Report on AHTV 2020: Exploring documentary filmmakers’ fair practice

On 5th February 2020, I attended AHTV 2020, a one-day conference co-organised by the Arts and Humanities Research Council (AHRC) and the Edinburgh TV Festival. The event brought together Arts and Humanities academics and TV professionals working in specialist factual programming, to foster relationships and improve understanding between the two.

It was great to hear from leading TV professionals about their research-based projects and the production process behind them. For example, Giulia Clark and Bill Locke from Lion Television explained how they turned research conducted by an international team of scientists – radiocarbon-dated horse manure which proved that Hannibal’s army passed through the Alps in 218 BC – into a documentary film (Hannibal’s Elephant Army: The New Evidence).

It was curious and slightly disheartening to notice the contrast between the presentations on stage and the conversations among participants during the coffee breaks. On stage, UK academia and television were rightly presented as world-class sectors. But ‘behind the scenes,’ I heard PhD students from prestigious institutions intending to leave academia to pursue a career in the TV industry, and BAFTA-nominated filmmakers and entrepreneurs discussing their low income and the difficulties in getting new commissions.

One of the sessions I enjoyed most was the TV PHD Live Pitch, where four PhD students pitched their ideas for a TV programme to Daisy Scalchi (Commissioning Editor, BBC) and Simon Willgoss (Head of Development, Nutopia). Students’ pitches were very imaginative, including Abigail Walker’s (King’s College London) idea to produce a docu-series about the actual places where mythological monsters such as Medusa, Cyclops and Minotaur ‘lived’. The feedback provided by Daisy and Simon highlighted some of the main challenges related to collaborations between academia and the TV industry: language and communication. Similarly to how grant applications are usually drafted, all students’ pitches started by introducing the topic with context and details. The producers explained that TV pitches should start by clearly stating what the product is, and why they should want it.

Language barriers and different expectations were among the most discussed issues throughout the day. This was particularly evident when a whole panel of TV professionals did not know what a MOOC is. Producers and commissioners gave several tips to academics who wish to work on TV programmes, including: have a presence on the first three pages of Google Search; produce images while doing research; trust the producers who know ‘what the telly is’. The latter point was made by various panellists, who stressed how experts often struggle to see the subject from the perspective of the viewing public and the need to translate academic research into TV language. This discussion – although it felt rather one-sided (none of the speakers were academics) – was very interesting to me as I face similar issues when working on Copyright User projects. Most Copyright User multimedia resources are the result of close collaborations between scholars and creatives. When producing a research-based video – such as Going for a Song – it is often challenging (and stimulating) to create a work that meets the expectations of both academics and filmmakers. However, unlike TV, the ultimate goal of Copyright User is not entertainment but education. In this context, trust needs to be mutual: academics should rely on media producers’ expertise in communicating effectively to large audiences, and producers should follow academics’ lead to identify notions and principles that need to be explained to allow understanding of complex topics. One of the main challenges in developing multimedia educational resources is how to use videos and other visual tools to make complex topics as accessible as possible, without simplifying them.

Apart from my personal interest, I attended AHTV also to talk with documentary filmmakers about their creative practice. At CREATe, we just started a new Horizon 2020 project: reCreating Europe: Rethinking digital copyright law for a culturally diverse, accessible, creative Europe. One of the tasks we will be working on with IViR (University of Amsterdam) is aimed at developing codes of best practice in relation to using audiovisual works in documentary filmmaking and immersive experiences. This project will also inform part of my PhD project Fairness in Copyright Law, sponsored by the AHRC Creative Industries Policy & Evidence Centre (PEC).

Unsurprisingly, copyright came up during the panel discussion on Music Programming. Siobhan Logue – Executive Producer at the creative SME Plimsoll Productions – explained that creating music programmes usually requires two ‘layers’ of rights clearance: music and archive footage. Jan Younghusband – Head of Music Commissioning for TV, BBC – responded that there is an alternative to rights clearance: fair use for programmes distributed in the US, and fair dealing (in particular for criticism and review) in the UK, on which the BBC relies heavily. During the closing drinks reception, I had the opportunity to chat with an individual documentary filmmaker and with the creative director of a small creative company. The latter told me they always clear rights, unless they can’t find the copyright owner of the material they wish to use; the former did not know about the existence of copyright exceptions at all.

These conversations, although purely anecdotal, seem to suggest that my research hypothesis is worth exploring: unlike big corporations, individual creators and small businesses – due to lack of awareness or limited knowledge of the law – tend not to exploit the possibilities offered by copyright law to lawfully reuse existing works, especially those provided by copyright exceptions. Based on this hypothesis and through semi-structured interviews and focus groups with creators, I intend to investigate the following questions: Do individuals and businesses make different decisions around the reuse of existing works depending on their type and level of knowledge of the law? Can creative and cultural practice play a role in defining related legal standards such as fairness?

A good lens to investigate these questions is the quotation exception provided by Article 10(1) of the Berne Convention and implemented in the UK in 2014 (Section 30(1ZA) CDPA). While on the one hand the quotation exception is potentially as enabling as US fair use, on the other hand it has not been tested in UK courts yet and so its scope of application is uncertain. Professor Lionel Bently’s Public Lecture ‘Quotation under Copyright Law and the textual paradigm’ – which took place in Glasgow on 12th February – was an invaluable opportunity to better understand the legal framework surrounding the quotation exception. A separate blog on Bently’s lecture will be published soon.

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