Abstract: Copyright’s interest in promoting creative production is often described as requiring a “balance” between exclusion and access rights. Owners of copyright receive exclusive rights to control copies of their works, which enables authors to earn returns on their creations through sales or licensing transactions. But as important to promoting creation are the user rights in copyright law which permit building on the work of predecessors.
The necessity for balance in order to promote creation is clearly evident in the documentary film industry, where producers rely on copyright ownership to facilitate the dissemination of their works through broadcasters and other distributors, and on user rights to incorporate excerpts of other copyrighted material in their work. This article draws on a collaborative South African research project that has been working since 2008 to document influences of copyright law on the production of documentary films. The results of that research, summarised in the first part of the article, show that South African filmmakers are hampered by a legal environment that denies them copyright ownership in the majority of their projects while also denying them adequate rights to use, in their own works, elements of the works of others. The second part of the article describes capacity-building approaches and legal reforms that could be advantageous to the local film industry.