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[d@DCC] Copyright reform by stealth...

From: Russell McOrmond <russell _-at-_ flora.ca>
To: General Copyright Discussions <discuss (at) digital-copyright.ca>
Date: Thu, 21 Oct 2004 11:03:28 -0400 (EDT)

Thanks to Wallace for this link...

http://www.parl.gc.ca/38/1/parlbus/chambus/senate/deb-e/006db_2004-10-20-E.htm?Language=E&Parl=38&Ses=1#62


"Hon. Joseph A. Day moved the second reading of Bill S-9, to amend the 
Copyright Act. (Honourable Senator Day).

He said: Honourable senators, I will be brief in reintroducing this bill 
since it deals with a very narrow issue. It is an attempt to take out of 
the Copyright Act a fiction that has been carried in it a good number of 
years whereby photographers are not treated as artists."


S-9 	An Act to amend the Copyright Act
http://www.parl.gc.ca/legisinfo/index.asp?Lang=E&Chamber=S&StartList=2&EndList=1000&Session=13&Type=0&Scope=I&query=4224&List=toc


The intent of the bill is to repeal the following from the act:

---cut--

Term of copyright in photographs
	

10. (1) Where the owner referred to in subsection (2) is a corporation, 
the term for which copyright subsists in a photograph shall be the 
remainder of the year of the making of the initial negative or plate from 
which the photograph was derived or, if there is no negative or plate, of 
the initial photograph, plus a period of fifty years.

Where author majority shareholder
	

(1.1) Where the owner is a corporation, the majority of the voting shares 
of which are owned by a natural person who would have qualified as the 
author of the photograph except for subsection (2), the term of copyright 
is the term set out in section 6.

Author of photograph
	

(2) The person who

(a) was the owner of the initial negative or other plate at the time when 
that negative or other plate was made, or

(b) was the owner of the initial photograph at the time when that 
photograph was made, where there was no negative or other plate,

is deemed to be the author of the photograph and, where that owner is a 
body corporate, the body corporate is deemed for the purposes of this Act 
to be ordinarily resident in a treaty country if it has established a 
place of business therein.

R.S., 1985, c. C-42, s. 10; 1993, c. 44, s. 60; 1994, c. 47, s. 69(F); 
1997, c. 24, s. 7.

...
Engraving, photograph or portrait
	

13(2) Where, in the case of an engraving, photograph or portrait, the
plate or other original was ordered by some other person and was made for
valuable consideration, and the consideration was paid, in pursuance of
that order, in the absence of any agreement to the contrary, the person by
whom the plate or other original was ordered shall be the first owner of
the copyright.

---cut--

  Like any other example of using copyright as the blunt instrument it is,
there are many unintended consequences to this that have absolutely
nothing to do with the question of whether a photographer is an artist.

  We need someone to author an article that will discuss the intended
consequence, not disagree with that, but to instead focus on the
unintended consequences and the greater harm that will come from the bill
that are not adequately being considered.

  - Don't talk about photo-artists being "professional" and their subjects
    being "regular citizens", which is not often the case with photography
    where there are far more amateur photographers than professionals.

    Focusing only on professionals and whether they are artists can easily
    backfire, as was the case with me where I sided with the photographers 
    and was turned around only after other more relevant consequences were 
    discussed.

  - Do talk about "Hey, could you take my picture in front of Niagra Falls 
    with my camera", and who should hold the copyright on that picture 
    (obviously it should be the owner of the camera or, as 10(2)  
     suggested, the owner of the film).

  - Do talk about privacy rights, and that these should trump any rights 
    relating to copyright.  Who the owner of copyright is should have no
    bearing at all on whether, for instance, "Boudoir photos"  should be
    published without the clear (written?) permission of the subject.


  Using the CIPPIC submission as an example:
http://www.cippic.ca/en/projects-cases/copyright-law-reform/s132CA_Submission14-04-04.pdf

  I disagreed with summaries in paragraph 5+6, while strongly agreeing
with paragraphs 7+8.  IMHO the inclusion of 5+6 served as a distraction to
both myself and the committee who should have been expected to dismiss
this type of concern.

  I also disagree with the CIPPIC submission as to what the expectations
of consumers are.  I did my own informal polling over the last few months.  
Those who I spoke to expect that when they commission a photograph that the
photographer holds copyright unless there is a legal agreement to the
contrary.  They do not, however, expect that them holding copyright alone 
gives them the right to publish these works outside of making copies 
when the permission from the subject is granted.

  Parliament will have far more than a "copyright" battle on their hands
the first time "Boudoir photos" show up on a portfolio in a photographers
office, public showing or website without the permission of the subject.  
This is the type of issue that should be the focus of very public
(newspapers/etc?) submissions.

-- 
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 Telling my story: The Life of one Hacker
 Early draft, looking for comments and corrections of my memory.
 http://www.flora.ca/russell/drafts/life-of-hacker.html
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