Other problems with C-61 and the Copyright Act?

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.

However, 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.

Links:

• Bill C-61
• The Copyright Act
• Michael Geist: The Canadian DMCA: Check the Fine Print
• Winkler v. Roy: A 2002 case where the copyright in the Black Donnellys reverts to the author's landlady

Meet Drexel - The Next Super Star Cat of the Blog-o-Sphere

This is my cat Drexel (or Drexelina if you're being formal). I have owned her for a couple of weeks and have waited until we finished our settling in period before blogging her. Drexel is particularly happy to be here because I am going to make her a star.

I know there are other famous cats out there in the blog-o-sphere. Zoom has her furry and friendly Duncan. Megan has her gender-twisting Freya. But Drexel will surpass them all.

Why? Because she leads a full and active life even though she lost her right hind leg in a tragic accident in her youth. Yes, Drexel is a tripod. But she doesn't let it slow her down. When she is in a hurry she can run down the stairs as fast as any other cat. She can hop on a bed or a kitchen table, no problem.

There are people out there who may contest my ownership claim to Drexel, but I am prepared to take this all the way to Superior Court of Justice (Small Claims Division) if they press the issue.

You see, Drexel originally belonged to Eric (The tragic accident occurred during his ownership. Nobody holds Eric responsible, but it is a fact that could be useful at trial.) When Eric moved to Manhattan years and years ago, he asked his sister Manon to look after Drexel for a couple of weeks. But Eric didn't take Drexel back after those couple of weeks. He abandoned her and thereby relinquished his claim of ownership over her.

You might think that Manon became the owner of Drexel once it was clear that Drexel was abandoned, but she didn't because she never formed the intention to own the cat.

Here is a quote from my Illustrated Summary on Property Law:

Personal property upon being abandoned ceases to be the property of any person until it is appropriated by another with the intent to acquire ownership to it.

When Manon needed a temporary home for Drexel, I said, "Move her in to my place." Manon thought that was a great idea because she had no idea of my clever plan.

The moment Manon left Drexel here and walked out the door, I had both possession of the cat and the intention to own her and thus acquired ownership.

Some of you may be uncomfortable with the idea of humans owning cats. Let me assure you that Drexel has no such issues. Manon came over a few days after the drop-off. We were sitting on the couch and Drexel hopped up and allowed Manon to stroke the soft fur around her neck.

I patted my leg and said, "come here Drexel."

Manon's eyes went wide with astonishment when Drexel immediately hopped over her lap and came to me. "She never comes when she's called."

"She does now," I said.

Interesting fact: Drexel is the German equivalent of the last name "Turner". [Source]

Farewell to Patently Unreasonable: Dunsmuir v. New Brunswick

It might seem like an ordinary day to you, but for Canadian administrative law nerds, everything has changed. Huge news today from the Supreme Court of Canada in Dunsmuir v. New Brunswick: All nine judges agreed that it is time for the "Patently Unreasonable" standard of review to be banished! There are only 2 Standards of Review! "Reasonableness.and Correctness" (With a 3-judge minority preferring "Deference and No Deference").

...it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough.

Furthermore, they all agreed that the "pragmatic and functional approach" is out. We now have a contextual "standard of review analysis" from the 5-judge majority decision written by Justices LeBel and Bastarache. It uses the same factors that the pragmatic and functional approach used, but now they are not an exclusive list and one of the factors can be determinative.

All 9 judges wanted the standard of review question to be more straight-forward so that people challenging administrative decisions will better know what to expect and not have to pay such huge legal bills. Fortunately for us lawyers, we should still be kept busy with water muddied by the minority opinion from Justices Binnie calling for a "wider reappraisal" that accomodates "a lot of variables" and another from Justice Deschamps calling for clearing away "superfluous discussions and processes".

I always wonder what the tone of debate is between the justices when they don't all sign on to the same decision. I have a feeling that it might be at it's most heated when they agree on whether the appeal is upheld or not, like they did in this case (poor Mr. Dunsmuir won't be getting his job back), but don't agree on how to get to that answer.

One of the clues I go by to tell how heated things are is how often the writer of the judgment feels a need to mention that their opinion is held "with respect". In this case, Justice Binnie writing only for himself used the phrase twice. But the more telling quote may be:

Asking courts to have regard to more than one variable is not asking too much, in my opinion. In other disciplines, data are routinely plotted simultaneously along both an X axis and a Y axis, without traumatizing the participants.

I think it is a safe bet that the Justice and not one of his clerks wrote those sentences.

Yes, that's right, I'm a Lawyer

Lee Seshagiri, David Scrimshaw, Krista Scobie and Adrian Scofield applauding the people who helped them get to the Call to the Bar. Photo: K. Shore

I've had two full work days as a lawyer now. Underneath my name on my email signature it now says "Counsel". Yesterday in the Small Claims Court, Justice Tierney recognized me so I didn't get to introduce myself. But after I introduced my client, I said, "you can note me as counsel."

