Nathan Fan is a JD candidate at Osgoode Hall Law School.
Everyone wants a piece of the copyright pie. Professional photographers and performers have felt, for some time, that they have been undercut in their entitlement to an equal slice of the rights pie and receive second-rate portions compared to their other creator siblings. With the main concern of a new Copyright Act being “balance”, has Bill C-32 (the Copyright Modernization Act) handled the division of rights well? As far as photographers and performers are concerned, it seems as if though they’ve finally been awarded their long overdue share of rights, but at a cost some are unwilling to live with.
As the current Copyright Act stands, subsection 13(1) sets the author of a work as the default owner of copyright. However, subsection 13(2) creates a specific carve-out exception for “engravings, photographs, or portraits” that are commissioned (e.g. photos for weddings, schools, etc.). The subsection provides that in the absence of any agreement to the contrary, the first owner of such a work is the commissioner of the work.
This exception has been in place within Canada’s copyright laws since the Act first came into force in 1924. Professional photographers have long felt that such an exception is unfair, given the absence of such specific restrictions for any other types of works. The result is the development of an industry practice of contracting out of the section 13(2) exception and photographers calling for copyright laws to provide equal exclusive rights to reflect reality. The Copyright Modernization Act seeks to eliminate the distinction between photographs and other works by removing section 13(2), putting photographers back on equal footing with other authors (see Bill C-32 section 7).
The Bill also completely removes section 10, which was also an exception to the authorship and term of protection for photographs (see Bill C-32 section 6). Subsection 10(2) deems the author of a photograph to be the owner of the initial negative, or in the case where none exists, the initial photograph. Thus, this provision allows corporate bodies to be authors of photographs. To prevent copyright in photographs from continuing on in perpetuity (as corporations could potentially exist forever), the term of protection for a corporate owner is limited to 50 years after the creation of the photograph, as opposed to the default term of life of the author plus 50 years (section 6). The repeal of section 10 in its entirety again attempts to equalize the rights of photographers with other authors.
The deletion of the photography exceptions drew some concerns from consumers over the protection from a photographer owning and dealing with “their” photographs. The current section 13(2) puts the onus on the photographer to contract with the commissioner of the photograph to ensure copyright in the photograph is retained. However, in repealing section 13(2), the onus now reverts back to the consumer to contract for copyright ownership.
To address this concern, Bill C-32 adds to the list of miscellaneous permitted acts under subsection 32.2(1) to include that it is not an infringement of copyright for an individual to use commissioned photographs or portraits for private or non-commercial purposes, subject to any agreement to the contrary (see Bill C-32 section 38). Thus, the amendment would allow for wedding and family photographs to be used freely for personal purposes and could reasonably accommodate uses such as the inclusion of photographs in a model or actor’s portfolio. However, one concern left unaddressed is the lack of a restraining mechanism that a commissioner of the photograph has over the photographer’s use of the photograph. An example of such a mechanism is present in the UK’s Copyright Designs and Patent Act, which has protected the privacy of persons who commission photographs for private and domestic purposes by providing them the right to restrain the photographer from exhibiting, communicating or issuing copies of the photograph to the public (see section 85).
Bill C-32 also seeks to bring performer rights up to par with other creators by implementing the 1997 WIPO Performances and Phonograms Treaty (WPPT) and WIPO Copyright Treaty (WCT). Section 10 of Bill C-32 proposes to extend moral rights to performers for live aural performances or performances fixed in a sound recording and for the same duration as the copyright term, as required by Article 5 of the WPPT.
Section 17 of Bill C-32 similarly updates the term of copyright protection for performers’ performances. The default term of protection is for a period of 50 years following the end of the calendar year in which the performance occurs. However, if the performance is fixed in a sound recording before the copyright expires, the performer’s copyright continues for 50 years following the year of first fixation. If the sound recording of the fixed performance is published before the copyright expires, the performer’s copyright continues to the earlier of 50 years following the year of first publication and the end of 99 years following the year in which the performance occurred. Further, the sound recordings would retain copyright protection for 50 years following first fixation or, if published before copyright expires, for 50 years following first publication.
Section 9 of Bill C-32 amends section 15 of the current Act to provide performers the exclusive right in digital distribution (making available to the public by telecommunication) of performances in sound recordings as well as the exclusive right to first sale or transfer of tangible copies of such sound recordings. Section 11 of the Bill also extends these rights to the makers of such sound recordings.
While there might be praise for the proposed amendments that finally implement the moral and economic rights of performers outlined in the WIPO Treaties as agreed upon 13 years ago, there are many groups that have voiced concerns that these new rights will be undermined by the increased exceptions given to users in Bill C-32. For instance, ACTRA and AFM Canada hold a pessimistic view of the Bill’s ability to help artists and creators. In particular, they take issue with the legalization of format shifting without any countering royalty measures that would ensure that an income flow is still available to artists. Without a measure of protecting income from private copying regimes, such as extending private copying levies to mp3 players, ACTRA and AFM view Bill C-32 as only half a bill.
ACTRA President, Ferne Downey, posits “how is it ‘balanced’ to allow people to make copies of our work without giving us anything in return? Half the bill is missing, the half that respects and pays creators… extending the private copying levy to digital devices is a win-win solution for consumers and artists…” Downey’s sentiments are echoed by Bill Skolnik, VP of AFM Canada, who questions “how does the government think artists are going to be able to make a living under this scheme?”
Other industry members seem less critical of Bill C-32. For example, Graham Henderson, President of CRIA, has stated in an interview with the CBC that the bill is “a very serious attempt by the government to balance the rights of creators and the needs of users. I think the intentions are good and I think the principles are sound.” While Henderson is satisfied with the proposed amendments in its first incarnation, he also feels that it is yet to be perfected.
In the end, Bill C-32 has provided both photographers and performers with the updated copyright status that they have argued so long and hard for. Setting these artists and creators on the same footing as others has not appeared to have stirred much in the controversy pot in comparison to many other hot topics of the Bill currently under debate. However, whether these photographers and performers will see the full benefit of these new rights will depend on whether the Bill’s proposals are well balanced, which in most cases, is ultimately a decision made in the eye of the beholder.