Visible Rights Copyright Compendium

=How can this Guide help me? =

Objective of this document is to provide a concise Guide to the management of Copyright in Films. It provides a set of easy to follow instructions that clarify issues of rights-ownership at the stage of a Film collection, in order to maximize the possibilities and minimize the costs of reuse at a subsequent stage. The problem of rights management and documentation is closely related to that of the licensing of Films. Releasing Films becomes increasingly difficult in re-use cases that require the acquisition of rights additional to the ones an archive or other Film collection already holds. A Film often arrives at an archive in an analogue form as part of a physical carrier (e.g. a reel) or as a digital copy of the original work that is again contained in a physical carrier (e.g. hard drive). The grant or deposit agreements associated with such material often only cover the deposition of the physical copy or provide limited rights with regards to the possible uses of the work. As a result, the archivist is not able to properly document the relevant material or take decisions with regards to possible ways of releasing the work. In addition, when an instance (copy) of a Film is requested by a researcher or another re-user, the costs for clearing the relevant rights exceeds any licence fees required to obtain the Film. This Guide addressed this problem by suggesting a specific set of actions that the Archivist should perform in order to ensure that the maximum amount of rights over the Film is collected or the relevant rights information is in place so that the content may be easily reused. Such series of steps is complemented by a set of essential information that needs to be recorded in order to take decisions at each stage of the process. Finally, the key types of licences related to the release of a Film are presented and analysed on the basis of the rights that an Archive or other collection of Films has acquired and is able to release. The primary goal of this Guide is to provide a rights toolkit addressed primarily to managers of Film collections, but also to Film re-users, particularly researchers and producers. It follows a two tier approach, where it allows better decision making both at the stage where the content and the relevant rights are acquired (Rights-IN Stage) and at the stage where the content is licensed under different terms and conditions to different types of (re)users (Rights-Out Stage). By giving particular emphasis on the stage of Rights-In, both in the sense of documenting the relevant legal information (e.g. rights-holders, original authors, relevant licensing framework etc) and by obtaining the relevant rights or permissions, the visibility of the relevant rights is increased and the costs of the Rights-Out stage are dramatically reduced. Thus, the guide provides both a set of tools for documenting the rights status of Films and for taking proper decisions with regards to the rights acquisition and release of the material.

=Who can use this Guide?=

This guide is addressed to: - Archivists - Collectors and managers of MIM collections - Researchers - Producers - Other re-users of MIM

=Key Copyright Concepts and Terms=

What is Copyright?'
Intellectual property (IP), of which copyright is a part, is a system of interconnected legislation that protects the creative output of the mind. Copyright doesn’t have to cover ‘creative’ works – only original ones. Copyright is the area of intellectual property concerned with literary works such as novels, poems and plays, films, musical works, and artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. This website offers advice on copyright and related rights .The related rights include those of performing artists in their performances, producers in their recordings, and broadcasters in their radio and television programmes. A leading textbook in IP calls performance rights and database rights ‘rights akin to copyright’.

Copyright law grants copyright owners (also referred to as copyright holders) a set of exclusive rights where the default position is that users must ask permission unless covered by an exception in the Act.”

What are the restricted acts under the UK Copyright Law?
These are acts that may be performed over a work only after the rights-holder has provided the relevant permissions. They include the following acts:
 * Copying the work
 * Issuing copies of the work to the public (the ‘distribution right’)
 * Performing, showing or playing the work in public
 * Renting or lending the work to the public
 * Communicating the work to the public
 * Making an adaptation of the work or doing any of the above acts in relation to an adaptation

What is the difference between a copyright holder and an (original) author? The author is the person that has created the work and the original rights-holder over the work. However, in most cases the author transfers or licenses such rights to the rights-holder.

What is a copyright work?
“A copyright work is an original literary, dramatic, musical or artistic creation and each work created must fit one of these categories as listed in the table ‘ Categories of works and periods of protection ’ and meet the criteria as a qualifying copyright work as defined in the Act. This also applies to sound recordings, films, broadcasts (including websites) and typographical arrangements of published works.”

What are the key Copyright provisions that are relevant for a Film?
The relevant Acts in determining copyright for UK-made moving image works to be shown in the UK are the Copyright Acts of 1842,1911 and 1956 and the Copyright, Designs and Patents Act of 1988 as amended

Why should I care about different Copyright Acts?
UK copyright law governing the use of moving image works is dependent upon a work’s date of creation. This date is defined differently in each copyright period, as detailed below.

What is fair dealing?
“In order to try to achieve balance and to enable fair use of an ‘in copyright’ work, the Act provides a series of ‘Permitted Acts’. Works ‘in copyright’ can be used under the auspices of these Acts, although it should be borne in mind some uses may be challenged; e.g. use of ‘in copyright’ works for the purpose of criticism or review.

Fair dealing is permitted in relation to copyright works for a number of purposes. What is fair is a question of degree, given the reason the copying has taken place. There is a balance to be drawn between the conflicting interests of the parties: the copyist must be allowed to take sufficient material to allow, on objective analysis, his/her point to be made, but what is taken must be reasonable and appropriate.”

