Shaina: This is, and I can't see it - this is an email Lawrence Liang, a lawyer, sent to the Vikalp list, and he is trying to talk about Open Content Licensing and trying to make a case for why we need to share our footage - just some threads of correspondence - focus on the highlighted words - I'll just scroll through it quickly ..
Lawrence Liangs Email to the Vikalp List dated :
When I was in law school, I had great aspirations of wanting to be a filmmaker, and an FTII-type (Film and TV Institute of India, a prominent school for film-making) friend told me the best place to start was to watch a lot of foreign films and documentaries. So I did that rather dutifully and spent many hours when I should have been reading corporate
law, watching documentaries.
My fondest memory of my placement in Mumbai with a law firm was when we
took off to the Tata Institute of Social Sciences (TISS) and watched
Anjali Monteiro and K P Jayashankar's film on the Yerawada prison in Pune.
I gave up on the idea of becoming a filmmaker after we finally did do a
documentary on law school. But by then the bug had bitten and I had
fallen in love with cinema and the documentary form as well. I think
watching documentaries has also made me a better lawyer than I would
have been if I read Ramiaya on the Indian Companies Act. So if I have
written this rather longish argument about why documentary filmmakers
should start thinking about open content licenses, it is with a sense of
repaying a debt.
But firstly a few clarifications: what does an open content / creative
commons license actually mean?
Open content licenses have basically been inspired by the Free Software
movement, where they try to reverse the principles of copyright to build
a more vibrant public domain of materials which can be used by people.
Copyright grants the author of a work an exclusive right to copy,
distribute, create adaptations etc of his or her work. Any person using
any material without the permission of the author, or without paying
royalty, is presumed to be infringing the exclusive copyright of the
author of the work.
While copyright was initially supposed to be a means of balancing
between providing incentives for authors and ensuring that works
circulate in the public domain, over the past few decades this balance
has been completely tilted in favour of the owners of copyright.
Increasingly, one sees the use of copyright to supplement restrictions
on freedom of speech and expression. A quick example: Alice Randall, an
African American author, wrote a rewriting of Gone with the Wind from
the perspective of Scarlett O'Hara's mulatto half-sister. The publishers
claimed that this was an infringement of copyright and obtained an
injunction against the publication of the book. Thankfully, in this
case, the court of appeal overturned the injunction.
Similarly, copyright licensing makes the acquisition or use of a
pre-existing work very very expensive, and let's hope that we don't go
down the US route where you have to take a hundred copyright permissions
before you use any music, clip etc while making your own film. Think
about your own experiences. If you had to pay every time you wanted to
use a clip or a song, how much would that add to your overheads?
A cautionary take: In 1990, Jon Else, a American documentary filmmaker,
was working on a documentary about Wagner's Ring Cycle. The focus was
stage-hands at the San Francisco Opera. Stage-hands are a particularly
funny and colourful element of an opera. During a show, they hang out
below the stage in the grips' lounge and in the lighting loft. They make
a perfect contrast to the art on the stage.
During one of the performances, Else was shooting some stage-hands
playing checkers. In one corner of the room was a television set.
Playing on the television set, while the stage-hands played checkers and
the opera company played Wagner, was The Simpsons.
Else thought this shot would be great to use and he went ahead and shot
it; he then decided to obtain permission from the owners of the
copyright in The Simpsons to use the four-second clip. While Matt
Groening, the creator, did not have a problem, he did not own the
copyright. Gracie Films, the owner, demanded that he pay them $10,000
for the use of the four seconds.
Else obviously could not afford to pay them. He could have gone ahead
and used the clip, and it would have fallen under his |fair use| right
to do so. But this was too risky given that the average costs of
defending a law suit in the US is $250,000.
The situation in the US is pretty bleak now, and any documentary
filmmaker submitting a film to a broadcast organisation has to get
copyright clearances for all materials used, otherwise they refuse to
broadcast the film. This sounds almost like the Indian scenario of
obtaining the censor certificate for films before broadcast.
