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61 Reforms to C-61, Day 60: Photography Provisions

Friday September 12, 2008

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.

Alex Cameron wrote a detailed analysis of similar provisions in Bill C-60 that highlight potential concerns related to privacy (ie. photographer using a commissioned photo without permission) and striking the right balance.  Cameron recommended the adoption of the Australian approach, which vests copyright for photographs commissioned for private or domestic purposes with the commissioner but grants the photographer the right to restrain uses not contemplated at the time of commissioning:

the [commissioner] is the owner of any copyright subsisting in the work by virtue of this Part, but, if at the time the agreement was made that person made known, expressly or by implication, to the author of the work the purpose for which the work was required, the author is entitled to restrain the doing, otherwise than for that purpose, of any act comprised in the copyright in the work

Addressing photographer concerns is important and some modest reforms to C-61 would ensure that photographers enjoy the rights they need to commercially benefit from their work, while simultaneously providing consumers with appropriate rights and protections.

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