What is a licence?
“The formal authority to do something that would otherwise be unlawful. In this context, it refers to a licence by the owner of IPR to copy, adapt, etc., content or technology even though copyright law prohibits such copying without authorisation. Unlike assignment, the owner of the IPR remains its owner and, depending on the terms of the licence, may be able to continue to do whatever they like with the IPR”

What are the differences between open and all rights reserved licences?

 * An All Rights Reserved or “closed” licence is one that provides only very limited rights to the recipient of the licence and only to the extent that a fee is paid to the licensor. Closed licences, normally do not allow re-use or free copying and adaptations of the licensed work without additional licensing by the licensor.
 * A Some Rights Reserved or “open” licence is one that provides a more extensive set of rights to the licensee and without requesting a fee. Open licences range from licences such as Creative Commons Zero that waives all rights over the licensed material to Creative Commons Attribution NonCommercial No Derivatives which does not allow commercial uses of the work, the making of adaptations of the licensed work and requires attribution in the manner the licensor has stipulated.

=How can I approach the problem of managing rights over MIM?=

The management of copyrights over MIM is of particular importance as it is a condition for legal handling such material. As indicated from the previous sections, most of MIM is potentially copyrighted and hence we need to be able to manage the right subsisting in such material. In order to maximize the benefits from handling rights over MIM, it is very helpful to think in terms of three different types of flows as well as of two stages in their management process.

Understanding a rights management along the lines of three distinct flows, i.e. flows of rights, content and value, ensures that we clearly focus on specific aspects of the value creation process and ensures we have a clear model of understanding how value is produced in any given context of a Film collection. These three flows do not necessarily follow the same path. For instance, content may be expressed in the form of a specific instance of a work that is originally provided in the form of an analogue copy, it is then digitized and is finally made available to the audience through a streaming service. The rights may have been acquired not through the original depositor but through a rights management agency or the estate of the director that holds the rights of the content. Finally, the value may be produced as a result of licensing-out through any form of delivery service and it will normally follow the opposite way from the flow of rights and content: as rights are licensed out, value will flow in, in a monetary or other form. The more the information obtained during the Rights-In stage is, the more the options regarding Rights-Out will be. If, for instance, we have a good understanding of the rights subsisting in footage filmed during the 1930s, we will be able to decide whether the content will be released under a licence (that is if it is under copyright) or it will be marked as a Public Domain work (e.g. by using a Public Domain Mark).

=Rights-In Stage=

The rights-in stage is the most critical for the success of any rights clearance project as this is the stage where we need to have either all possible permissions in order to perform different actions over the protected material or to have the necessary information in order to obtain the required permissions at the lowest possible cost at a subsequent stage. As identified at the outset of the project, the main issue with the vast majority of audiovisual content is that there is no clear understanding of the rights status at the stage of licensing and, hence, the costs of identifying the rights holders and obtaining the right permissions are disproportional of the revenue produced by a specific piece of audiovisual material.

The “golden” rule for any type of material is that the rights that enter the organization that manages the content should not be less than the rights that are licensed out. While this seems a simple rule, it is not very frequently observed. The most frequently quoted reasons for not being able to adhere to the rule of rights-in vis-à-vis rights out relate to the material for which the rights-holder cannot be traced and which do not have great commercial value. These are cases of individually low but collectively high risk and are one of the key aims of the project.

The decision tree presented in Figure 3 represents the core steps in identifying the status of the work at the Rights In stage. More specifically, when the content arrives at an organization managing MIM, we need to go through the following stages: a)	Public Domain Assessment (PDA): during this stage we need to assert whether the work is in the public domain or copyrighted. The PDA also includes an assessment of the applicable copyright act (Applicable Copyright Act Assessment (ACAA). b)	Fair Dealing Assessment (FDA): during this stage we examine whether a particular act performed by the user of the material falls within the acts that may be performed without requiring permission from the rights holder. This is an assessment that cannot take place during the Rights-In stage, as this is contingent upon the use of the work. c)	Licensing Assessment (LA): during this stage we examine the licences or contracts under which the content has been provided to the MIM collection Each one of these categories requires special treatment and for each one of them a different set of information needs to be recorded. For instance, with regards to the Public Domain Assessment we need to have information related to the dates of death of the author

Public Domain Assessment
The information which is required in order to make the assessment at this stage is the following:
 * Regarding the author of the Film, any of the following information would be relevant:

(a)	Principal Director

(b)	Author of Screenplay

(c)	Author of Dialogue

(d)	Composer of the Music specially created for the Film


 * The date of death of the author (or birth if she is still alive)
 * A series of dates with regards to the Film:
 * Date of creation
 * Date of publication (first release)
 * Date of communication to the public

If these three elements are available, the general decision tree of Figure 4 may be applied:

Applicable Law Assessment
UK Copyright law is defined by a series of Copyright Acts that are applicable depending on the date of the Film creation or publication. In this context. These dates, complemented by the dates of the principal Director’s date of death gives us a good understanding of the applicable copyright act and consequently the extent to which a Film is in the Public domain or not. The following diagram shows the relevant decision tree:

