Who should own your wedding pictures?
In recent weeks, the federal government has moved aggressively on several policy fronts, including proposed new child pornography and hate speech legislation. While those initiatives have generated national headlines, a Senate bill that threatens Canadians' consumer rights and personal privacy is quietly but swiftly working its way through the parliamentary process.
Bill S-9, which was introduced with little fanfare on October 9th by Senator Joseph Day, proposes to repeal two provisions from the Copyright Act that focus on copyright in photographs. Senator Day has been an active supporter of copyright reform and this marks the third time he has introduced a bill containing these provisions.
Moreover, according to Ministry of Canadian Heritage documents obtained under an Access to Information Act request, Senator Day has previously volunteered to introduce copyright legislation into the Senate. Due to Senate procedure, government officials noted that this would allow copyright bills to proceed more expeditiously than equivalent bills introduced into the House of Commons. Their analysis appears to be correct, since Bill S-9 has effectively jumped the queue ahead of other copyright issues, with a Senate committee commencing hearings on the proposal late last week.
Photographers are essential and valued members of the creative community. A great photograph can educate and inspire; copyright law protects photographers by granting them copyright in non-commissioned photographs and by allowing them to contract for the copyright of commissioned photographs.
The proposed bill seeks to augment those rights by changing the default rule on who holds the first copyright for a commissioned photograph.
Since its introduction in 1924, Canadian law has vested copyright in the party that commissioned the work.
Photographer groups claim that this approach has hurt their business, since they are unable to fully participate in the market for "stock photography."
Unfortunately, changing the rule would harm consumers since, unlike other countries, including Australia and New Zealand, the proposal does not make an exception for consumer commissioned photographs taken for personal or domestic purposes.
As anyone who has used a wedding photographer or taken their children for portraits can attest, consumers hire photographers to capture their precious life moments with the expectation that the resulting photographs belong to them. While photographers may seek permission from consumers to use a particularly good picture to hang in their storefront window or place in their portfolio, the current law requires photographers to first obtain the commissioning party's authorization.
If the Senate bill becomes law, this sensible approach would be reversed. Photographers, not consumers, would hold the copyright in works such as wedding photographs and family portraits.
The danger of such an approach should be immediately apparent. Consumers would have no right to control how photographers might use their personal photos.
For example, unbounded by any limitations in the law, photographers might sell such photos as stock photography.
Moreover, a change in the law would literally force consumers to track down their photographer (or the photographer's heirs) in order to obtain permission to use their own archived pictures.
In addition, the bill raises serious privacy concerns since consumers may find themselves unable to stop photographers from using their photographs without their consent.
Although the Supreme Court of Canada has used Quebec law to protect the privacy of the subject of a photograph in one case, the applicability of that decision may be limited to Quebec.
That would leave those in the rest of Canada without sufficient protection, since national privacy legislation contains an exception for the use of personal information for artistic purposes and provincial privacy legislation fails to offer uniform protections.
It is important to note that current Canadian law does not preclude photographers from seeking their clients' permission to obtain copyright in their work. In fact, photographers need only include such a provision in their standard contract.
Accordingly, maintaining the status quo does not deprive photographers of their ability to obtain copyright in their works. It only properly places the onus on the photographer, rather than the consumer, to ensure that an appropriate copyright arrangement is established.
Having introduced the issue of amending the copyright rules associated with photographs, the bill has raised another significant concern.
Photographs form an integral part of our history — whether the history of a family contained in a shoebox full of torn black and white photographs or the history of a nation as told through a camera lens.
Unlike other works of art, however, which typically feature authorship information that allows the public to determine whether the work is subject to copyright protection, old photographs rarely contain such information.
By treating photographs in the same manner as other works, copyright law has complicated the ability of national archivists, researchers, and historians to collect and use photographs, thereby creating limits on this critical part of our national heritage.
For example, archivists report that they are often forced to provide researchers and historians with defaced photographs by noting on them that they are being distributed for research purposes since to do otherwise might constitute copyright infringement.
If parliamentarians are considering reforms to photographic copyright, they should be working to devise ways to better cultivate Canadian heritage and the public domain.
For example, the United Kingdom's copyright law features a provision that allows users to presume that a photograph has public domain status once it is reasonable to do so.
This Senate bill also represents a dangerous trend in Canada toward special interest copyright reform.
The proposed amendments, which have been debated for years, hardly rise to the level of an urgent policy matter.
Unfortunately, just as the government sought to squeeze through a copyright term extension bill in 2003 at the behest of the estate of Canadian author Lucy Maud Montgomery, in this instance parliament is again speeding toward reforms advocated by a single special interest.
Taken together, Bill S-9 not only undermines consumer rights and privacy, it fails to address Canadian heritage concerns, all for a special interest that already enjoys significant copyright protection.
Canadians should move quickly to contact their local Member of Parliament, along with Industry Minister David Emerson and Canadian Heritage Minister Liza Frulla, and inform them that this proposal should be deleted before it develops any further.