Copyright Law

Copyright Law                                                      

Until 2012, the Canadian Copyright Act discriminated against freelance photographers because it did not automatically recognize their ownership over the work they created in the course of their employment.

Due in part to CAPIC and PPOC’s lobbying activities with the federal government, Bill C-11, an Act to amend the Copyright Act, voted at third reading and signed by the Governor General in June 2012, rectifies part of this injustice.

The new Copyright Act came into force on November 7, 2012.

Given that the legislation is subject to certain exceptions, and that it is quite complex to enforce, CAPIC and PPOC still recommend that its members continue to use standard agreements and other tools made available to them to protect their copyrights.

The Canadian Copyright Act was amended on November 7, 2012.
In Canada, copyrights are protected by the Copyright Act, c. C-42. Since November 7, 2012, the Canadian Act finally grants ownership of the copyright to professional freelance photographers for work created in the course of their employment.

The Copyright Act was amended in the Spring of 2012, under Bill C-11, rectifying the injustice that prevailed hitherto, while the copyright of photographs that were ordered belonged to the client by default.

Canadian photographers are now, by default, the first owners of the copyright of the images they produce, as are illustrators, musicians, painters, and writers with their respective work. This applies to both photographs commissioned and paid by a client, and to photographs taken for non-commercial purposes.

Therefore, photographers no longer have to sign an agreement with their client stating that they are the first owner of the copyright; the Act now guarantees ownership by default.

However, it is still recommended to draft a contract that will outline the various business terms, such as image use, licenses sold, and terms of payment. For information purposes, it is always useful to specify in the contract that the photographer is the first owner of the copyright of the images produced.

What does this mean for photographers?

Until the adoption of Copyright Modernization Act, photographers were not on an equal footing with other creators. Under the Copyright Act, they were not considered artists, but technicians. When a customer ordered a photo from a photographer, the copyrights belonged to the customer by default.

It was necessary to obtain a signed agreement with the customer if the photographer wanted to “own” the rights to the work they produced!

The Copyright Modernization Act has rectified this aberration in the former Copyright Act. As of November 2012, photographers are the first copyright owners of the works they produce. Regardless of whether the work is a work of art, a personal work, or the result of a commercial order, the photographer automatically owns the copyright and the moral rights.

This applies to all new photographs taken after the Act was proclaimed in force, and not to photographs taken previously.

However, the Copyright Modernization Act does allow some people and institutions to use copyright-protected photographs without the photographer’s authorization.

CAPIC and PPOC still recommend drafting a contract that addresses the following issues: use of images, licenses granted, terms of payment, etc. It will always be worthwhile to specify in the contract, as a point of information, that the photographer is the first copyright owner of the image produced.

It is important to remember that a quotation or an invoice is not a contract, even though it sometimes includes certain contractual elements.  A contract requires the signature of both parties.

Warning: Three amendments made to the legislation are limiting the photographers’ rights, and those of all Canadian artists.

FIRST AMENDMENT

Exceptions for Private Use
The following information, summarizes the amendment to the Canadian Copyright Act regarding the private use of photographs.

In the case of a private order for a photograph or image made by an individual for non-commercial purposes, the person who makes the order has the right to reproduce the photo as he sees fit, without the photographer’s authorization. This person has the right to authorize anyone to do the same. He may print as many copies as he wishes, distribute them, or publish them on the Internet without limits.

We are not talking about an organization or a corporation.

We are talking about personal portraits, artist’s portraits, wedding photos, family photos, and any photos not used in a promotional or commercial context.

However, any commercial use is prohibited without the author’s authorization. The customer may give the photo to another individual (such as his mother or his sister), but may not sell it. He also may not give it to an organization (for example, the firm for which he works), so that the business can use it in its communications or on its website, because this constitutes commercial use, related to marketing and public relations.

Obviously, this clause poses a problem for photographers who offer their services to individuals (wedding photographers, family portrait photographers, etc.).

Of course, the Act provides for the default position.

In order to override that default, customers should sign a contract containing the following clause: “No reproduction is permitted without the photographer’s written authorization.”

