On Wednesday afternoon, I attended a panel about copyright law for filmmakers and educators, that was part of a fascinating conference-within-the-festival, on media education, policy, and the role of filmmakers in developing media literacy.

Wersteeg Wigman Sprey, Dutch lawyer led off the discussion called “Copyright in the Balance” with an overview of the European legal context. I learned that in Europe there are both national copyright laws and European conventions that influence copyright decisions. The Europeans have been working on “the harmonization of certain aspects of copyright and related rights in the information society” and “did harmonize aspects of copyright in 2001.”

I wonder if this means that European policy makers are grappling more consciously with the confusions of copyright law than their counterparts in the U.S., where filmmakers including myself seem to live in a state of fear and confusion concerning copyright, privacy law, and trademark.

This is an issue that I have been thinking about for some time. I attended a great (free!) session at the IFP conference [1] in New York a few months back, featuring Pat Aufderheide from the Center for Social Media at American University. Hs group has been doing essential work creating a set of common best practices for filmmakers, empowering us to have a clear view of copyright law on our own terms. The center's work is a real service to filmmakers by articulating the different players—from lawyers to broadcasters to E&O insurance agents—and how each of these gatekeepers makes their decisions. I hope their best practices will be adopted as a guidelines recognized by all.

Back at the Rotterdam panel, I realized the Dutch could really benefit from these guidelines, so I mentioned them to Sprey, the Dutch attorney and sent him an email with the link [2]. In the final wrap up conversation of the conference, another American woman mentioned the work of the Center for Social Media, and explained it very clearly to the entire group. These moments are the times when international conferences feel truly worth the gathering of people in real time and in the same space—when we can share positive advances across different cultures and societies. I hope we’ve made some inroads to help the Europeans avoid heading deeper into the American direction of litigation fever. Something I didn’t hear Sprey mention was E&O insurance, and I forgot to ask if this construct exists in Europe.

I remember the Center for Social Media folks talking about the tension between First Amendment and copyright. Copyright law really exists to protect our First Amendment rights, at the same time that it asks us to be careful about how we include others’ creative expressions in our products. It is a negotiation between the boundary of self and other, a challenge to distinguish one’s own creative voice from the creativity of the other.

Being quite ignorant of European constitutional history, I asked what is the equivalent of the U.S. First Amendment? The Europeans follow Article 10 of the European Convention on Human Rights, which protects the free flow of information.

At a certain point, the attorney Sprey also mentioned the concept of moral rights," which he humorously described as meaning that “you don’t have to get your work buried under a pile of dirt.” Later he explained to me that doctrine of moral rights are outlined in the Berne Convention, an international copyright convention the Americans lagged in joining. Moral law protects copyrighted material from being negatively misrepresented. It sounds to me something like libel law-, but covering creative product, instead of identity.

I don’t know as much about copyright law as I’d like, but I think it is very important that independent filmmakers educate ourselves on the complexities of the issue. Copyright law exists to protect our intellectual property and, in the age of digital reproduction, it becomes a new and very difficult task to make sure that our work protected. Documentary filmmakers are in the unique position to be both protectors of our work, and potential exploiters of others’. I try to teach my students to not use copyrighted music, not only because I want them to be free of legal exposure, but also because it is lazy filmmaking to rely on the power of another artist's work instead making something entirely new. The idea of a creative commons is great, but we must also be able to financially support ourselves and our creativity with our own individual achievements.

I’ve been playing with the idea of creating footnotes on my film that would be visible as a DVD feature. I want to recognize all the creative influences on my work that I can, and I also hope this will inoculate me from any possible litigation down the road. A conversation about intellectual property is always going to strike some filmmakers as boring. Who wouldn't rather think about meaning and form? But the simple fact is that copyright law is always a part of the conceptualization of our work.