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COPYRIGHT REFORM PROCESS
SUBMISSIONS RECEIVED REGARDING THE CONSULTATION PAPERS
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Submission from Canadian Photographers Coalition received on September 17, 2001 via e-mail
Subject: Submission on Consultation Paper on Digital Copyright Issues
Version PDFCanadian Photographers Coalition
The Photographers
Digital Copyright Issues Submission
The Canadian Photographers Coalition (CPC) was formed in August
2001 to support the extension of copyright fairness to Canada's
fourteen thousand working professional photographers.
Our coalition represents the interest of two professional
associations - the Canadian Association of Photographers and
Illustrators in Communications (CAPIC) and the Professional
Photographers of Canada (PPOC).
Together, our groups represent professional photographers working
in all aspects of our craft and in all regions of the country.
Coalition members range from individual photographers operating
one-person businesses to people working in large studio
partnerships.
Canadian photographers are recognized internationally for the
quality of their work. Pictures by photographers such as Karsh and
Malak are prized by collectors around the world. Canadian
photographers also are becoming increasingly prominent on the
Internet. Look at the works on the following sites:
www.fehro.com
www.plexman.com
www.auraphotographics.com
Photographers also make valuable contributions to the economic
vitality and cultural identity of our home communities and to Canada
in general.
CPC welcomes the opportunity to comment on the Government's
consultation paper on digital copyright issues. While we have many
concerns about Canadian copyright law, we intend to focus on two
issues.
Our primary concern is how the current Copyright Act - exacerbated
by the emergence of digital imaging technology - has become a
barrier to Canadian photographers seeking to promote their works
and expand their business, while at the same time creating confusion
about ownership of copyright issues.
Second, we are worried that Canada's failure to ratify the WIPO
Copyright Treaty leaves the work of Canadian creators and
publishers vulnerable in the international market. The ratification
of the WIPO Copyright Treaty by Canada is becoming increasingly
critical in the borderless world of the Internet.
The current Copyright Act puts Canadian photography at a
disadvantage
Commissioned Photographs
Like most international copyright laws, the Canadian Act generally
awards the first ownership of a work's copyright to its author. This
principal is laid out in Section 13(1) of the Copyright Act, which
states:
Subject to this Act, the author of a work shall be the first
owner of the copyright therein.
Unlike most other creations, however, commissioned photographs are
specifically exempted from this section of the Act. Under Canadian
law, the commissioner of the photograph, not the author, is deemed
to own the copyright of the image, absent any agreement to the
contrary.
This provision contrasts sharply with most other works - such as
literary pieces or musical performances -where the ownership of
first copyright rests with the author, even in cases where the work
was commissioned by someone else.
This provision has led to some unintended inequities. For example,
Canadian magazine publishers frequently commission freelance
journalists to write stories for publication and freelance
photographers to take pictures to illustrate them. In this situation,
absent any agreement to the contrary the writer would own the
copyright in the story but the photographer would not own the
copyright in the photographs.
Perhaps even more disconcerting, Section 13 (2) of the Act also
places Canadian photographers at a disadvantage to their
international peers. In virtually every other industrialized country,
including the U.K., France, Australia and the United States,
photographers retain first ownership of copyright in commissioned
works - just like any other creator.
This ongoing distinction in the treatment of the creative works of
authors reflects an archaic view of photographers and the tools they
use to create their work. When Canada's first Copyright Act was
passed in 1924 it was modeled on British law, which at the time
excluded photographers from enjoying the same copyright privileges
as other creators, namely the ownership of commissioned
photographs.
The exception in the British law was based on the technological
evolution of photography. Originally, there was only one type of
photography - Daguerreotype - a process that recorded one-of-akind
images on glass using mercury. It was technologically
impossible to duplicate Daguerreotype images or reproduce them in
newspapers, books or magazines. Given that there could only be one
copy of any photo, it made sense to assign the copyright to the
commissioner of the work. Also, when the British law was first
drafted , there was an artistic prejudice that regarded photographs
as 'recordings' rather than 'creations' and therefore unworthy of
copyright.
