How Stephen Harper did something for Greg Locke

…not that he realizes it, but for the first time in my life a piece of Canadian legislation will have a positive, direct and substantive impact on mybusiness, family and that of my professional photography colleagues.

 Bill C-61, the new copyright act that Michael Geist and his merry band of Internet pirates are getting people foaming at the mouth over, was tabled in the House of Commons today. Geist, who is actually a nice guy and very smart, along with the media, are focusing on the part of the new act that prevents people from stealing music and videos from artists and media companies on the Internet. What almost nobody knows is that a part of this bill will finally give Canadian photographers the same rights as other Canadian artists, writers and people who create original works. Professional photographers organizations have been fighting for years to get this law updated. They almost had it in the dying days of Paul Martin's Liberal government.

Until now, photographers fell under the same rules as engravers and lithographers from the ancient days of printing and that meant, without an agreement otherwise, the person or company commissioning the photograph, lithograph or engraving owned the copyright once the fee was paid. This is the opposite to the copyrights laws of the USA and Europe with regard to photography and who the onus falls.

The irony is that Canada is a signatory to the Berne Convention on copyright and the World Intellectual Property Organization (WIPO) and protects the rights of foreign photographers in Canada under these treaties but not their own citizens.

When people hire a photographer many think they are “buying” the photographs produced. Established respected professional photographers work on a “professional services” business model whereby you are paying for the professionals time and the rights to USE the fruits of that work for the purpose you stated you wanted it for when you contracted the photographer. This in no way coveys copyright to the client. The new law repeals section 13.2 of the copyright act and would, like all other artists, give the copyright to the photographer by default without the need of a specific agreement or contract. From Industry Canada;

In contrast with the existing rules, photographers would always be considered the authors of, and the first owners of, copyright in photographs, including commissioned photographs (e.g., wedding photos).

The terms of protections for some actual rights would be extended to:

  • fifty years after publication for sound-recording makers and performers
  • life plus 50 years for photographers

So, when you hear people moaning about not being able to get free music or video off the Internet remember, there are more important issues at play. This new copyright act protects individual artists, not just corporations, by updating and reinforcing the copyright laws in the Digital Age to protect them from people and corporations who steal their music, art works, writing, videos, software …AND PHOTOGRAPHS, from the Internet. I'm sure we have all seen websites and blogs that are nothing more than cut and paste of other peoples work. “Fair use” not withstanding, it has always been illegal. The new copyright law reinforces that and provides for penalties thus giving  strength to artists rights.

So, Stephen, if you're reading…Thanks!

…now with our luck, this is the bill Stephane Dion will decide to get brave on and bring down the government. It's happened to us before!

Bill C-61, Canadian Copyright Act, Copyright reform Process, CAPIC, EP Canada, WIPO

8 Comments

  1. Anonymous March 31, 2010 at 13:46 #

    Thank you, I love to read articles that are informative and beneficial in nature.
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  2. Anonymous June 19, 2008 at 02:41 #

    It's something that has been legally important to professional photographers, yes. And for years, they've known, and used, the very simple technique to be first owner of copyright under the existing law.
    All well and good. But if international practice is going to justify tilting the balance further in their favour, international practice should also be followed on the counterbalancing side. C-61 fails to do that.
    Good for you that you know who took your parents wedding photos. Very few photographs have that identifying detail. Follow-up question: do you know whether that person is still alive or not? It would be nice if that's what professionals did. But they don't, or at least very few of them do. I have an album full of professional portraits of family members. Probably half of them have the circle-(c) or even stern textual copyright warnings… almost all of them in the past 20 years do. Not ONE Of them identifies the photographer.
    The “handing the camera” to a stranger may not be a problem in the professional world. And so it wouldn't cause me any grave concern, EXCEPT that the Copyright Act, in whatever medium, doesn't apply just to the products of professionals. This very amateur comment is a literary work within the meaning of the Copyright Act, and has the same status, in law, as a Margaret Atwood novel or the textual part of one of yours (or mine, for that matter) published articles. Maybe you wouldn't hand your camera off to someone else. Millions of others would, and do, and now there are copyright implications that could very easily be taken care of, IF the Act or the amending bill were well-drafted. They aren't.
    You try and make the distinction between family or hobby or personal photos, on the one hand, and commercial and professional ones on the other. That's a business distinction. The Copyright Act as it stands makes very little distinction; the Copyright Act as it will be amended makes NONE.
    I'm glad to see you conced the academic issue. And you are within your rights to require permission — at least for those uses which are not covered by fair dealing, incidental inclusion, non-substantial copying, and so on. The law still recognizes such exceptions; you benefit from them as a professional photographer. (Without them, you wouldn't be able to photograph buildings, which are architectural works.)
    However, you're not going to live forever.
    You already have all the copyright tools you need to estop someone from using your work without permission or, where you deem it necessary, buying the right. And the one change with regards to ownership puts all the cards in your hand, which the WIPO treaty and international practice require. However, that same international practice also puts cards in the consumer and public interest; the new Canadian bill does not.
    In fact, there are two NEW provisions concerning the user's rights WRT photography which are not only severely limited by comparison with the equivalent laws of European, civil-law countries, and countries like Israel which has just passed a model Copyright Act, but also these two provisions would appear to contradict one another. It really goes to show how poorly thought-out, and appalingly drafted the bill is. Really. It's an absolute abomination of legislative drafting.
    I don't begrudge photographers (professional or otherwise) the ownership change that much; the term extension I can even swallow up to life+50 (but no more – really). But there are legitimate consumer interests, public interests, and posterity interests which are being gored, for no really good reason, and which could be accomodated without affecting Greg Locke's ability to make a living.
    Sadly, the clueless people at Canadian Heritage have their heads… was going to say somewhere else, but I'll say in the sand, and simply don't get the other side of the story. And there is one.
    Happy snapping! Which reminds me, I have a couple of rolls of “slide” “film” to drop off. You remember that quaint stuff? 😉