From software to the other world Anyway, as a response to the stifling
copyright regime, the Free Software movement began. What it did was to
create something called the GNU General Public License. This license,
instead of denying people access or restricting their rights over a
work, made software available for all with the freedom to copy, modify,
It is, of course, important to remember that the word 'Free' here refers
to freedom, and not to price. The only condition was that if someone
created something new out of a Free Software, then that work would also
have to be licensed on the same terms and conditions, namely that it
could not be taken outside the public domain.
The movement has now spread to other domains of cultural production and
the creative commons is the best example of how this idea is being used
with respect to movies, music, documentaries, literature etc. So why
should documentary filmmakers start taking the Free Software movement
seriously and think about similar licensing models for their works, as
well as the very idea of collaborative production for the future?
Here are some sound reasons:
Distribution, a major headache now: One of the biggest problems faced by
documentary filmmakers in India has been the question of circulation and
distribution. This is an issue which has been discussed in a number of
meetings as well as on electronic mailing-lists in cyberspace.
If the work were available freely (again note this does not mean that
you cannot charge for the documentary, but means that a person who has
bought a copy may make a copy and distribute it to others), there would
be far greater circulation of documentaries amongst other filmmakers,
students, activists, scholars and general public.
It is a fact that, currently, if you want to access documentaries, you
either have to approach the filmmaker or approach an NGO
(non-governmental organisation) which keeps documentaries. Greater
availability will ensure greater distribution and subsequently promote
If you have no problem, say so: I am sure that most documentary
filmmakers do not have a hassle if people circulate their work, but it
is important to remember that unless you state explicitly that people
have a right to do so, to use your work etc, it is presumed that they do
not have a right to do so.
In that sense, copyright by default applies to your work. Which is why
it is important to start thinking in terms of a pro-active licensing
policy that allows people to use your work.
This doesn't mean waiving all your rights: There may be one or two
immediate concerns that arise. If I make my work available, isn't there
a danger that someone will use my materials and pass it off as their own
By licensing under an |open content| license, you do not waive all your
rights as the author of the work. It is really up to you to determine
the nature of the usage involved.
For instance, you could have a license that allows the work only to be
copied for non-profit purposes, so I can't make a hundred copies of your
work and then start selling the work for profit. Similarly, by licensing
under an open content license, you do not lose your other rights, such
as the right to be identified as the author of the work, and so on. You
may allow or not allow someone to modify the work or use significant
Filmmakers don't live off royalty: More important is the fact that most
documentary filmmakers do not live off royalty in any case. Their films
are either commissioned or they earn some money from various prizes,
invitations and the like.
So, the fear of the loss of revenue cannot be a very serious one. But
apart from the fear of loss of revenue on the filmmaker's part is the
more important issue. When a filmmaker is commissioned to make a film,
it is important to ask the question as to where that money comes from,
and if the money comes from public funding, there should be no reason
why the film that is made from public money should then become the
private property of an individual filmmaker.
Let's assume that the money that is provided for the film is not that
great and cannot be measured in terms of the efforts that the filmmaker
has put in. It is important to acknowledge that the filmmaker still
benefits in terms of experience, credits, recognition, future
Then there's the collaborative nature of filmmaking: Copyright's myth of
the individual creator genius is perhaps more violently expressed in
filmmaking. Filmmaking, as we all know, is perhaps one of the most
collaborative of the arts, and the amount of diverse labour that goes
into it is incredible.
Yet, for the purposes of copyright, the author of the film is considered
to be a single individual, namely the producer of the film. To its
credit, the system of credits in filmmaking, especially in feature film,
still recognises this process of joint authorship.
Another issue, of course, is to recognise the hundreds and thousands of
influences and inspirations that have gone into our own films. We need
to work beyond the assumed myths of copyright law, and develop
alternative practices that recognise the multiplicity that goes into the
making of a film.
When we extend this principle to the making of films, we can start
thinking in terms of the great benefit that making film-footage
available has on filmmaking itself. I think at this point we really need
to laud the efforts of a few documentary filmmakers post-Gujarat, in the
form of the shared footage project. Given that we (documentary
filmmakers in India) are a small community, it is important to start
thinking in terms of the benefits of collaboration, prime among which
will obviously be vast amounts of footage available to be used.
