Bill C-61 – Effects on Consumers (Part 4): Photographs
This is part 4 of the Effects on Consumers analysis of the proposed Bill C-61. Part 1 can be found here.
Canada’s Copyright Act currently has common-sense provisions regarding the copyright in photographs:
13 (2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright.
If you have pictures taken of your family, and you pay for those pictures, you own the copyright in those pictures. The photographer could still enter into a contract that provides for some other arrangement (such as the transfer of copyright in the photographs to her), but this is not the default provision.
Bill C-61 seeks to change that. With one, clean line
5. Subsection 13(2) of the Act is repealed.
the Bill will do away with one of the smartest arrangements the Copyright Act had.
It is obvious that it will be the photographer, not the consumer, who will be more aware of the laws of copyright regarding photographs. How many people will have their family’s picture taken by a photographer, only to realize, down the road, that they cannot order copies of that print without the permission of the original photographer?
The Bill would provide the following “permitted act”:
32.2 (1) It is not an infringement of copyright
[...]
(f) for an individual to use for private or non-commercial purposes a photograph or portrait that was commissioned by the individual for personal purposes and made for valuable consideration, unless the individual and the owner of the copyright in the photograph or portrait have agreed otherwise.
Notice that only the individual who commissioned the picture is covered by this provision. Would posting that photograph on your blog (which had google ads) amount to public and commercial use? Can you imagine attempting to find the photographer who took your father’s picture 25 years ago – a picture that he had paid for – because you wish to make commercial use of it? Or paying a licensing fee for such a use? That is what will happen when Bill C-61 becomes law.
You, dear reader, may be an intelligent and informed person. And you may have a written contract ready when you go to the photographer (section 13(4) states that “no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by the owner’s duly authorized agent”). But will the unsuspecting Joe or Jane? It is doubtful.
Why the Government is attempting to break a framework that currently amounts to good consumer policy is beyond me.
Comments
One Comment on Bill C-61 – Effects on Consumers (Part 4): Photographs
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DancingSamurai.ca | Copyright in comissioned photos on
Sat, 18th Jul 2009 2:14 pm
[...] know photographers hate this, and have been trying to get the copyrights over commissioned photos [...]
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