=Where to Begin=

There are two crucial details required to determine the copyright situation of a moving image work: who made it, and when it was made. Neither piece of information is straightforward. Here are some tips and tools for uncovering these details:


 * Start in your own back yard. The common assumption regarding research is that everything can be found by simply typing a keyword into Google. This should never be your starting point. While internet search engines can often be a powerful tool and a useful fall-back resource, rights research can often be much more complex, particularly when dealing with the multiple technical issues that archival moving image materials pose.
 * First of all, gather as much information about the film in question that you have available to you, both from the mi object itself and in your own records.
 * Do you have donor records or any other supporting paperwork? Any records that might provide leads on your organisation’s database?
 * If your records do not reveal who made a film, you may still find information on the material itself. Does the item carry any on-screen credits regarding the maker? Is it unedited amateur footage (see Appendix 1) – and therefore carries no credits – or is it a professional, or semi-professional, work with credited production crew? If the material is on celluloid film stock, check the leader (unprinted protective film strip) at the head and tail of the film - perhaps the filmmaker has scratched or written his or her name there. Amateur film was often sent away by post for processing: do you have the box in which it was returned, including the maker’s name and address?
 * If no date has been recorded, again there may be clues on the physical item. Information on how to date film and video is given in the Screen Heritage UK Moving Image Handbook. Watching the film may have a wealth of clues – civic events that can be cross-checked with newspapers, theatre advertisements and car registrations are particularly useful here.
 * Legal authorship of a work depends on the date on which it was made. For material made since 1 July 1994, the authors and first owners of copyright of a cinematic work are the producer and principal director of the film. (This legislation brings the UK into line with the rest of the EU). The principal director and producer are treated as joint authors except where they are the same person.
 * Prior to 1994 the position is less clear cut as both the 1956 Copyright Act and the 1988 Copyright Act (before amendment) held that the author was “the person by whom the arrangements necessary for making the film are undertaken”. This is a question of fact in each case. Post to the 1956 Act (or more precisely when it took affect ie 1/6/1957) cinematic works were protected as dramatic works, or if non-fictional as a series of photographs. The author was not defined but is generally held to be one, two, three or four key contributors to the work. They are: the director, the producer, the cinematographer (the person who directs the camera work) and the script writer (this can even include a ‘shooting script’, rather than conventional screenplay). Each of these people own a share of the work’s copyright. If the film work is either a professional or semi-professional production, these roles are likely to be included in the credits.
 * Prior to 1/6/1957, therefore, a moving image work may have up to four original copyright holders. It is important to stress “original” here however; it must always be remembered that the original copyright owner is the author or joint authors as just outlined, but often by virtue of contract these rights have been assigned to another individual or company.
 * If no date has been recorded, again there may be clues on the physical item. Information on how to date film and video is given in the Screen Heritage UK Moving Image Handbook. Watching the film may have a wealth of clues – civic events that can be cross-checked with newspapers, theatre advertisements and car registrations are particularly useful here.
 * Legal authorship of a work depends on the date on which it was made. For material made since 1 July 1994, the authors and first owners of copyright of a cinematic work are the producer and principal director of the film. (This legislation brings the UK into line with the rest of the EU). The principal director and producer are treated as joint authors except where they are the same person.
 * Prior to 1994 the position is less clear cut as both the 1956 Copyright Act and the 1988 Copyright Act (before amendment) held that the author was “the person by whom the arrangements necessary for making the film are undertaken”. This is a question of fact in each case. Post to the 1956 Act (or more precisely when it took affect ie 1/6/1957) cinematic works were protected as dramatic works, or if non-fictional as a series of photographs. The author was not defined but is generally held to be one, two, three or four key contributors to the work. They are: the director, the producer, the cinematographer (the person who directs the camera work) and the script writer (this can even include a ‘shooting script’, rather than conventional screenplay). Each of these people own a share of the work’s copyright. If the film work is either a professional or semi-professional production, these roles are likely to be included in the credits.
 * Prior to 1/6/1957, therefore, a moving image work may have up to four original copyright holders. It is important to stress “original” here however; it must always be remembered that the original copyright owner is the author or joint authors as just outlined, but often by virtue of contract these rights have been assigned to another individual or company.
 * Prior to 1994 the position is less clear cut as both the 1956 Copyright Act and the 1988 Copyright Act (before amendment) held that the author was “the person by whom the arrangements necessary for making the film are undertaken”. This is a question of fact in each case. Post to the 1956 Act (or more precisely when it took affect ie 1/6/1957) cinematic works were protected as dramatic works, or if non-fictional as a series of photographs. The author was not defined but is generally held to be one, two, three or four key contributors to the work. They are: the director, the producer, the cinematographer (the person who directs the camera work) and the script writer (this can even include a ‘shooting script’, rather than conventional screenplay). Each of these people own a share of the work’s copyright. If the film work is either a professional or semi-professional production, these roles are likely to be included in the credits.
 * Prior to 1/6/1957, therefore, a moving image work may have up to four original copyright holders. It is important to stress “original” here however; it must always be remembered that the original copyright owner is the author or joint authors as just outlined, but often by virtue of contract these rights have been assigned to another individual or company.
 * Prior to 1/6/1957, therefore, a moving image work may have up to four original copyright holders. It is important to stress “original” here however; it must always be remembered that the original copyright owner is the author or joint authors as just outlined, but often by virtue of contract these rights have been assigned to another individual or company.