SECOND AMENDMENT

Exceptions for the education sector
This information summarizes the provisions in Canada’s new Copyright Modernization Act that deal with the use of photographs in activities related to education.

Until last spring, educational institutions were required to pay royalties for each use of a copyright-protected work. Agencies mandated by authors and publishers, such as Copibec, redistributed the funds collected to the creators.

For the time being, they no longer have to do this. The Copyright Modernization Act appears to authorize the use of any work in an educational context, free of charge and without prior permission, even if these works are protected by copyright. In addition, this educational exemption may extend beyond the walls of schools, CEGEPs and universities. Its definition is broad and somewhat vague.

Photographers who want to prevent schools and teachers from using their images free of charge have no other choice than to protect them with a digital lock, such as a file access code and a password.

The Copyright Amendment Act makes it illegal to bypass these protective locks. Since this prohibition prevails over the exemption, Canadian educational systems must comply with it.

Obviously, these locks do not protect the print version of works, only the digital version. Moreover, an image purchased and then published online by a third party, such as a magazine, may be used with impunity by an educational institution, even if the author’s website is locked.

Therefore, at this time, there is no perfect solution for photographers.

Addendum for Quebec
Copibec wishes to correct certain information presented below:

According to Copibec, the inclusion of education in fair dealing does not mean that educational institutions can reproduce anything without permission. This exception is subject to very specific criteria and will involve case-by-case assessment. It is likely that the courts will have to decide.

Hélène Messier, Director General of Copibec, points out: “It’s an illusion to say that everything done by educational institutions is covered by fair dealing. All this will have to be assessed according to the criteria established by the Court – for example, the reproduction volume, the proportion reproduced, and the purposes of the use.”

(source: ledevoir.com/culture/actualites-culturelles/366262/a-l-ecole-des-droits-d-auteur)

THIRD AMENDMENT 

Exceptions for creation


This information summarizes the provisions in Canada’s new Copyright Modernization Act that deal with non-commercial creation.

From now on, anyone can make a copy of any published work on the internet, if it is not protected by a digital lock. The user can even share a copy with other individuals, as long as there is no commerce.

Bill C-11 allows anyone to use a published work to create a new work, such as a remix or a mashup, and to publish it in turn, on condition that this is done solely for non-commercial purposes and, in principle, that the source of the original work is credited.

Photographers who want to prevent their images from ending up in hundreds of dubious mashups or in the latest hot viral video (without deriving any benefits!) must protect their works with a digital lock. A digital lock is a technical measure that limits access to the works contained on a website or on digital media. The owner of the website or the media may require, for example, that the user enter an access code or an ID/password combination. Otherwise, the user may have to click an “I Accept” button after the description of the terms and conditions of use, just like the acknowledgment given when buying software on a DVD or by download. The Copyright Act makes it illegal to bypass this protection. This is the only way to prevent anyone from doing whatever they want with photographers’ works.

But this solution results in several problems: notably, it hurts marketing because it prevents search engines like Google from identifying and indexing the context of a protected site. An unindexed site does not appear in the search results.

Once again, there is no perfect solution.

Any person can make a copy of any published work on the Internet if it is not protected by a Technical Protection Measure (TPM*). Moreover, anyone can use published work on the Internet for creating a new one (remix or mash-up) provided it is used for non-commercial purposes.

Authors who wish to withdraw their work from this right can set a digital lock (TPM* system) on their website and in their work distributed on CDs, DVDs and other digital media.

*TPM: “Technical Protection Measures” Protection measures restricting access to work published on a website or digital media. For instance, the website or support owner may require that the user log in using an access code or a username and password combination.  Or click on an “I agree” button following the terms and conditions clearly describing the content use restrictions. These types of protection measures are frequent for software sold on DVD or online.

Photographers may restrict access to their websites, mobile applications and other digital media (DVDs and hard drives) by setting this type of technological protection measure. The Copyright Act prohibits anyone from circumventing these protection measures. This prohibition applies to exceptions set in the above amendments (Canada’s education systems).

