The City of Duncan, British Columbia is a relatively small town of about 5,000 located on Vancouver Island. With 80 totems scattered throughout city, Duncan bills itself as the City of Totems. Duncan has begun to generate some press coverage for adopting a new Totem Copyright Policy which apparently states that the City "holds the copyright policy on the totem collection" and that "the use of the totem images in any form requires approval from the City of Duncan."
As a matter of copyright law, this is seemingly wrong as there is no infringement of copyright for taking pictures of movies of a public sculpture or artistic work. Section 32.2(1)(b) of the Copyright Act provides that:
it is not an infringement of copyright for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work a sculpture or work of artistic craftmanship. . . that is permanently situated in a public place of building.
Moreover, the City's claims raise further questions about whether it owns the copyright in the totems.
Assuming these are older totems, they may be well be part of the public domain. Moreover, the City may have inadvertently jumped into the issue of traditional knowledge, an area that the government has for years targeted for copyright reform but has done little to actually address. Perhaps that will change as a Canadian city makes overbroad copyright claims just a new Industry Minister arrives from the Indian Affairs portfolio.
Yeah, sure. …as long as appropriate royalties go back to the original owners of the City Of Duncan: the native Indians of that region.
How asinine, City Of Duncan!
Wow. One never knows what one will read about on your blog Michael. While I’m now in Alberta, I call Vancouver Island and Duncan home, having grown up there. I left Duncan in 1979, and at that time I don’t believe they had the totem pole numbers they have today. In fact, if I recall correctly, they might have had one or two that were either donated to the city or commissioned by them.
As the up island community of Chemainus enjoyed immense success in drawing in the tourists by way of the murals they had commissioned for the sides of buildings, no doubt Duncan sought to emulate that by collecting and ever increasing the number of totem poles in the park ‘downtown’.
Does an artist give up a copyright when they either donate or accept a commission for a fee? I don’t think so. I doubt the City of Duncan has a legal leg to stand on here. But should they win, they had best be contemplating how they are going to share in any revenues from that copyright with the talented native artists that made those totem poles come to life.
Cool, so if I am the architect for a building in a major city, I can get a cut of every picture of that city taken for use on a postcard, calendar, or any other commercial purpose? Wicked!
Don’t be stupid James. The issue isn’t that artists were trying to collect royalties on the totem poles before this happened, the issue is that the city is now claiming exclusive rights to images that feature them. Presumably this includes the right to charge for that privilege.
Consider what it would mean if the City of Toronto claimed exclusive right to authoritize (and charge for) every reproduction of the image of the CN Tower? Now, entirely laying aside how stupid that would be (exactly as stupid as this is) if the city were charging for the right then YES, the designer of the CN Tower -would- be far more entitled to that money than the City of Toronto.
Your example isn’t a bad one, but you miss the point that it isn’t the artists who started this. Their work existed in the public domain until some other entity (the City of Duncan) tried to claim it belongs to them.
I can be stupid if I want. As can the city of Duncan, apparently.