Further detail on copyright for specific types of film is given below.

=Copyright Clearances for Amateur Film=


 * In local archives, many moving image holdings are amateur works, such as home movies, that depict events, persons, customs and locations of local historical interest. If a piece of footage is unedited and shot by an amateur then it is very likely it has only one author, since the filmmaker takes on the roles of directing, producing, operating the camera and composing the order of shots (in a sense writing the film’s structure, even if it may be, as is usually the case with amateur films, that the shots were taken in no premeditated sequence).
 * In this instance, the simplest way to clear permission to make the film publicly available is to attempt to contact the filmmaker directly, if still living, to obtain permission in writing. A suggested template agreement to be signed by both parties is included in Appendix 3.
 * If you do not have contact details for the filmmaker in your records, then the first place to look for clues that might lead you to a rights holder or their estate is in your donor files.
 * If you have the donor’s contact details, then telephone, email or write to them. If you are lucky, the donor will also be the rights holder, either the filmmaker themselves or perhaps the beneficiary of the filmmaker in a will. If not, the donor may be a family member or friend who might be able to put you in touch with the filmmaker, the filmmaker’s family or his/her estate. It is most often the case, however, that the donor is not the owner of the rights and you will have to keep searching.
 * If you have no donor records (or the donor records have not produced a rights holder), but you know the name of the film’s maker there are various ways of tracking the maker down: probate service (if deceased) or via electoral register. Details of where to find these are included in Appendix 2.
 * Another line of enquiry that should be pursued is checking your own database or paper records of any screening bookings that may have previously taken place. Is there any record of a person having been contacted for permission?
 * Talk to your colleagues. You may be aware of an archivist with some expertise in the area that your film covers - perhaps they have been in touch with persons connected to the film.
 * If you have no donor records (or the donor records have not produced a rights holder), but you know the name of the film’s maker there are various ways of tracking the maker down: probate service (if deceased) or via electoral register. Details of where to find these are included in Appendix 2.
 * Another line of enquiry that should be pursued is checking your own database or paper records of any screening bookings that may have previously taken place. Is there any record of a person having been contacted for permission?
 * Talk to your colleagues. You may be aware of an archivist with some expertise in the area that your film covers - perhaps they have been in touch with persons connected to the film.
 * Another line of enquiry that should be pursued is checking your own database or paper records of any screening bookings that may have previously taken place. Is there any record of a person having been contacted for permission?
 * Talk to your colleagues. You may be aware of an archivist with some expertise in the area that your film covers - perhaps they have been in touch with persons connected to the film.
 * Talk to your colleagues. You may be aware of an archivist with some expertise in the area that your film covers - perhaps they have been in touch with persons connected to the film.

In all cases we strongly recommend that you document the steps taken to identify a rights holder. In case of dispute, you will be able to use these records to demonstrate that you have shown ‘best endeavours’ in trying to clear a work for use (see Appendix 1 below).

=Further Conditions Affecting Copyright=

Sponsored documentaries

 * If the film you are hoping to clear is a sponsored production such as an industrial or charitable documentary, then the rights holder will almost certainly be the sponsor, rather than the production company or filmmakers who made the film.


 * The reason for this is that the sponsor will have been the financier and the entity in whose interest the film has been made. Therefore, typically the sponsor contracts a company, often one set up temporarily, to make the film on their behalf. Normally, the contracted party relinquishes all rights in their contribution to the contractor. This is a standard clause that employees commonly find in their contracts with their employers.


 * If there is a credited sponsor on the documentary you want to clear/licence they should be contacted in the first instance.


 * More mainstream companies and charities (such as BP, Shell or NSPCC) can be easier to find, whereas some might be more obscure. Check the Companies House online database (there is a ‘Webcheck’ service on their home page) to find out if a company is still reporting its accounts or has been dissolved. The Charity Commission also has an online database where you can find out whether a charity is still active or has ceased operations; see Appendix 2 for details.

Distributors and sales agents

 * Many commercial feature films (usually those that have received theatrical distribution) are represented by a distributor or a sales agent.


 * For older titles, ownership can often change hands as sales agents acquire rights for particular libraries.


 * It is unlikely that your archive will have the original negatives of a commercially distributed feature film. If you do make such a discovery the film should be in the care of the BFI National Archive (if it is a British production). If so, contact the BFI’s curatorial department in the first instance - www.bfi.org.uk/nationalarchive.

