Canadian legislation puts first copyright back in the hands of photographers


posted Friday, November 9, 2012 at 6:01 PM EDT

Last June, the Canadian government announced the passing of legislation that significantly overhauls the country's copyright laws for the first time in more than a decade. Having received royal assent, many of those changes have now come into effect in the last couple of weeks, and some of them will fundamentally change the way Canadian photographers and their clients do business.

Without doubt, the key change for photographers is that they will now own first copyright to all of their works, regardless of whether they have been commissioned or not. (Previously, first copyright was assigned to the commissioner of the work.) Of course, should photographers and their clients want to transfer the copyright for a given work contractually, they'll still be able to do so.

What the change means is that photographers will be able to decide which rights to their commissioned works they wish to transfer, clients will be able to decide which rights they need to buy, and both sides will be able to negotiate fees based on their combined needs. Previously, photographers had to set their prices on the basis that their clients would retain first copyright, and the photographer would have no further opportunity to profit from the commissioned work. That situation wasn't the most desirable for either party: the photographer was effectively selling rights they may not have wanted to part with, and the client was having to pay for rights they perhaps didn't need.


Industry bodies including the Professional Photographers of Canada and the Canadian Association of Professional Image Creators are, not surprisingly, jubilant. Reacting to the news, CAPIC National Copyright Chair Andre Cornellier commented, "Finally we have won a right due to us as artists. Thank you to Canadian photographers across the country for your support and patience... It has been worth it."

The amended copyright act will also affect Canadians, including photographers, in many other ways. Fair dealing -- the Canadian equivalent of fair use in the United States -- has been expanded to encompass education, parody and satire. Previously only research, private study, news reporting, criticism and review were included. New consumer exceptions have been added to allow things such as making backup copies, time-shift and format-shifting of content, and creation of non-commercial user-generated content that doesn't adversely affect the market for the original material.

Potential penalties for non-commercial copyright infringement have been reduced to a range of C$100 to C$5000 covering all infringements that took place before a given lawsuit. Non-commercial infringements are now seen as distinct from commercial infringements, where the previous per-work penalty of C$500 to C$20,000 will remain.


Controversially, the amendment also makes it illegal to circumvent "digital locks" placed on works by their creators for purposes of access or copy control. This apparently trumps even the fair-dealing and format-shifting rights to content, meaning that if a content provider uses digital rights management to lock down their content, it cannot legally be accessed on a device not approved by the content creator.

There are numerous other changes as well, but these seem to be the key amendments that will affect photographers and videographers. For more detail, we recommend reading the Government of Canada's Questions and Answers page on the Copyright Modernization Act, or if you've got a few hours to spare, the full text of the act itself.

(via Petapixel. Maple leaf w/ copyright symbol image courtesy of the Electronic Frontier Foundation. Flag image courtesy of Brandon Giesbrecht. Padlock image courtesy of Moyan Brenn. All images used under Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) licenses.)