Yesterday the Canadian government announced proposed changes to its Copyright Act. While it contains many changes for music, video, performers, schools and libraries, it also has a some important changes that will affect photographers.
(Usual disclaimer: I’m not a lawyer so don’t believe anything after this).
Definition of Author
1) Bill C-32, the Copyright Modernization Act, proposes to repeal Section 10 of the existing Copyright Act. This will mean that the person who takes the picture will be the Author of that photo. This sounds obvious, right? But under current law, the party that owns the film or memory card used to take the picture is the Author.
“Author” is an important legal term because: (a) only the Author gets Moral Rights and (b) the default position is that the Author owns copyright, unless proven otherwise (more on this in section 2, below).
Note: This will also mean that if you ask someone to take a picture for you, that person will own the copyright to that picture. For example, say you go to Niagara Falls, hand someone your camera, and ask them to take your picture in front of the Falls. That person will own the copyright to the picture but you will have the right to use the picture for personal use only, (more on this in section 6, below).
Also if you have an assistant operate a remote camera, that assistant will own the copyright unless you have a contract to the contrary. So pay attention.
Copyright Owner
2) Bill C-32 also plans to repeal Section 13(2). This means that the Author (i.e. the photographer) will be the first copyright owner of their work. But any party that commissions (personal?) photography will be able to make personal, non-commercial use of the pictures, (more on this in section 6, below).
Under current law, the party that hires a photographer is the copyright owner. But this clause can be changed through contract between photographer and client.
Fair Dealing
3) Bill C-32 adds parody, satire and education as new purposes for Fair Dealing. I bet few people know what parody or satire mean or if they even understand how Fair Dealing works. The USA allows parody but not satire.
4) The Bill proposes that an individual may use any copyrighted material to create another work, but only for their own non-commercial use and the source and author are credited, where reasonable and the new work doesn’t harm the original existing work. The USA allows for transformative works, with some restrictions.
Copyright Infringement
5) The new Bill differentiates between commercial and non-commercial infringement. Statutory damages for non-commercial infringement have been lowered to $100 to $5000 for all infringements, unless that amount causes undue hardship for the defendant, in which case the court can lower the amount. Statutory damages for commercial infringement stay the same at $500 to $20,000 for each infringement.
Personal Use
6) Copies for private use can be made if the original was legally obtained and the copy is used privately by the person who made the copy. This means a client can make copies of pictures for their own private use, (example: for backup or restoration purposes), but cannot make copies for relatives and friends.
Term of copyright stays the same: life plus 50 years.
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Side notes:
• Cell phones and the locking/unlocking of cell phones have nothing to do with copyright.
• Format-shifting is already semi-legal:
(i) A few years ago, a Quebec court ruled that it was not an infringement when a gallery(?) shifted a photographic emulsion from paper to canvas without the photographer’s consent.
(ii) Private, non-commercial copying of sound recordings onto “audio recording media” was made legal in 1997 at the urging of the Canadian music industry. Of course, in return for this, we pay a levy on blank audio recording media such as CDs and audio tape. No mention if this new Bill will be accompanied by a new levy on other types of recording media such as DVDs, portable digital music players and cell phones.
The new Bill does make an important change: the original sound recording must be legally obtained.
Please check the date of this article because it contains information that may become out of date. Tax regulations, sales tax rules, copyright laws and privacy laws can change from time to time. Always check with proper government sources for up-to-date information.