Soundtracks

 * If a film is a professional production (or sometimes an amateur work, particularly later works made on video), it may have a soundtrack. If this is the •	case, there will be additional copyright issues if the film was created prior to 1/8/1989. (The film soundtrack is considered a distinct work from the cinematic work prior to 1/8/1989 as the 1988 Copyright Act merged the soundtrack into the cinematic work). You should try to find out whether the soundtrack composition was specially commissioned for the film production and therefore would probably have been licensed for inclusion in the work ‘in perpetuity’ (forever); or whether the composition pre-existed the film and was therefore only licensed for a specific release window, on which basis you must assume that the film rights to the soundtrack have expired and would need to be re-licensed with the rights holder. In this case, you may also need to licence the recording as well as the composition; see below.


 * If you don’t have the original paperwork (contracts) pertaining to the film, then you should try to ascertain whether the soundtrack is a known (eg commercially released) piece of music, or whether it is an otherwise unknown work specially composed (and ‘synchronised’ to the film – see glossary). It is safest to assume you don’t have the rights to the soundtrack and will need to licence them from the composer or the composer’s estate.


 * It is possible the composition (‘publishing rights’) may be represented by PRS/MCPS (the Performing Rights Society, who collect royalties for broadcasts (as well as radio or TV, this includes making available via streaming and/or downloading services online) on behalf of composers; and the Mechanical Copyright Protection Society (MCPS), who collect royalties for publishing rights in a physical product, such as a DVD, CD or theatrical film release on behalf of composers). If so, you will have to pay royalties to the relevant Society for a licence.


 * If the music is a composition by a long dead composer, such as Mozart or Bach, the publishing will be out of copyright and you will only have to clear the re-performance (see Musicians’ Union, below) and recording of the composition.


 * If the soundtrack was ‘bought-in’, i.e. it was an existing recording synchronised to the picture track, then you will need a licence for the sound recording, in addition to the licence for the composition. First try PPL (Phonographic Performance Limited), a society similar to PRS-MCPS, and if you cannot licence via them then you will need to go to the record company (eg, Columbia, Warners, EMI) that commercially released the recording.


 * One final clearance you may have to make regarding the soundtrack is the performance of the musicians. This should be done by arrangement with the Musicians’ Union. Check with the rights holder to find out if permission and/or a licence is needed for the musicians who play on the soundtrack recording.

Orphan Works
A 2009 survey by the Joint Information Systems Committee (JISC) estimated there to be at least 25 million ‘Orphan Works’,the number including all types of works ie works known to be within the period of copyright but where the assumption is that there is no traceable copyright holder.

If you have no traceable donor and there are no records of who made the film (or the filmmaker is untraceable) then the item may be reasonably considered an Orphan Work. In this case, you may decide to make the film available on the understanding that it is an orphan – at your organisation’s own risk. You must keep detailed records of your ‘best endeavours’ (see Appendix 1) to trace the rights holder in case someone with a claim on the work comes forward. When using an orphan work, it is good practice to include a note stating that the rights holder of the work is unknown, but that the organisation would be pleased to hear from anyone claiming rights in the film; contact details should be provided.

It should be noted that, despite numerous reviews suggesting changes to the law (eg Gowers Review 6/12/2006) at present the use of an orphan work is in breach of copyright and the owner of such copyright has the right to stop you using such material, demand payment of a reasonable royalty for such use and may arguably be entitled to more significant damages if you have materially damaged their potential commercial exploitation of their work. Any organisation making use of an orphan work must consider what a reasonable royalty for use might be and the value of potential commercial exploitation when considering the level of organisational risk involved.


 * An Orphan Work is an assumption that requires proof. It has no legal protection and so the only defence an archive can use for exploiting such a work is exhaustively-documented best endeavours (see Appendix 2).


 * Best endeavours could be a potentially limitless process so you may wish to apply limitations to the staffing and resources you invest in such efforts before you decide to take a risk on making the work available.


 * The following is a quote from ‘In From the Cold’ a report by JISC on “the scope of ‘Orphan Works’ and its impact on the delivery of services to the public”:

Apart from a managed approach to risk, the undertaking of ‘due diligence searches’ is a practical response by many public sector bodies across the UK to the scope and scale of Orphan Works, particularly in the contexts of publishing and online public access. Paper and/or digital records are kept of searches across the public and corporate sectors which show that reasonable efforts have been made to trace rights holders, often referred to as ‘due diligence’. Searches might include examining the original object, checking acquisition files or related paperwork, searching for clues on the internet and/or checking with professional contacts. Whilst these efforts are useful to show that any subsequent use of the work has been made in good faith, could aid defence if challenged and may occasionally yield contact details, they hold no legal certainty and present risk for public sector bodies. Due diligence is also time consuming, resource intensive and may not be realistically practical for large-scale digitisation activities. Despite the lack of legal certainty, many public sector bodies have incorporated these searches within established operational practices. Moreover, the Collections Trust and the Strategic Content Alliance are amongst organisations representing public sector bodies who have issued specific due diligence guidelines.

=Clearing Works: Deal Terms and Considerations=


 * When you ask a rights holder for permission to make their work available free of charge there should always be a form of ‘consideration’ involved in the agreement to make it legally binding. This is a form of transaction that shows that the Licensor is not simply giving you something for nothing.


