HELP CANADIAN PHOTOGRAPHERS CHANGE THE LAW
In Canada, the Copyright Act discriminates against assignment photographers (photographers who are commissioned to make photographs by a client).
Help your fellow photographers by donating to the CAPIC Copyright Fund
COPYRIGHT - MISSION POSSIBLE!
Since its founding in 1978 CAPIC has worked very hard to ensure that members' copyright in their works is valid and, protected.
Today, 82 years after the Copyright Act was proclaimed in Canada, our photographer members and all other professional and amateur photographers in Canada are still denied automatic ownership of copyright in commissioned works.
Under Section 13(2) of the Act, any person or corporation that hires a photographer (commissions a work) will automatically own the copyright in that work, once the work has been paid for UNLESS there is an agreement to the contrary.
No other creators in Canada are treated with such disdain! Canadian sculptors, playwrights, illustrators, authors, painters and other creators of original works automatically own the copyright in their work, even when the work is commissioned.
In August of 2001, CAPIC and PPOC (Professional Photographers of Canada) formed the Canadian Photographers Coalition to lobby the Government of Canada to have Section 13(2) removed from the Act, thereby leveling the playing field. Lobbying is an activity, approved by Parliament, wherein professional lobbyists, registered with Parliament, act as official agents for various groups on Parliament Hill. Using professional lobbyists is the most effective and cost-efficient way to advance one's cause to government.
Our efforts included introduction of a Private Member's Bill (S-20) in the Senate in 2003 that placed significant pressure on the Government to deal with our issues. Our hard work was rewarded in June of 2005 when Bill C-60 received first reading in the House of Commons. Bill C-60 was an omnibus bill which included the changes that we had fought so hard to achieve. Unfortunately, Bill C-60 died on the Order Paper when Parliament was dissolved on November 29th, 2005.
A SENSE OF URGENCY
It is imperative that photographers be represented at the discussions preceding the Government's writing of the legislation! We must act now!
THE CUPBOARD IS BARE!
CAPIC funds its portion of the CPC lobbying activities by soliciting donations to the CAPIC Legal Fund from members and non-members across the country. The CAPIC members (2) that travel to Ottawa to present your case do so on a volunteer basis, spending many hours away from their businesses for the benefit of their fellow photographers. They are not paid and only receive reimbursement for actual, receipted travel expenses. All of the funds raised since 2001 have been spent directly on copyright reform and now, the cupboard is bare!
HOW CAN YOU HELP?
You can help by making a donation to the CAPIC Copyright Fund today! All donations of $25 and over will receive a receipt from CAPIC acknowledging your donation. Please note that these donations are not considered Charitable Donations under the Income Tax Act. Donations are, however, a valid business expense.
WHAT IS COPYRIGHT?
Copyright literally means having the right to copy, which extends to all types of reproduction, publication, public presentation and other specified uses. Copyright is part of international law that deals with 'intellectual property.' These laws, which vary between countries, also apply to patents, trademarks, industrial design and trade secrets.
In very broad terms, copyright protects the expression of original ideas but not the information itself. This expression is often called 'the work' or, in the case of photos and illustrations, 'the artistic work.' Copyright consists of a 'bundle' of different rights that covers how that work is used. The copyright of a work can be divided into a number of rights, and each right dealt with separately.
Take a simple example of a photograph showing an apple at sunset. Copyright law does not protect the idea behind an illustration or a photograph. The idea of taking a photo of an apple at sunset is not protected by copyright as there are no restrictions on creating such an image. But the expression of a specific image, the way the photograph is made, the positioning, the lighting etc. - is protected through copyright. Even if the photograph includes elements, such as a building or object, that are not yours, the work itself is yours. (Note: in certain cases, you do need permission to include other people and/or their property in your work, see section on model releases).
Copyright is based on a simple principle: whoever creates or owns a work controls how that work is used. To qualify for copyright, a work must be:
* Original - Not a copy of an existing work.
* Fixed - Exist in some identifiable (i.e. physical, visual, electronic) form. Also, the work must be created by a person who is a citizen or resident of Canada, or connected with another country that adheres to the Berne Convention or a similar international copyright treaty, or is first published in such a country. Canadian copyright law applies to works in Canada. If a work created in Canada is used in another country, then that country's copyright law applies.
The Association of Photographers (AOP) in the UK has put together a very informative website about copyright and the value of images at this site:
American Association of Media Photographers
To Find A Photographer/Illustrator in Canada, click here http://www.capic.org/search.html
Frequently Asked Questions
Copyright in Canada is governed by the Copyright Act CHAPTER C-42
An Act respecting copyright R.S., c. C-30, s. 1.
laws.justice.gc.ca - rid-38969
What is copyright?
Copyright is the right that creators of original works have to control the copying or reproduction of their work(s).
the legal right of creative artists or publishers to control the use and reproduction of their original works
How do I mark my work as copyrighted work?
The internationally accepted way of marking a copyrighted work is with the Â© symbol (Option "g" on Mac computers) + the year of creation + your name.
Example: Â© 2005 John Doe
Do Canadian creators own the copyright in their works?
Yes. All Canadian creators of original works automatically own the copyright in their original (personally created) works.