There are many problems associated with this type of approach. Other than the fact that it forces the author to buy potentially costly software that requires good technological knowledge, it cancels the search engine optimization to which it is applied. In fact, search engines like Google do not index the content of protected sites; therefore, these sites are not included in search results.

 

REFERENCES PROVIDING LIMITED PROTECTION

These references do not protect work under the exceptions provided for in Bill C-11, but they restrict all other uses.

DRM: Digital Right Management
Information about authors and the licenses or rights they wish to grant:

Examples:
© John Doe, 2007, none of the contents may be reproduced in any form without prior written permission.
© John Doe, 2007, the author’s credit should, at all time, be included with the work.
© John Doe, 2007, low resolution reproduction is permitted only on the Internet.

This information must stand out on the website or digital media, and must be included with each work in order to have legal effect.

Authors may also include a watermark on their pictures, and avoid publishing high-resolution images.

 

 What Does Copyright Mean?

The term “Copyright” literally means the right to reproduce. It includes all forms of reproduction, publication, public display and other uses.

Copyright is comprised of international laws that protect “intellectual property.” These laws, which vary from one country to another, also apply to patents, trademarks, industrial designs and trade secrets.

In short, Copyright protects the expression of original ideas, but not the information itself. This expression is referred to as “work” or, in the case of photos and illustrations, “artistic work”. Copyright consists of a set of rules on how the “work” can be used.

Copyright is founded on the principle that: one who creates or possesses the work can control how it is used. To be protected under copyright legislation,
the work must be:
• An original and not a copy of an existing work
• Fixed, exists in some identifiable (i.e. physical, visual, electronic) form.

Moreover, the work has to have been created by either a citizen or resident of Canada, or in connection with any country that adheres to the Berne Convention or a similar international copyright treaty, or is first published in such a country. In addition, the work must have been created by a citizen or a resident of Canada, or in connection with any country signatory to the Berne Convention or another international treaty protecting the copyright or have been published the first time in such a country.

The Canadian law on Copyright protects work created in Canada. When a work that was produced in Canada is used in another country, then that country’s copyright law would apply.

 

CAPIC’s and PPOC’s action

In 2001, CAPIC partnered with PPOC (Professional Photographers of Canada). Together, they created the Canadian Photographers Coalition and lobby the Canadian government to change the Copyright Act.

CAPIC and PPOC fund their share of CPC’s lobbying activities through financial contribution from members and non-members to its legal fund.

CAPIC and PPOC members traveling to Ottawa to support the cause of photographers do it on a voluntary basis, and spend long hours away from their work to promote the interests of their fellow photographers. They are not paid during this time, and only their travelling expenses are reimbursed upon presentation of a receipt.

All funds that have been raised since 2001 were directly invested in the copyright reform.

 

 

Frequently Asked Questions

What does Copyright mean?
Copyright is the exclusive right of the creator of an original work, to control the reproduction of his/her work. This right allows the author to declare the authorship of his/her work and to control reproduction.

How can I indicate that my work is Copyright protected?
The international convention to indicate that work is Copyright protected is the symbol © (Option + ‘g’ on a Mac), followed by the year the work was created and the name of the author.
Example : © 2005 John Doe

Do Canadian creators own the rights to their works?
Yes. All Canadian creators of original work automatically hold the copyright on their original works (the ones they have created).

As a photographer, how can I make sure that I protect the copyright on commissioned work?
The new law on copyright automatically makes you the first owner of the work that is commissioned. CAPIC and PPOC still recommend to photographer to write in their contract that they are the copyright owner.  This is only for educational purposes toward the clients that do not know that the law was changed. But it is not mandatory because they do own copyright no matter what on commission or non-commission work by default. “No reproduction is permitted without the written approval of the copyright owner”, this should be included in every contract and signed to become legal, otherwise the law still gives the copyright to the photographer but gives the right of reproduction to private client. Photographs for private use can be distributed without the consent of the copyright owner. The photographer needs to stop this clause in the law by stating in is contract: “No reproductions are permitted without the written approval of the copyright owner”.