I've been giving out legal advice left and right. Examples: "Read the whole contract!" "Don't get caught!" and "If the officer who gave you the ticket shows up at your court date, plead guilty with an explanation."

After the ceremony on Tuesday, some of the new lawyers already had their documents framed. I expressed surprise and Mom explained there was a booth set up where they were getting it done and she'd seen parents ripping the envelopes out of their children's hands and taking them right over. "I imagine it is not inexpensive," I said.

"That's right," she said. "I figured you had a a bunch of binder clips at home to put them together."

Webshots Album of Photos taken by K. Shore

All Dressed Up for Nothing

You'll be happy to know that I am gaining a great deal of experience in how to not have a trial. I expect to add to this list in the upcoming weeks, but for those of you who would rather not wait, here are the first five reasons why I have not presented a single argument at trial:

1. The defendant hears about his trial in absentia and appears without a lawyer. As my witness takes the stand, the defendant interupts. "Your honour, I don't understand why this is so complicated..." and continues with an interjection that convinces the judge to adjourn the trial so that the defendant can either get a lawyer or discuss his options with me. [He got a lawyer.]
2. While reading over the evidence for a by-law prosecution, I realize that there are flaws in the charges and when the matter is called in court, I must withdraw the charge.
3. On a prosecution for a "no smoke alarm" ticket, the defendant does not appear. Tickets with set fines under $500 fall under Part 1 of the Provincial Offences Act, if the defendant is not present he is "deemed to not dispute" and found guilty. No calling of evidence or legal argument is required.
4. On a Part 3 prosecution under the Fire Code, the defendant appears, but the fire inspector doesn't. I ask for an adjournment. The justice of the peace turns me down and dismisses the charge because I haven't proved the offence.
5. In Small Claims Court, the student-at-law for the plaintiff has the plaintiff take the stand and the plaintiff gives about fifteen minutes of testimony. Then my learned friend refers to something in her trial brief and the judge asks for a copy. "You should have this," he is told. But he doesn't. And he doesn't have my trial brief either. Even though both were filed and he has the addendum I filed after filing my brief. Trial adjourned so he can read the briefs. [And I gave him my copy, so now I have to make another copy with the tabs and the cirlox and re-do my highlighting and margin notes.]

Breaking News: I just met Justice Abella!

I don't want you to be too envious about my status as a student-at-law, but although I am neither young nor a lawyer, because I am articling, I am invited to events sponsored by the Young Lawyers' Division of the Ontario Bar Association.
Tonight they had a reception at the Rideau Club at which the Honourable Justice Rosalie Silberman Abella told us how she came to be appointed to the Supreme Court of Canada. It didn't surprise me that she was an engaging speaker because her written decisions are always a pleasure to read and if you ever watch Supreme Court TV, you'll see that she is always the judge who seems most interested.
She told us that she is sixty, and she decided she wanted to become a lawyer when she was 4 years old (because her lawyer father couldn't practice law when the family immigrated to Canada until he became a citizen, so he became an insurance man instead). That's 56 years of having a passion for law.
She also told us that she didn't have much of a dating life in her youth, but I find that hard to believe. Still... here are my top 5 reasons that it's okay that Justice Abella is married to someone else:

1. She freely admits that she doesn't know who Mag Ruffman is, has never watched a home repair show, and doesn't know how to fix a thing around the house.
2. She used to be a family court judge. When she got bored with me and divorced my sorry ass, I'd be lucky to wind up with a bicycle wheel in the settlement.
3. Me: "Hi, honey, how was your day?" Her: "Quiet, just overturned a decision of the Ontario Court of Appeal, struck down a few pieces of legislation as unconstitutional and made it illegal to discriminate againt..., oh heck, enough about me, what were you dealing with today?" Me: "Pothole case... but it was a really big pothole."
4. Her sons are younger than me and both experienced lawyers. They could beat me up for real and in court.
5. She has seen every single one of the Police Academy Movies.

Oh, I almost forgot, her key to reaching the Supreme Court... at every step along the way when she was offered an interesting career choice, people advised her not to, but she did them anyway.
65% paycut to be a judge? Sure! Lead a Royal Commission on Equality in Employment that all the politicians and newspapers will hate you for? Sure! Chair the Ontario Law Reform Commission even though they're planning to kill it? Bring it on!
Her advice: "Don't take other people's advice."

First Appearance

I had my first appearance before a judge today. Asked for an adjournment on consent in Small Claims Court. Was very nervous about whether I said enough and when I should stand up and sit down and all that. How nervous? Let's just say that several hours later, M&Ms were melting in my hand, not in my mouth.

But don't worry, I got my adjournment.