming on the Internet. In using such content for the book, we always looked for the place where the maker officially uploaded this content.
If found, we only use those films where the filmmaker has explicitly given permission to embed the content on the website of the viewer. This does not necessarily mean that the content has been downloaded from that upload site.
An embedded link from the book to the upload site would then be sufficient. However, such an embedded link raises the problem of source conservation. The filmmaker may decide to remove his uploaded movie from the Internet. It such a case, the source disappears (broken link). In order to avoid broken links, the source is preserved by downloading the content. Under the year link of the playlist there will always be a link to the official upload site (as found at the time of writing). However, it is not guaranteed that the content is still on this site. Unlimited use.

Industrial Films Uploaded to the Internet
Unless covered by the public domain, we assume that these films are copyright protected. In the book we will quote from these films. The length of the quote depends on the context. For each fragment it is, to the best of our knowledge, checked whether the quote satisfies the criteria listed under Citation right and Fair Use. Limited use.

Doubtful Cases
There are films, especially documentaries, whose status is not entirely clear. These kinds of films are available on sites such as
– http://www.moviesfoundonline.com (e.g. The Godfather and the Mob)
– http://video.google.nl (e.g. The making of The Shining).
We assumed that these kind of films are also copyright protected. Limited use.