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Copyrights and wrongs.

The blog entry that I had planned to accompany Episode 17 cannot be published yet, as I am awaiting copyright clearance and permissions from the BBC. I hope to be able to bring you that blog at some point in the future. This blog post has been (somewhat hastily) written to consider the issue of copyright – a set of laws which lie at the very heart of To Be Continued.

Back in 2018, I visited the BBC Written Archives Centre, which was then at Caversham Park, in the same building where Dick Perceval worked during his time with the BBC Monitoring Service. Throughout this project there has been a particular delight in visiting a place that Dick spent a lot of time in, and that he wrote about in his journals. I experience a tingling sensation when walking through a door that Dick Perceval would have repeatedly walked through for many years, and I wonder if that particular sensation has a name? What is the name of the feeling that you get when you stand in a place that you know had a significance at another point in time? What draws people to Heddon Street in London to stand at the place where Bowie had his photo taken for Ziggy Stardust and the Spiders from Mars? Why do people want to walk across that particular zebra crossing on Abbey Road (there is even an online camera on that crossing, so that you can look at it whenever you want). Is it because brings a person from the past close in terms of space, even if the barrier of time still keeps us separated? For me, having spent so long in the head of this stranger, Dick Perceval, the sensation of walking through the door of a building that he worked in for 14 years, feels like the realisation that there is a ghost walking beside me. Time suddenly folds and I feel I am standing next to him – in space, if not in time. I should make it clear at this point that I don’t believe in ghosts. What is that sensation called?

I am digressing (as Dick would definitely say). I visited the BBC Archive because they had located Dick’s staff file. It had been preserved, not for any particular reason – just because they always kept a certain amount of staff files for their archives. It is sheer fluke that Dick’s was one of those.

The staff file is an fascinating document for anyone to look at. It holds all sorts of information about how the BBC worked in the 50s and 60s - how notes were kept in a different era, how assessments were done, interview processes, what a C.V would have looked like in 1938. It shines a light on a very particular aspect of the BBC – it’s relationship with just one of its employees for a particular period in its history. Which is fascinating. There is information even within the quality of the typesetting or the texture of the paper used, and that information can trigger memory. Memories of similar pieces of paper that will have documented our own lives - for me, the quality of paper and the typesetting on the BBC assessment forms reminded me of my school reports from a similar period of time. There are billions of pieces of paper held in cupboards across the globe that hold these tiny fragments of the history of humanity. Often these fragments remain in the cupboards, but sometimes those documents can open up new views to stories that are coming into the light.

For me, this staff file is a window through which I can look at Dick Perceval from the outside, having previously only been able to consider him from the position of his own view of himself. Here is evidence of other people’s experiences of him, and none of what I read particularly surprised me. I got an impression of a hardworking man, who was reliable, if a little slow at his job on account of his tendency to be too meticulous. A solid worker, who was a pleasant and valued colleague, and who didn't mind coming in on a Sunday, if needed. Just as I had imagined. There are other stories in his staff file that fill in gaps in his journal writing. Fragments of evidence of this man who is a complete stranger to me.

The staff file is protected by BBC copyright. I had hoped to share some of it in this blog entry, but I was very late in making my request to the BBC for clearance, and the delay has been compounded by lockdown. So my request to show you this material is still under review, and I am very grateful to the staff that are taking time to deal with my request.

Everything about this project is connected to copyright law, and copyright law both protects and restricts.

Dick’s journals are protected – the copyright rests with him and his descendants until 2067, 70 years after his death. This is true for letters as well. Any letter that you write is protected for your lifetime, plus 70 years under copyright law for 'literacy works'. The name ‘literary’ does not mean that the work needs to have literary merit: a business letter qualifies just as much as a novel. Literary works also include reports, accounts, computer programs, lists, databases, timetables and poems. So, before I could start making To Be Continued, I had to find Dick Perceval’s descendants. He had no children, so it was his sister’s family that I needed to locate. Through much googling and emailing strangers, I had a stroke of good luck and the offer of an introduction to a person who could give permission. My heart was in my mouth when I wrote to her, because the viability of the whole project rested on her agreement. I am extremely fortunate that she gave her permission.

