A few days ago, Bill C-11, the Copyright Modernization Act, received Royal Assent. This means that Canadian photographers will be treated the same as all other Canadian creators and they will finally have similar rights to photographers in most other countries.
The new Act is not yet officially in force [update: much of the new Act became law on November 7], but for photographers, here’s a quick look at some of the changes to the Copyright Act.
• Section 10 has been repealed. This section used to say that the person who owned the film or memory card was the Author of the pictures. Now, the photographer is the automatic Author. Only the Author has Moral Rights.
• Section 13(2) has been repealed. This section used to say that the person who hired a photographer was the copyright owner of the pictures. Now, the photographer is the copyright owner.
Combining these two changes means the photographer is now the default Author (and Moral Rights holder) and default copyright owner in their work. Copyright lasts for the life of the Author plus 50 years.
• Fair Dealing now includes parody and satire. I bet most folks don’t really know what those are or what the difference is between them. Including parody under Fair Dealing makes sense but I’m not so sure about satire. I’m not aware of any other country allowing satire. The US copyright law allows only for parody.
• There’s a new section dealing with Non-commercial User-generated Content and I think this has potential for problems:
29.21 (1) It is not an infringement of copyright for an individual to use an existing work or other subject-matter or copy of one, which has been published or otherwise made available to the public, in the creation of a new work or other subject-matter in which copyright subsists and for the individual — or, with the individual’s authorization, a member of their household — to use the new work or other subject-matter or to authorize an intermediary to disseminate it, if
(a) the use of, or the authorization to disseminate, the new work or other subject-matter is done solely for non-commercial purposes;
(b) the source — and, if given in the source, the name of the author, performer, maker or broadcaster — of the existing work or other subject-matter or copy of it are mentioned, if it is reasonable in the circumstances to do so;
(c) the individual had reasonable grounds to believe that the existing work or other subject-matter or copy of it, as the case may be, was not infringing copyright; and
(d) the use of, or the authorization to disseminate, the new work or other subject-matter does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the existing work or other subject-matter — or copy of it — or on an existing or potential market for it, including that the new work or other subject-matter is not a substitute for the existing one.
• Section 32.2 (1) received a new addition. It’s not a copyright infringement…
(f) for an individual to use for private or non-commercial purposes, or permit the use of for those 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.
• For non-commercial copyright infringement, the range of statutory damages has been substantially lowered from $500 to $20,000 down to $100 to $5,000.
• The new Technological Protection Measures and Rights Management Information is interesting:
“circumvent” means (…) to otherwise avoid, bypass, remove, deactivate or impair the technological protection measure, unless it is done with the authority of the copyright owner;
“technological protection measure” means any effective technology, device or component that, in the ordinary course of its operation,
(a) controls access to a work (…) whose use is authorized by the copyright owner; or
(b) restricts the doing (…) of any act referred to in section 3 (…)
[note: section 3 lists the rights granted under copyright such as the right to copy, publish, publicly exhibit, etc].
41.1 (1) No person shall
(a) circumvent a technological protection measure (…)
So, does this clause mean that it’s a now copyright infringement to remove or alter a watermark or any other copyright information in a photo?
For more on Canadian copyright laws, Canadian Copyright Law, 4th edition by Lesley Ellen Harris is the book to get.
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.
