Photo law blurs picture on copyright

David Canton - For the London Free Press - September 24, 2005 Read this on Canoe

One of the effects of Bill C-60, the proposed Canadian copyright reform bill, is to give photographers the ownership of photographs they take -- even if commissioned by a third party.

This means the copyright in the family portrait will belong to the photographer -- not you.

Since the photographer will own the photographs, the photographer is free to do whatever he or she wishes to do with them -- including using them as a sample of his or her work or selling it to third parties for commercial purposes.

The Copyright Act currently says that a person commissioning a photograph owns the copyright in it.

This is an exception to the general rule that an independent contractor creating something for a client owns the copyright in that work -- even if the client contracts with the creator and pays for it.

That right can be changed by agreement. The document you sign when hiring a photographer may indeed give certain rights to the photographer.

The change is intended to bring photographs into line with other creative works and to honour an international treaty.

The practical result is that once it passes, any photograph one hires a photographer to take will belong to the photographer -- even if it is a family portrait or wedding photos.

The bill does provide a licence for the person who commissioned the photograph to use it for his or her own private or noncommercial purposes. That is only a limited right to use it, however, and does not limit the photographer's rights.

Neither does it give the individual any right to make any commercial use of the photographs. It also only applies if there was consideration, that is, if the photographer was paid.

This right to use is given only to the client hiring the photographer. That suggests that perhaps other parties, such as friends and family members who are given copies by the client, don't have any rights to use them for their own private use.

To some extent, privacy rights of individuals would limit the right of photographers to make unfettered use of photographs.

The precise privacy limitations on a photographer's use are not completely clear at this point. Privacy rights also may differ in various provinces.

The good news is these rights can be altered by contract.

When the bill becomes law, anyone hiring a photographer should request that the photographer assign all of his or her rights in the photographs to the person hiring the photographer and that the photographer waives his or her moral rights in the photographs.

That way, the person commissioning the photographs has total control over the photographs and the photographer cannot use them without that person's consent.

Those rights need not be absolute. The agreement can define what each party can and cannot do with the photographs.

It will be interesting to see whether photographers will voluntarily or routinely assign their copyright to the person hiring them -- or whether individuals will need to ask for it.