Then there is the footage that I use to tell Dick’s stories. It comes from a myriad of sources, and most of it is, I think, either copyright free or under a creative commons license, or I am paying for its use through Screen Archive South East at highly subsidised rates, and I am immensely grateful for their support. There are a few bits and bobs that might be a bit dubious in terms of the legality of my use of them – sometimes, I will chance upon a face in an old film on YouTube that is, in my imagination, the face of Sorina, and I kind of sneak it in in the hope that no-one will notice.

In his paper Copyright in a Nutshell for Found Footage Filmmakers, Bryan L Frye notes The purpose of copyright is to encourage people to create works of authorship. As Samuel Johnson observed, “No man but a blockhead ever wrote except for money” (quoted in Boswell, 1976:302). Without copyright, people could use works of authorship without paying for them. Copyright encourages the creation of works of authorship by enabling authors to charge for certain uses of the works they create. At least in theory, copyright is justified because the social cost of limiting the use of works of authorship is exceed by the social benefit of the additional works of authorship produced.

So copyright law protects those who make original works, in any medium. That is certainly a good thing. But copyright has monetary value - copyright is property and, like all property, it can be bought and sold. The money that it makes rarely goes to the person or people who made the artefact, but will go to the archive that preserves the artefact, and the cost of preservation and of allowing access to archives has to be paid for somehow. I understand this. Many copyrighted items can be used if they can be paid for, and that puts much of the archive out of reach for many artists. Commercial licensing organisations that hold a lot of our moving image archive charge huge amounts for its limited use. Here is one quote that I received.

The cost of a 1 year, UK only display license would be £420.00 plus VAT per minute.

The cost of a 1 year, UK only digital license would be £411.00 plus VAT per minute. However, depending on the site you may require a worldwide license. In this case the cost of a 1 year, worldwide digital license would be £686.40 plus VAT per minute.

We offer a 50% discount on the cheaper license when two are purchased together and we also offer discounts for volume. We do have a  1 minute minimum purchase however this minute can be aggregated from films from across the archive.

That would cost an eye-watering sum of money for To Be Continued, and I simply don't have the budget. I am making on the cheap, and my choice of material is defined by the support that I receive from Screen Archive South East, and by what I can find through excellent online sites such as The Moving Image Archives, British Council Film Collection, and the moving image collection at the Wellcome Library.

Within copyright law, there are exceptions made for education, research, news reporting, parody, caricature and pastiche, amongst others. There is also a clause called Fair Dealing, which is a baggy bit of law, that I hope might cover any copyright transgressions I might make!

Certain exceptions only apply if the use of the work is a ‘fair dealing’. For example, the exceptions relating to research and private study, criticism or review, or news reporting.

‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing - it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work?

Factors that have been identified by the courts as relevant in determining whether a particular dealing with a work is fair include:

  • does using the work affect the market for the original work? If a use of a work acts as a substitute for it, causing the owner to lose revenue, then it is not likely to be fair

  • is the amount of the work taken reasonable and appropriate? Was it necessary to use the amount that was taken? Usually only part of a work may be used

The relative importance of any one factor will vary according to the case in hand and the type of dealing in question.

The delay in the publishing of my original blog is because the BBC have to protect Dick Perceval – they have a duty to him still, even 23 years after his death – and that is a good thing. Yet copyright is also about restriction – this staff file will probably sit in a cupboard for years and no-one will look at it. It needs context to come to life. On its own, it is just another staff file, but with the diaries it is part of a bigger story - even if that story is a small story of one man. It is still a great story.

This is a call for all archives to be generous in allowing access to artists. We often can't afford the fees, but we can give new life to the material in the back of those cupboards.

To Be Continued would not be possible without the generosity and trust of Dick Perceval's family and Screen Archive South East. Thanks for opening the door for me.

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