The 61 reforms to Bill C-61 project concludes with one of the most puzzling provisions in the bill. Bill C-61 adds the following to copyright owners' basic set of exclusive rights: in the case of a work that can be put into circulation as a tangible object, to sell or […]
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While they have received little attention, Bill C-61 contains several provisions long demanded by professional photographers. Under current copyright law, where a photograph is commissioned (ie. school photos, weddings, etc.), the copyright in the photo rests with the person who commissioned it (ie. the consumer). Photographers have long thought this unfair and sought to obtain exclusive copyright in the photos. Absent a legislative change, most photographers use contract to obtain the rights they require.
Bill C-61 would change the current default by deleting the provision that grants copyright to the commissioner of the photograph. In an attempt to alleviate consumer concerns, the bill also includes a provision that states that it is not an act of copyright infringement:
for an individual to use for private or non-commercial purposes a photograph or portrait that was commissioned by the individual for personal purposes and made for valuable consideration, unless the individual and the owner of the copyright in the photograph or portrait have agreed otherwise.
This consumer-focused provision address some, though not all, of the consumer-related concerns with the photography reforms since an exception is a far cry from being the actual copyright owner.
While the new statutory damages provision may create a ceiling of $500 in damages for certain infringements, it also creates a minimum that is higher than the current statute. The drafting is complex, but the change is as follows:
The problems associated with the statutory damages reform extend beyond the questions it raises. The provision is presumably a response to the over 30,000 file sharing lawsuits in the United States which each bring the prospect of millions in liability. Politically, the image of that kind of liability for Canadians would not sell well on the campaign trail. Yet notwithstanding the intent, the current provision does very little to address the prospect of enormous liability for all sorts of activities.
The new provision would likely reduce liability for downloading (though downloading of sound recordings is already arguably permitted due to the private copying levy), however, it certainly does not address uploading or the making available of content on file sharing networks without authorization. This means that BitTorrent users – who simultaneously upload and download – will still face the possible liability of $20,000 per infringement. Similarly, uploading a copyrighted work to YouTube raises the same potential liability.
Reforms to the statutory damages provisions formed a big part of the government's communication strategy for Bill C-61. Although scooped by the National Post, Industry Minister Jim Prentice emphasized the introduction of amendments to the statutory damages provisions that purportedly create limits for damages that arise from "private purposes" infringement. […]