Copyright increasingly threatening creativity: If copyright is
increasingly threatening creativity, then one of the means of protecting
this creativity is ensuring that we take pro-active steps that build
towards an ethic of the public domain in our own practices as well.
One thing is sure: the digital revolution has arrived. You have more and
more people from a non-filmmaking background who want to experiment with
films, use it in the course of their work etc. In that sense the media
and the medium is no longer external to any of our practices.
At some level, we all have to, whether we are academics or lawyers or
activists, start thinking of ourselves as media professionals as well.
And the great thing that digital media has done is that it has enabled
almost any person to become a low-cost production studio.
You have a decent computer, and you can mix and match and edit your own
stuff. Tinkering cultures are a critical part of the way we are learning
the grammar of new media, for instance at the Alternative Law Forum, we
have been working to bring out a CD on queering Bollywood which brings
together clips of subversive queer readings of Bollywood. Three years
ago we would not have imagined ourselves doing it.
Two students at the law school
Warisha and Vinay -- have made their own films, one on Kashmir and
one on Pakistan. I think we are living in very interesting times as
far as democratic media is concerned, and we can't allow the freedom
provided by technology to get curbed through a content barrier that
arose in the 18th century as Copyright.
It's a question of politics, above all: Finally most documentary
filmmakers would identify themselves as being against the neo-liberal
global order. It's therefore important to start realising that
intellectual property is one of the key pillars upon which this
neo-liberal order is built, and important to incorporate the subjects of
our film into our own practices as well.
It does sound a little ironic to make a film on protests against the
hegemonic order of the WTO, and then claim strong protection for your
Shaina: I wont read more, we're running out of time, but these are threaded archives, you can find them online. And, another one, related to archiving in particular was an email Madhushree sent - I think we had a date if we go up - 3 years ago, Majlis, as most people know, has an archive. They started Godaam and the motivations are even very clear in this email, but focus on the highlighted words, where Madhu really raises the intrinsic dilemnas of archiving and the stuff they've been dealing with after they decided, as Robert Luxemborg was saying - "We have an archive, what can we do with it?", and exactly these deliberations that you see in Lawrence's mail and Madhu's mail are things we've all thought about, come together often, fought, dissented, argued, and now, we are doing something productive.
Date: Fri, 07 Oct 2005 18:33:57 +0500
Subject: Re: Shared footage group from Gujarat
I take this opportunity to talk about our experience on found footage. As
some of you may know Majlis has been trying to build a video footage archive
since last 3 years. So far it is a very modest effort. The need for such a
project was felt as in 2002 I was looking for some footage of Babri Masjid
demolition for my film Made in India. NDTV asked for exuberant amount of
money (I don't even remember the amount it was so absurd). Somebody in Delhi
told me you are looking of Babri footage- we all take it from your film I
live in Behrampada. I was shocked. That footage was shot on umatic from a
VHS to TV image. As I was inexperienced and did not have any infrastructural
support that VHS was not saved. In the film itself the image is pretty bad.
I wondered what people are getting by copying from it, that too most
probably from VHS . (That nobody ever informed me about this copying is
another matter). At this rate as WTC image would remain as most vital visual
memory of our time, there will be no memory of Babri demolition for the
younger people. Hence we thought using Majlis' infrastructure we would
develop a pull of contemporary images for fellow filmmakers. We have not
even announced the programme officially as our modest collection so far is a
far cry from a fully developed archive.
But we tried to encourage students into looking at old footage through
various workshops. That is when we realised that a footage can have
tremendous capacity of misuse when read without a context. But the problem
is who decide the ways of reading. Aren't we all advocates of re-reading?
For example, one XIC student was after us for some footage of the Gateway of
India bombing. He wanted to make a hip music video on taxiwallahs in Bombay.
Now who decides/ who has the right to decide what is the proper way of using
the Gateway of India bombing? Do we become a 'neutral' service provider, to
whom people come only as a short cut? Or do we become a censor board? Or do
we deny our services to all who are not 'people like us'. Who is people like
us? Even if Ramani uses some of my footage there is 50% chance I will not
like it. But then anybody's personal liking and political misuse are two
different things. Don't we often use political reasons for expressing some
personal reservations? So on and so forth....
Hence the project of video footage archive presently is in an angst ridden