Sunday, 15 June 2008

Amendments to Canada's Copyright Act

Amendments to Canada's Copyright Act were introduced in the Commons on June 12. Media attention has focused on proposed provisions relating to music and videos.

On 21 May I wrote to Industry Minister Prentice expressing concern about fair dealing, costly crown copyright provisions and treatment of orphan works where the copyright is held by a person or organization that cannot be traced by a reasonably diligent search. In response, when the amendments were introduced, I received a form letter that answered none of these concerns.

The amendments may well die on the order paper as Parliament goes into recess. The possibility is that Parliament may not reconvene until well into the autumn with the prospect of an election. In the meantime how are the implications for history and genealogy being assessed? Is each provincial genealogical or family history society going to study them? Or are genealogists interests in copyright going to be marginalized through lack of national coordination?

One of this blog's frequent contributors, WJM, has posted a comment regarding the amendments' photographic provisions worth highlighting, so it's copied below.

Now that the Act has been released, the photography provisions are also worrisome.

The ownership of copyright in photographs will now always be the person who took the photograph. If you hand your camera to a stranger while on vacation, and ask them to snap a shot of your family in front of the Grand Canyon, you will not own the copyright.

Also, if you have a commissioned personal photograph, like a wedding or school portrait, the photographer is the owner. This is already the case for all practical terms, but in the current Act, there is a presumption that the person buying the photography is the owner, unless agreed otherwise. Virtually all photographers make you sign away that right; now you won't have that right to sign away.

Unlike in most developed countries, there will be no right to prevent the photographer (or whoever he or she may license the photography copyright to) to use your image. Nor will there be, as many countries have, a right for the subject of the commissioned portrait to use it, not even for private, domestic purposes. Scanning your own school, wedding, etc., portrait, would not be permitted.

Finally, the term of the copyright will be the life of the photographer +50 years. Unlike in many countries, there is no requirement to date or sign the photograph, so the already existing problem of difficulties in assigning authorship to photographs, determining whether they are or are not under copyright, determining the expiry of that copyright, and determining the ownership of that copyright, will be exacerbated in the future.

The one small mercy is that these provisions will only be prospective, not retroactive.

If you have ever used photographs in a paper or online family history project or publication, you can see that the implications for copyright chill are enormous. It is going to make it difficult for future generations to make use of what will be their collective past.

The family history community, as well as historians of all types, should properly concerned about the implications of giving photographers everything they have demanded of the copyright act, and giving the consumer, the public interest, and the interest of posterity nothing in return.

1 comment:

Chris S said...

"The one small mercy is that these provisions will only be prospective, not retroactive."

Ah, perhaps not.

Go read the 'transitional' section at the bottom of the bill.

As I read it, corporations that own commissioned photographs will have the rights to those works reverted to the photographer - even if they owned them before.