  3. Anonymous June 14, 2008 at 13:41 #

    Yes, “These questions are going to become legally more important” …GOOD! …its something that has been legally important to PROFESSIONAL photographers for many years.
    I know who took my parents wedding photos because he was a professional photographer and his name and address in on the back of the prints. That's what professional do. Today, imbedded meta data in images make it even easier to track ownership of images …thats how I find unauthorised use of my work on the web. Totally, brilliant technology.
    The “handing a camera to a stranger” or me shooting a pic for someone else is irrelavant in the professional world because of the lack of commercial value. It's a common argument. I would not ask someone to take a photo for me nor would I take one that was anything more that a “happy snap”
    One must make the distinction between your family photos which were most likely made by family members or friends as a hobby and personal, non-commercial use and work made by professionals for commercial value.
    Yes, it will be harder for acedemics to do thier work. Sorry, it's still my work and cannot be used without permission …notice I didn't say payment. Fees and usage are negotiable. As for making it hard for publishers…THAT'S THE POINT! To make it harder or illegal for commercial interests (publishers, print or electronic, being the primary target) to use my work without permission or compensation.

  4. Anonymous June 13, 2008 at 21:35 #

    There's nothing in the amendments that will stop potential clients from making the same demands. You didn't have to accede to it before. You won't have to accede to it now.
    Meanwhile, the term of copyright, and ownership provisions, are going to make it very hard for people in the future to use historic photographs, including of themselves or their ancestors, without worry about copyright liability, and there is no estoppel by the subject of a photograph to prevent its unauthorized use, even by the author/owner.
    I have prized family photographs from my childhood. I have no idea who the authors are. Do you know who took your parents' or grandparents' wedding photos? Have you ever handed a camera to a stranger while on vacation, or been handed one, so a happy touristy souvenir photo could be taken? If it was your camera, do you know for sure who the photographer was, that you could get their permission to use their work?
    These questions are going to become legally more important, but no more answerable, in the coming decades, if the photography provisions are brought in without any counterbalance.
    These features – a positive right to use your own image, at least for domestic purposes, and a right of estoppel – are very common in developed countries' national copyright laws, and, as quid pro quo between the public and photographers, ought to be in Canada, too.
    I have no real problem with a change in the default ownership rule, as long as there are protections for personal use (and NOT ones that can be overridden by contract, as the current ownership rule is), for privacy, and for posterity. But all those things are lacking, and generations hence, of familiies, of researchers, of archivists, librarians, and publishers, are going to be mad at the people who couldn't think of the consequences, often unintended, of how copyright law projects itself through time.

  5. Anonymous June 13, 2008 at 20:32 #

    Chris,
    If you sell prints, yes, you then have a small problem but it can be solved by making a “Condition of Sale” agreement.
    …but selling prints is not a normal part of business for most commercial photographers.
    As for the “onus” …I would always want to have the law on my side by default. It works better in court.

  6. Anonymous June 13, 2008 at 20:28 #

    I learned early to try and keep copyright on everything I've ever shot. In the business we call it “Photographers RRSP”. It is written into my contracts. That said, after more than 25 years there has been some work done in the absence of a contract or where the client insisted on or required copyright. So it was done. There are also assignments I've turned down (one last week for an oil company) because the client refused to let me retain copyright. Without copyright on that shoot it was not worth the day rate for me. So, it goes. Its a business, all things are negotiable and everyone has a right to walk away.
    The new law, for the most part, puts an end to that discussion except in unusual circumstances …such as sensitive corporate and industrial subjects.

  7. Anonymous June 13, 2008 at 18:40 #

    Which photographs, that you yourself have taken, don't you already, under existing law, own copyright to?

  8. Anonymous June 13, 2008 at 18:39 #

    I too am a photographer and I do not believe repealing 13(2) is beneficial. As a photographer, I am familiar with the laws regarding my work and as such, ensure I include ownership/copyright clauses in my contract. Bill C-61 repeals this and places the onus on the the person commissioning me for my work to know the laws that he or she may infrequently, if ever, deal with.
    Further C-61 29.21 allows a users who has to make a copy of a work they have legally obtained. If you are in the business of selling prints, this could represent a decrease in your reprint fees.