 * Many agreements contain wording such as “in consideration of an acknowledgement and the payment by [LICENSEE] to the Licensor of £1 (receipt of which is hereby acknowledged) the Licensor grants to [LICENSEE] the non-exclusive right and licence to…”


 * The wording following the above would then define the rights the Licensor is granting to your organisation, eg. Theatrical (cinema screenings), Non-Theatrical (non-cinema screening spaces such as village halls, or community centres, particularly relevant to film clubs and societies), Videogram (VHS, DVD, Blu-Ray, video downloads), online (streaming video content on the internet, video on demand), etc.


 * There is a chance the Licensor will ask for their £1 fee, but it’s extremely unlikely!


 * Apart from the token £1 and a credit, there are other things you can offer the Licensor in return for signature of the agreement, for example, a viewing copy of the film on DVD or digital copies of encoded files (useful for a website, if they have one), should you have digitised the film.


 * If you plan to make the work available in the commercial market place (ie, you wish to sell DVDs, or sell cinema tickets for a profit), then you will have to come to some commercial arrangement with the rights holder/sales agent. This may involve an outright fee (a one-off payment, sometimes referred to as a ‘buy-out’), an advance (an up-front fee that will be deducted from subsequent royalty payments, before accounting regular payments) or a royalty reporting structure (regular, usually quarter-annual, payment of a percentage of receipts from sales). Often the payment structure involves an advance, which is deducted against a royalty.

Appendix 3 contains a sample rights agreement for non-commericial usage.

=Case Studies=

London’s Screen Archives
In 2010-11, London’s Screen Archives commissioned a consultant to assist London borough archives in ascertaining the copyright status of their film holdings, and in obtaining permissions for using material in not-for-profit contexts. The following brief case studies relate to films held in a variety of these archives. This work was delivered as part of the Screen Heritage UK Programme: a Partnership between the British Film Institute, Screen Yorkshire, and English regional film archives to safeguard the future of the UK's national and regional film archives, funded by Department for Culture, Media and Sport.

Film title: Battersea Park and Funfair Date: 2005 Status: In copyright Rights holder: Archive has details Notes: This is a very recent film, and copyright for it lasts for the lifetime of the filmmaker plus seventy years. Fortunately, the archive has a record of the filmmaker, and they can be approached to ask permission to use the film in projects. A draft letter and license agreement were provided to Wandsworth so they could send them out and await a response.

Film title: Floods in Lea Bridge Road, Leyton Date: 1953 Status: Out of copyright Notes: Alas, there was no need to do any research into the excitingly-named filmmaker J.W.L.Snooks, as this film is pre-1957 and therefore made before the 1956 Copyright Act came into force. Pre-1957, non-fiction films are classed as ‘series of photographs’ under the 1911 Copyright Act, and these types of films had copyright lasting only 50 years.

Film title: Romford’s Traffic Problems Date: c.1963 Status: In copyright Rights holder: Romford Council Notes: The credits of the film supplied the filmmakers: Town Planning Department, Romford. As this film was made by the borough, it is Romford’s copyright. They do not need to clear their own material, so they are free to use this film in projects.

Film title: Powley Film Collection (21 films) Date: 1960s – 1970s Status: In copyright Rights holder: The filmmaker, Mr Powley, or his estate. Notes: Although the filmmaker’s name and address are known, so much time has passed that it is likely that he has passed away. The archive had a record of the donors (not the filmmaker), and so I contacted them to ask for clarification about the filmmaker and his estate. They confirmed that he had passed away, and that he had no family or children. There is no one therefore, to contact to ask permission to use these films in projects. There is minimal risk if the archive does use the films.

Film title: Churchill – Statue, Hawkey Hall, Election Date: 1959 Status: In copyright Rights holder: BBC Notes: Before viewing, the rights holder was unknown. I watched this film using a BFI steenbeck and found it to be a compilation of BBC news items about the local area. It was then removed from a planned digitisation project. It is generally advised that films that belong to organisations who exploit their archives commercially, e.g. ITN, BBC, Pathe, are not digitised.

Film title: Southgate Tech from the Air Date: 1967 Status: In copyright Rights holder: Unknown Notes: This film was found in the Arts Department at the Council, so there may be a possibility that it was produced by them. However, there is no paperwork to corroborate this and no credits on the film. The archive must decide if they want to take the risk and use the film in projects without permission from the rights holder.

Film title: Sutton Girl Guides Date: 1957 Status: In copyright Rights holder: Probably either Girlguiding UK or the Sutton Girl Guides group specifically. Notes: The filmmaker is unknown but it seems likely that the film was commissioned by the Sutton Girl Guides group, and is therefore their copyright. I drafted a letter and license agreement for the archive to send out. These were addressed to the headquarters of Girlguiding UK, who can forward on to the Sutton group if necessary.

Imperial War Museum Film & Video Archive
The following account offers a useful reminder of the additional challenges faced by archivists clearing rights in the pre-internet era.