While many countries, including Britain, France and the U.S., once
legally discriminated between photographers and other creators, all
have since changed their laws to give photographers the same
copyright rights for commissioned works as other creators.
Australia is the most recent country to address this historical
inequity, amending their Copyright Act last year to place their
photographers on an equal footing with their international peers.
This change reflects the reality that multiple copies of photographs
can now be made, as well as the modern understanding that
photographers are 'creators'. Only Canada has failed to redress this
historical injustice.
Canada has recognized the creative legitimacy of photography in
other ways, through such public institutions as the Canadian Museum
of Contemporary Photography, for example.
Our failure to keep up with international copyright law has become a
major barrier to promoting Canadian culture because it reduces the
ability of photographers to display their commissioned works. It
also impedes Canadian professional photographers from attracting
new business by limiting their ability to display previous
commissioned work, absent any agreement to the contrary.
When the photographer is not the author of the photograph
In addition to the unfair way it treats commissioned photographs,
the Copyright Act also discriminates against photographers by
deeming the original owner of the negative, not the photographer, as
its original author. Section 10(2) states:
The person who
(a) was the owner of the initial negative or other plate at the
time when that negative or other plate was made, or
(b) was the owner of the initial photograph at the time when
the photograph was made, when there is no negative or other
plate,
is deemed to be the author of the photograph.
Again other creators such as painters are always deemed to be the
authors of their works, even if someone else was the original owner
of the canvass. Deeming that the owner of the negative is the author
of the photograph is both unfair and morally wrong. The Copyright
Act's inversion of this fact is an insult to Canadian photographers
because it needlessly treats them differently than other Canadian
creators.
Canadian copyright law favours international
photographers over Canadian Photographers
To add further insult, once the World Intellectual Property
Organization's (WIPO) Copyright Treaty is ratified, Canada will
actually give better copyright protection to non-Canadian
photographers than to domestic photographers. Through WIPO and
other international IP treaties, Canada has agreed to promote
international recognition of intellectual property rights, including
copyright.
These agreements provide the certainty needed for inventors and
creators to share and publish their works without worrying that the
copyright will be infringed outside of their country of origin. In a
digital world that knows no borders, this protection has become even
more vital.
The fundamental underpinning of these agreements is the concept of
national treatment. National treatment provides that signatory
countries, such as Canada, must recognize and protect the same
copyrights that a person enjoys in their home country (if the country
is a signatory to the treaty).
For example, if an American author owns the copyright of a literary
work under U.S. law then Canada must provide that author with the
same copyright recognition. For Canadian photographers, 'national
treatment' simply ensures that the second class status given to
commissioned works under Canadian law also applies everywhere
else in the world.
Again the legal inequities can be bizarre. Compare the case of a
Canadian photographer commissioned to provide photographs for a
Canadian magazine, with an American photographer commissioned to
provide photographs to an American magazine. Absent any
agreements, the American photographer would own the copyright in
his or her photographs while the Canadian photographer would not.
However, once WIPO is ratified, the American photographer also
would own the copyright to these works in Canada, meaning he/she
would be free to display these works in Canada, while the Canadian
photographer could not display theirs. The Canadian photographer
could not display his or her works in the U.S. either because the U.S.
only has to recognize the same copyright ownership that the
photographer is accorded in Canada.
In this scenario, our copyright law will actually encourage the non-
Canadian photographers to distribute their commissioned works in
Canada, but Canadian photographers will not be able to distribute
their similar works, absent any agreement with the commissioner.
This is exactly the opposite outcome of stated cultural policy and
contrary to the very underpinnings of the Copyright Act. It is also a
serious disadvantage for Canadian photographers seeking to use their
previous commissioned works to market their services.
The Digital Context
The Internet provides a platform for Canadian creators to easily
share their works, not only with more Canadians but around the
world.
As the discussion paper notes, one of the government's stated goals
is to promote on-line Canadian content as part of its Connecting
Canadians Agenda. The ongoing development of the Internet
combined with improved technology has been a catalyst in the digital
dissemination of Canadian photographic works.
