Forgotten in its old age

by Aditya

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According to The Canadian Copyright Act (R.S.C., 1985, c. C-42)

Section 10.2.a states:

(2) 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

is deemed to be the author of the photograph... [irrelevant information removed for clarity]

Section 13.2 states:

(2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright.

[Italics added]

A few follow up questions:

1a. Would this mean that without an agreement to the contrary, the customer would be deemed the author & owner? (Owner per 13.2, owner is the author per 10.2.a

1b. Does 13.2 provide the photographer with a legal way to retain ownership of copyright?

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Section 13.3 may be more applicable in this case, however the wording I'm interested in stays the same: "...in the absence of any agreement to the contrary..." –  Keypunch Jul 21 '11 at 5:58

3 Answers 3

up vote 10 down vote accepted

EDIT (7 November 2012)

I'm glad to be able to announce that, as of today, the provisions of section 13(2) of the Copyright Act (RSC 1985 c. C-42) are repealed through Bill C-11, and moral rights in photographic work now vest in the photographer (and let's not forget portraitists in other media either) unless normal work-for-hire conditions exist, or an agreement to the contrary has been established.

It's about time, and my thanks to CAPIC and PPoC for keeping up the fight all these years.

That makes the rest of this answer of historical interest only.


The "agreement to the contrary" needs to be very explicit and carefully worded.

The default assumption in fields deemed to be graphic arts (traditionally, things like engraving and lithography, but under which photography also falls by law) is that the contribution of the graphic artist is of a purely technical nature. In other words, one is normally deemed to be nothing more than a "camera operator", someone who merely records what is -- like an engraver or lithographer who copies an illustration for use in print, it is assumed that you are merely a walking set of technical skills with a tool kit.

The reason it needs to be carefully worded is because it is very difficult, under Canadian law, for a person to relinquish their natural copyright in a work. It is impossible, for instance, to release any work into the public domain voluntarily -- the best you can do is to grant license to everyone for every purpose, gratis, and without requirement for attribution, but that license is revocable at will. Similarly, assignment of all rights in a work (which the customer holds naturally under commission) is difficult to make in an irrevocable manner, so the language around the agreement needs to be clear regarding both the intent as to who will hold copyright and as to who has creative control in the production of the image.

If it's not clear that you, as the photographer, are acting in the capacity of a creative artist, then even an explicit agreement that you will hold copyright in the resulting work may not, in fact, be legally binding. The intent of the law surrounding the alienation of natural copyright is good; the fact that photography is deemed in the Act to be little more than a technical process in the reproductive arts is not so good.

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1  
A very reasonable, logical answer, but are there references I could look at to back this up? Are you speaking from personal experience? –  Keypunch Jul 21 '11 at 14:08
    
Yes, I am, and I'm not alone. I'd suggest you take a look at the resources (most of which are publicly avaiable) at PPoC (Professional Photographers of Canada) for more information. The interpretation of statute is always subject to existing case law; the statute (as it stands) allows the technician interpretation and precedent guides decisions in that direction. PPoC and CAPIC have been lobbying for a clear distinction between creative and "process" photography in statute, which would be necessary to override existing decisions in the default case. –  user2719 Jul 21 '11 at 23:20
    
Thanks. Too bad I still need 5 more rep to vote up. –  Keypunch Jul 22 '11 at 15:25

Take this answer with a grain of salt: I'm not a lawyer, nor do I live in Canada.

I think the answer to both of your questions is "yes", based on the text you have there. This is consistent with my understanding of US law (which is often similar to Canadian law) -- the copyright of "works for hire" is generally owned by whoever commissioned the work. This is why actors don't own copyright on the movies they play in, why journalists don't own the copyright on their articles, and why recording companies own the songs of their artists. However, if you agree in advance that the artist will retain the copyright, then that's what will happen -- the law just specifies who gets copyright by default.

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Except that work for hire applies specifically to work created in the ordinary course of employment, so if I were, say, a press photographer my work would be owned by the agency or corporation I worked for. As an independent operator or when working pursuant to a contract of commission not deemed to be ordinary employment, the artist has natural copyright in the work in the USA (absent an agreement stating otherwise). Exactly who the "creator" of the work is, though, can be inferred from other parts of the agreement if not stated explicitly -- (cont'd) –  user2719 Jul 21 '11 at 7:25
    
(part 2) -- you may find that if the customer is allowed to be too specific in directing your work and you haven't added any language to the agreement stating otherwise, that your role in the creation could be interpreted as mere technical execution. That's a hard hole to stumble into accidentally under American law; it is the assumed state of affairs in Canada. –  user2719 Jul 21 '11 at 7:27

I believe you are mixing two different things - authorship and ownership. Authorship rights are non-transferable, and always will remain with, in this case, owner of negative at the time it was made.

But, if work was ordered and paid for, the author would not have any copyrights to the work. The copyrights - so any rights to use, publish, resell, etc., will stay with someone, who, colloquially speaking, hired the photographer.

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