“Some years ago a colleague was trying to contact a filmmaker (and copyright holder) who lived in a small village in Yorkshire. We had had no contact with this person for many years and were unable to contact them using the address and phone number we had on file. As the footage was shot during the Second World War we knew that the person was elderly and suspected that they may have moved home or died. There were only a limited number of people with the same surname listed as residents of the village so my colleague decided to phone them all to try and locate the filmmaker of information about her. In the end, after many calls, he located a relative and learnt of the filmmaker's death and the name and contact details of her heir and we were able to establish the current copyright holder of this material…

The above was an exceptional case, with the camerawoman living in a small village and with a limited number of people of the same name. Also this was several years ago before the internet became a useful tool for "finding" people. Now, using the internet you can search widely for people, telephone numbers, owners of property and dates of death etc all of which can prove useful on locating copyright holders…

We also continue with the more traditional approach of writing to the address we have on file and keeping a file of returned letters ie marked gone away and also writing to the current owner of property to ask if they have any information about the former owner/occupier's current whereabouts.”

=APPENDIX 1: GLOSSARY OF TERMS=

Best Endeavours (AKA, ‘Due diligence search’)

A means of proof that every effort has been made to track down and contact a possible rights holder, it should be a fastidiously kept record of all correspondence documenting the process of pursuing every conceivable line of enquiry. You will need all the evidence you can gather, should a rights holder come forward and take legal action.

Chain of Title

The legal provenance of ownership of copyright in documents recognised by the courts, for example a will or title deeds.

Distributor

An entity, usually a private company, that has a licence to make and sell copies in the territory via retailers, online services or cinema theatres, television broadcasters, or other media outlets

Fair dealing / criticism or review

Legal provision enabling use of an extract from any copyright work without permission where that work is being reviewed or criticised. This usually applies to use of footage in television productions, but it is possible that it could be applied to criticism of (clips from) a film streamed via a website, where the clip would be accompanied by a piece of detailed textual criticism. It should also be borne in mind that if you are making available via the world wide web (rather than geo-blocked to within the UK only), you might make the work available in a territory where these laws do not apply and would therefore be prone to prosecution in that country. It should also be noted that for this exception to apply the extract from the work needs to be accompanied by a sufficient acknowledgement meaning a prominent notice displaying the name of the original author of the work and the name or logo of the present rightsholder.

Publishing rights

The rights to the composition of a piece of music. Prior to the advent of recorded popular music, music was recorded via a written score, which could be bought and re-performed by musicians. To have a music composition available in the market place a composer must have a deal with a publisher, who represents and licences that composition. To use a piece of recorded music in a film you must contract both this right and synchronisation rights (below).

Sales Agent

A sales representative who acts on behalf of the copyright holder to sell a product to a distributor, thereby attracting income streams and greater visibility of that product.

Synchronised soundtrack (combined/separate; optical/magnetic)

When the master recording of a specially composed score or existing piece of music is purposefully edited to the soundtrack of the film (ie, the music is not picked up in the ambient sound). This is often referred to as ‘synchronisation rights’, ie, licensing a piece of music to be edited to the soundtrack in synchronisation with the picture track.

=APPENDIX 2: USEFUL CONTACTS AND RESOURCES=

BBC Information & Archives Website: www.bbc.co.uk/informationandarchives For enquiries relating to BBC Television material held in external archives contact Adam Lee. Email: adam.lee@bbc.co.uk

British Board of Film Classification (BBFC) Website: www.bbfc.co.uk Tel: 020 7440 1570

BFI National Archive Website: www.bfi.org.uk/nationalarchive

The Charity Commission for England and Wales Charity Commission Direct PO Box 1227 Liverpool L69 3UG Website: www.charity-commission.gov.uk Tel: 0845 300 0218

Companies House Companies House Crown Way Maindy Cardiff CF14 3UZ Tel: (0)303 1234 500 Email: enquiries@companies-house.gov.uk Website: http://www.companieshouse.gov.uk/ Webcheck service: http://wck2.companieshouse.gov.uk/4143cd38aece2a399897156080105482/wcframe?name=accessCompanyInfo

The Electoral Commission See your local registration office or council.

Performers’ Alliance Contact: Peter Finch, Secretary Email: sailor1057@aol.com Website: www.equity.org.uk/Industry/Relations/PerformersAlliance.aspx

Probate Service Website: www.hmcourts-service.gov.uk/infoabout/civil/probate/index.htm List of Probate Registries: www.equity.org.uk/Industry/Relations/PerformersAlliance.aspx

PRS–MCPS Alliance, AKA PRS For Music Copyright House 29-33 Berners Street London W1T 3AB Tel: 020 7580 5544 (main switchboard) For Local Authorities tel: 0870 333 7003; Email: localauthority@prsformusic.com Website: www.prsformusic.com/Pages/default.aspx

SPECTRUM SPECTRUM, the UK museum documentation standard, is published by MDA on behalf of the culture sector. It is available free of charge for non-commercial use, or under license for commercial purposes. The latest edition includes material to support the Department for Culture, Media and Sport's Cultural Property Unit guidelines on due diligence which, although primarily aimed at establishing the provenance of museum objects, do have some relevance to the process of searching for moving image copyright holders. www.mda.org.uk/spectrum.