The Internet has made it possible for Canadians to instantly enjoy
the works of photographers from across Canada in their own home or
business. And as Canadian photographers increasingly make use of
the web to market themselves and their services, awareness and
appreciation of their talents is expanding to new and distant
audiences.
Digital technology also lets professional photographers conduct
more of their business electronically - everything from contracting
to the delivery of the final product. Professional photographers
also have found the Internet provides an excellent way to digitally
display existing works as a marketing tool.
Canadian photographers are eager to take advantage of new media to
share their works around the globe and to develop new business
opportunities. In the borderless world of the Internet, however,
Canada's current copyright laws are a major impediment to meeting
these goals.
Right now, the Copyright Act makes it easier for Canadians to see
the work of foreign photographers than photographers living here in
Canada. Not only is this a barrier to Canadian photographers using
the Internet to market their services, it also creates confusion over
copyright ownership in the digital context.
Given that, under WIPO, Canada will have to provide copyright
protection to some international photographic works but not similar
Canadian works, it will be hard for Internet service providers to sort
out their copyright obligations once WIPO comes into effect. An ISP
linking to the sites of a Canadian photographer and a non-Canadian
photographer will be faced with two different sets of copyright
rules for commissioned photos. Respecting copyright obligations
will become a Byzantine task unless Canada modernizes its
treatment of photographic works.
Another area of digital confusion is the different treatment given to
photographers and videographers under 13(2). In digital media, it is
virtually impossible to distinguish between a digital photograph and
a video still, yet the treatment of commissioned works in Canada for
the two can be vastly different.
Recommended Action
The CPC believes it is essential that Canada change its copyright
laws to give Canadian photographers the same legal rights as other
Canadian creators and photographers in other countries.
Specifically we recommend that sections 13(2) and 10(2) of the
Copyright Act be repealed, making it more consistent with
international standards and practices.
This change would promote the dissemination of Canadian
photographic works by putting photographers on a level playing field
with other domestic creators. More importantly, it will correct the
ludicrous and commercially harmful loophole that will give non-
Canadian photographers first ownership of copyright in
commissioned works in Canada while denying the same right to
Canadian photographers.
This change will help Canadian photographers share their works on
the Internet and market their services worldwide. It also will
reduce the confusion created by the fact that Canadian copyright
laws are out of step with international standards.
Ratification of WIPO
Like many other creators and publishers, the CPC is concerned about
the time it is taking Canada to ratify the WIPO Copyright Treaty.
The treaty is critical to promoting Canadian content on-line because
it provides a framework for international recognition of Canadian
creators' and publishers' copyright.
While it has been nearly four years since Canada signed on to WIPO,
several outstanding issues must still be addressed to bring Canada's
Copyright law into compliance with the agreement. Specifically
corporate ownership and terms of protection in photographs under
section 10 of the Act, and moral rights for performers must be
addressed to make Canada's laws WIPO compliant.
CAPIC and the PPOC are members of the Copyright Coalition of
Creators and Producers. CAPIC is also a member of CANCOPY, the
Canadian Copyright Licensing Agency. Together, these two
organizations represent the interests of creators, producers and
publishers of creative works in Canada. In separate submissions on
the Digital Issues Consultation Paper, both groups have urged the
federal government to ratify the WIPO Copyright Treaty and the WIPO
Performances and Phonograms Treaty as quickly as possible to
facilitate electronic commerce in Canadian works and the
dissemination of Canadian on-line content. The CPC completely
supports this recommendation.
Conclusion
Canadian photographers are some of the best in the world. Like other
creators, we are eager to embrace digital technology to share our
works with Canadians and others around the world.
Photographers do not want special treatment to prosper in the
digital world; all we are asking is simply to play by the same rules
applied to other domestic creators and to photographers working in
other countries.
CONTACT INFORMATION
The Photographers
c/o Canadian Photographers Coalition
100 Broadview Avenue; Suite 322
Toronto, ON, M4M 2E8
416-462-3677
membership@capic.org
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