In commissioned (assigned) photographic works, if the creator does not have an agreement to the contrary with the commissioner of the work, the commissioner of the work shall own the copyright in the work, once the work has been paid for.
See laws.justice.gc.ca - rid-38969 Ownership of Copyright, Section 13(2).
As a photographer, how do I ensure that I retain copyright in my assignment work?
To retain copyright in assigned photographic works, you must have an agreement between you and the commissioner of the work (your client) stating "Copyright in this work shall be owned by the photographer." This statement should be in the normal Assignment Terms & Conditions that would accompany your Estimate or Assignment Confirmation.
As an Illustrator or Digital Artist, how do I ensure that I retain copyright in my assignment work?
Under the Copyright Act, Illustrators and Digital Artists automatically own the copyright in commissioned works unless they sell or otherwise transfer the copyrights, by contract, to a third party.
What are my Moral Rights in a copyright work?
All creators of original works own the moral rights in their works. Moral rights include:
- The right to have your name associated with your work (credit line)
- The right to the integrity of your work - no chopping, clipping, excessive cropping or editing or cutting of the work.
Can I sell the Moral Rights in my work?
No, you can't sell those rights. However, you can waive them which means that you won't enforce them.
Some Clients demand that I give them both the Copyright and Moral Rights in my work. What should I do?
As the creator of the work(s), the choice is yours. If you decide that it is in your best interests to sell the copyright in your work(s) and/or waive the Moral Rights, negotiate adequate financial compensation for those rights. A fair minimum price would be 100% of the assignment fee. If you are a Member, call the CAPIC office for guidance.
For more information, please read "What you sell" under Business Practices.
Orphan Works Update
The Orphan Works Debate in the US
TORONTO - June1, 2008 - The controversial United States Orphan Works legislation, originally proposed in 2006, is before the US Congress once again.
For a detailed analysis of the proposed legislation and the effect it has had on US trade organizations and creators' groups, as reported by Photo District News, click here: www.pdnonline.com/pdn/newswire/article_display.jsp?vnu_content_id=1003801084
CAPIC's position is that this legislation is not in the best interest of creators, within the United States and internationally. This position is outlined by CAPIC Copyright Chair Andre Cornellier in a letter sent to CAPIC members earlier today.
Dear CAPIC Members;
The United States Congress is on the verge of voting on a Bill called the "ORPHAN WORKS BILL"™. Lobbyists from the motion picture industry, the internet industry, associations of museums and others are promoting this Bill. This proposed legislation stipulates that any work where the author is not known could be used and commercialized at will if a â€œreasonably diligent searchâ€ has failed to find the author. The scope of this â€œreasonably diligent searchâ€ would be determined by the user/infringer.
This Bill targets all types of work: from professional paintings to family snapshots, artistic work, commercial work, personal and wedding photos, published or non-published, from literary works, to music, to visual arts, to film and works that reside or have ever resided on the internet or have been disseminated by any media. The Bill may be more damaging to the visual arts and music because this kind of work is more frequently disseminated on the web without due credit or, in some instances, with the artists name removed. This will also have an enormous impact on indigenous people's culture since their work is never attributed to any individual.
Consider an example: How would a person from Arkansas or Nigeria know about this law, that it even exists, that it affects him, that he has to register in an American registry for a fee, to protect his wedding picture or pictures of his children from being used by an American corporation or a non-for-profit-organization that may reflect values that are against his religion or his ethics which could add insult to injury? This is the just one instance of the damage the passage of this bill into law could do.
At the same time this Bill will promote the creation of privately held commercial registries. Private corporations will be able to create registries where all authors will have to register all of their work to protect them from becoming orphaned: ie; for a photographer, every click of the camera, for an illustrator, every sketch. Any work not registered could become orphaned and could be used and/or commercialized by any American entity. It will be the private sector that will decide the cost and the means of registering one's work.
Even if this Bill becomes a law in the United-States it will have a very big impact on creators around the world, on creators like you and me. This Bill, when passed into law, will not make any difference between the works created by an American citizen and the works created by anyone else in the world. The implication is that EVERY work from everyone in the world would have to be registered in the USA. (Not a bad way to create an economic boom for American corporations). This will create two different worlds with unfair competition: Only Americans will be able to appropriate most of the world work's, while this practice will stay illegal in the rest of the world. Meanwhile, it may well induce a crash in the price of licensing work everywhere else.
This proposed law violates the international Berne Treaty and the TRIP negotiations (Agreement on Trade Related Aspects of Intellectual Property TRIPs UNESCO.) It may be susceptible to an international lawsuit under international treaties.
Many American creator's associations are against this Bill. They are asking their members to write letters to Congressman and Senators. They are also asking the same from the international community.
When this law is enacted in the US, the same lobbies will ask other governments to do likewise. If we do not voice our concern now it may be difficult to voice it later with credibility when the same law may be presented in one's own country.
We are asking you to take a minute and write a letter and fax it to Washington. Do not think it won't make a difference. It will.
A letter that you could use is available via the link below. Here is the link to the Illustrators' Partnership in the US. We agree with their arguments. www.illustratorspartnership.org/01_topics/article.php?searchterm=00267
This Bill could be voted on in a few weeks. We urge you to act in the next few days.