'Further reading: '

Tim Padfield, Copyright for Archivists and Record Managers (Fourth edition) This invaluable book offers clear and extensive guidance on copyright law for all media. Available from The National Archives: http://www.nationalarchives.gov.uk/bookshop/details.aspx?titleId=400

=APPENDIX 3: SAMPLE RIGHTS AGREEMENT=

The following document is an example of a non-commercial, non-exclusive 10 year rights agreement. Once such a document has been signed by the rights holder, additional titles can be added to the final page (Schedule A) without the need for a completely new agreement.

An AGREEMENT made on ________________2016

BETWEEN

NAME AND ADDRESS OF RIGHTS HOLDER, (“the Licensor”);

AND

NAME AND ADDRESS OF ARCHIVE, (“the Licensee”);

DEFINITIONS

"the Works"			audio visual material as shown in Schedule A

“the Extracts”	extracts from the Works not exceeding 12 minutes from any individual Work except where indicated otherwise in Schedule A

“the Promotional Extracts”	extracts from the Works not exceeding 3 minutes from any individual Work

"Additional Material"	including but not limited to trailers, stills, production artwork, production notes and costume designs relating to the Works

“Key Frames”			single, static frames taken from the Works

"the Term"	ten (10) years commencing on [INSERT DATE HERE] and expiring on [INSERT DATE HERE]

“the Territory”	the United Kingdom of Great Britain and Northern Ireland, the Channel Islands and the Isle of Man and Worldwide.

Rights

In consideration of an acknowledgement and the payment by the [LICENSEE] to the Licensor of £1 (receipt of which is hereby acknowledged) the Licensor grants to the [LICENSEE] the non-exclusive right and licence to digitise and make available on a non-commercial basis for educational purposes during the Term:

1.1 the Works and Extracts, via streaming in non-downloadable form accessible to users in the Territory as part of [LICENSEE] online projects, such as but not limited to a YouTube channel;

1.2 the Works, via screening to non-paying audiences on [LICENSEE] premises; and

1.3 the Key Frames and Additional Material, for display to users accessing [LICENSEE] online educational projects throughout the World, and at [LICENSEE] endorsed facilities and on [LICENSEE] premises in the Territory in connection with the use of the Works and the Extracts described in 1.1 and 1.2 above.

2. 	Publicity and Promotional Purposes

The Licensor grants to the [LICENSEE] the right to use or authorise the use of Additional Materials, Key Frames and Promotional Extracts, for the purposes of promoting the uses of the Works and the Extracts within the projects and in the locations described in paragraph 1 above, in any and all media throughout the World.

3. 	EXTENDING THE TERM AND WORKS COVERED BY THE AGREEMENT

3.1	On expiry of the Term the Licensor agrees to enter into good faith negotiations with the [LICENSEE] to extend the Term on a similar basis.

3.2	Both parties agree that additional Works may be added to those contained in Schedule A by agreement between the parties.

4. 	OBLIGATIONS OF THE [LICENSEE]

The [LICENSEE] agrees to provide an acknowledgement of the Licensor’s contribution on project websites.

5.  	WARRANTIES OF THE [LICENSEE]

The [LICENSEE] warrants that the Works will be made available in a non-downloadable form to users for non-commercial, educational purposes only.

6.   	WARRANTIES OF THE LICENSOR

6.1	The Licensor warrants that it has the authority to grant the rights and licences detailed in clauses 1 and 2 and that no further consents or payments to third parties of any kind whatsoever are necessary to allow the [LICENSEE] to exercise these rights.

6.2	The Licensor warrants that it is the legal and beneficial owner of the Works, Key Frames and Additional Material and has not granted any licences in relation to the Works, Key Frames or Additional Material which may conflict with the terms of this Agreement.

7.       TERMINATION

The Licensor may by notice in writing terminate this Agreement with immediate effect if the [LICENSEE] fails to perform or observe any of the obligations on its part to be performed or observed hereunder and, if the breach is capable of remedy, fails to remedy the breach within sixty days of a written notice giving full particulars of the breach and requiring it to be remedied.

GENERAL

8	Nothing in this Agreement constitutes a partnership between the Licensor and the [LICENSEE].

9	Neither party shall assign the rights and obligations under this Agreement to any third party without the prior written consent of the other.

10	The failure by either party to enforce at any time or for any period any one or more of the terms and conditions of this Agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.

11	This Agreement does not create or imply any rights under the Contracts (Rights of Third Parties) Act 1999 (including any subsequent amendment) which are enforceable by any person who is not a party to the Agreement.

12	The headings to the clauses of this Agreement are for ease of reference only and shall not affect the interpretation or construction of the Agreement.

13	This Agreement shall be governed by and construed in accordance with the laws of England and Wales and both parties submit to the exclusive jurisdiction of the English Courts.

14	This Agreement contains the entire understanding between the parties and any variation of or addition to or deletion from the provisions of this Agreement shall not be effective unless the same has been reduced into writing and signed by or on behalf of the parties hereto by persons duly authorised.