As an illustrator/designer of digital works, how can I protect the copyright on commissioned work?
According to the Law on Copyright, illustrators and creators of digital works automatically hold the copyright on commissioned work, unless you have sold or transferred these rights to a third party.

What are my moral rights with regards to work that is protected under Copyright?
All creators of original works hold moral rights with regards to their work. Moral rights include:
• The right to associate his/her name with his/her work (mention);
• The right to the integrity of one’s work – without the work being cropped, cut, excessively trimmed or altered.

Can I sell my moral rights to my work?
No, moral rights cannot be sold or transferred. Creators can waive their moral rights. This means the creator agrees not to enforce his/her moral rights.

 

 

Some clients have asked me to sell the copyright and moral rights to my work. What should I do?
As the creator, the choice is yours. If you decide it is in your best interest to sell the copyright or waive any moral rights to your work, you must properly negotiate monetary compensation for these rights. However, in any case, you should be warned that by no longer possessing the moral/economic rights to your work, you may forever lose the opportunity to obtain fair recognition.

 

Timeline of CAPIC’s and PPOC’s work toward Copyright amendment

1992-1993
CAPIC participated in the Department of Communications Consultative Committee advising the government with respect to revisions of the Copyright Act.

Early 1994
CAPIC created a Digital Technology Committee (DTC) to bring together leading stakeholders in the digital revolution. The members of the Committee included representatives from the major hardware, software and imaging technology companies, in addition to the legal, publishing and design sectors. Finally, the Committee included CAPIC members of national reputation in the development of visual communications. In 1995, CAPIC formalized relations with the American Society of Media Photographers (ASMP). CAPIC developed a “reciprocal membership” to encourage worldwide dialogue on the issues affecting visual communicators today.

1996
Under the Status of the Artist Act, CAPIC was recognized as the sole bargaining representative for commercial photographers and commercial illustrators working with the federal government and all agencies and crown corporations.
Also in 1996, CAPIC worked with the Professional Photographers of Canada and other industry allies, under the banner of the Canadian Creators Coalition, to seek changes to the Canadian Copyright Act.

April 1997
The, amendments to the Canadian Copyright Act were passed into law by the Parliament of Canada, including two proposed by CAPIC – extending the term of copyright in photographs and blocking the transfer of rights to a photograph until the photographer has been paid in full for their work.

Summer of 1997
CAPIC formally became involved in the creation of a new copyright collective that would license electronic rights for creators. This group was called The Electronic Rights Licensing Agency (TERLA). TERLA was absorbed by CANCOPY, now known as Access Copyright, in 1999.

September 2001
CAPIC, along with the Professional Photographers of Canada (PPOC), formed the Canadian Photographers Coalition (CPC) to push the Government of Canada to a final resolution of the Copyright Act as it relates to photographers and commissioned work.
This Act stated that “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.”
There were also two other issues that the CPC was driving to change: Section 10(2) “The person who was the owner of the initial negative or other plate at the time when that negative or other plate was made, or was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate, is deemed to be the author of the photograph…”
The term of copyright protection in photographic work needed to be changed to bring Canada’s Copyright Act into compliance with the World Intellectual Property Organization’s copyright guidelines.

2004
The Heritage Review Committee recommended to Canada’s Parliament that Canadian photographers be given the right to automatically own the copyright in commissioned works.

June 2005
On the 20th of June, 2005, Bill C-60, An Act to amend the Copyright Act, had its first reading in the First Session of Canada’s 38th Parliament. The Bill died on the Order Paper when Parliament was dissolved on November 29th, 2005.

November 7, 2012 – Present Day
Since, November 7, 2012, the Canadian Act finally recognizes professional freelance photographers’ ownership of copyright works they produce as part of their work.
The law on copyright was amended in spring 2012, Bill C-11; correcting the injustice that prevailed hitherto, that the copyright of the photographs, the subject of a command, belonged by default to the client.
Canadian photographers are now the first owners of the copyright rights to the images they produce, similar to particular illustrators, musicians, painters and writers. This applies to both photographs commissioned and paid for by a client and photographs taken outside of a commercial context.

©The Canadian Association of Professional Image Creators (CAPIC) 2017