Tuesday, June 17, 2008

Other problems with C-61 and the Copyright Act?

Paul Anka Copyright Expired? For now, I think. Taken in 1957, Photographer: Hulton Archive/Stringer.

If you follow blogs or even the regular news, you may know that many people are upset over Bill C-61's amendments to Canada's Copyright Act that will criminalize the breaking of technology that prevents users from copying digital media.

I've noticed some other issues with C-61. I've been waiting for one of the copyright gurus to weigh in on them, but since they haven't, I'm going to bring them up now, and maybe someone will tell me I've got it wrong.

No more 50 year-term for a Corporate Photo

Section 10(2) makes the person who owns the initial "negative or other plate" of a photo the "author" (or creator) of the photo. In the digital age, this is taken to be the owner of the camera or the owner of the memory medium. Being the author is not the same as being the original owner of the copyright. Section 10(2) has some interesting ramifications, for example:

  • The bride and groom will be "the author" of photos taken at a wedding reception on disposable cameras that they have placed on the tables. The guests who snapped the photos will not be the authors.
  • Staff photographers for a newspaper are the author if they buy their own film or use their personal digital camera, but the newspaper is the author if it provides the film or digital camera. Either way, under s. 13(3), staff photographers do not own the copyright in those photos unless they have a contract that says otherwise.

Section 10(1) says that if the author is a corporation, the term of the copyright will be remainder of the year in which the photo is taken plus 50 years. [Section 10(1.1) excludes one-person corporations from this rule.] When s. 10(1) does not apply, the term of copyright is the same as the term for most other works: 50 years after the end of the year in which the author dies.

If C-61 passes, s. 10 will be deleted from the Act.

I think this will be good for you if you hold shares in a corporation that makes money from selling old photographs

It will not be so good for you if you would like to reproduce photographs that were taken more than 50 years ago (i.e. before 1958). It will be a serious challenge to determine if the copyright term on a particular photo has expired. I imagine that public archives will refuse to make copies of photos for patrons unless they know the photographer died more than fifty years ago.

As for any newlyweds who leave cameras on the tables at their wedding reception, I'm sure your guests will be happy to sign papers assigning their copyright in the photos to you.

No more automatic copyright for people who pay to have photos taken:

Currently under s. 13(2) if you pay someone to take a picture, you own the copyright in that photo unless you agree to let the photographer have the copyright. Professional photographers generally get around this by putting a clause in their contracts giving them the copyright. You people who have hired professional wedding photographers and later felt like the photos of your special day are being held hostage will know all about that.

13. (2) Where, in the case of an engraving, photograph or portrait, the ... original was ordered by some other person and was made for valuable consideration, and the consideration was paid, ... in the absence of any agreement to the contrary, the person by whom the ...original was ordered shall be the first owner of the copyright.

Under C-61, s. 13(2) will be repealed. Photographers will no longer have to put a copyright clause in their contracts to own the copyright.

I don't understand why this change is being made. Professional photographers have been keeping the copyright anyway and because it is explicit in their contracts, there is less confusion about who owns the copyright.

If C-61 passes and you're at an amusement park and you pay $5 for a picture of yourself, will you have to get permission from the photographer to upload a copy to your blog?

Missed Opportunity and a hidden landmine: The 25-year reversion to the estate

There is a little-known clause in the Copyright Act that causes headaches now and then. It is s. 14(1). If an author who was the first owner of the copyright in a work gives or sells the copyright to someone else but doesn't mention this assignment in their will, the copyright reverts to the author's estate 25 years after the end of the year in which they died.

The British introduced this provision into their copyright act in the 1800s. Presumably to address the situation where artists and authors waste their money and leave nothing for their grandchildren.

Every now and then some publisher or record company finds out they've lost the right to publish something they thought they owned under this provision and some authors survivors get a windfall. Sometimes it affects you and me because the people who inherit the copyright impose crazy restrictions on reproduction of the copyrighted work.

1955 cover of Kelley's the Black DonnellysHowever, the main impact of this rule is that authors get paid less than they otherwise would when they sell the copyright in their works. Big companies are going to pay less for a copyright that lasts 25 years after the author's death than they would for one that lasts 50 years.

The British dumped this rule in 1956. This could have been an opportunity for us to dump it also.

And married people, keep in mind that with 13(2) repealed, even if you get your wedding photographers to assign the copyright in the photos to you, 25 years after the photographers die, their estates can reclaim that copyright.

Another Missed Opportunity - Publicly funded works

Some people had hoped that the next amendments to the Copyright Act would see a relaxation in how copyright applies to government and publicly-funded publications. With no amendment we cannot freely reproduce publications that our taxes have paid to create even for non-commercial purposes.



Milan said...

This is very useful to know, thanks.

Anonymous said...

You seem to have found the landmines around photos better than most. You should also check the 'transitional' stuff at the very bottom of the bill.

As I read it, "persons" who commissioned photos get to keep ownership, but "corporations" have their photos revert. Did I get that right? If my incorporated company had commissioned photos taken 30 years ago and I use them in ads regularly, I *was* ok because they were mine. But under C-61, am I going to have to find that photographer and renegotiate those rights?

I'm also not clear that you are correct about the negotiable aspect under C-61. In the wedding photo example, my read under C-61 is that the photographer *must* own the rights, and that this is non-negotiable. You can negotiate usage and licence terms, but not the ownership. Only if the photos are a "work for hire" do you own your photos.

David Scrimshaw said...

Chris, I think s. 13(4), which applies to all works, would allow a photographer to give away all rights, [except moral rights, s. 14.1(2)], and 13(5) deems the person who receives those rights to be the owner of those rights.

As for the transition provisions, I think they maintain the status quo on ownership until C-61 comes into force. Photos taken before the coming into force will fall under the current rules, photos taken after will have the new rules.