Some excerpts from a recent Senate committee meeting on Bill C-9, which will, if passed, have a serious impact on the ability of future family historians and others to use "domestic" commissioned photographs such as wedding, school, team, and family photographs, without incurring copyright liability. The full transcript is at: http://www.parl.gc.ca/38/1/parlbus/commbus/senate/Com-e/soci-e/42035- e.htm?Language=E&Parl=38&Ses=1&comm_id=47 After reading the transcript below, you should write to your own local Member of Parliament, first and foremost. Then, write the same to these two Ministers: The Honourable David Emerson Minister of Industry House of Commons Ottawa, ON K1A 0A6 The Honourable Lisa Frulla Minister of Canadian Heritage House of Commons Ottawa, ON K1A 0A6 Remember (as if you need reminding!) no postage required. Mr. Alex Cameron, Associate, Canadian Internet Policy and Public Interest Clinic: Honourable senators, I am a graduate student in law at the University of Ottawa. I am here today on behalf of CIPPIC. My message today is simple but important. Everyday Canadians who commission photographs for personal or domestic purposes should have automatic first right of ownership of copyright in those photographs. That is what our current law says and that should continue. I will discuss four reasons why I say this, make a brief remark about privacy — we will come back to that during discussion — and also one remark about section 10. The first reason for my thesis or my submission is that Bill S-9 as currently written violates the reasonable expectations of everyday consumers. If you ask anyone who has hired a wedding photographer or taken their children for portraits at Sears, they will tell you that they expect that the resulting photographs will belong to them, not to the photographer. These photographs that I am talking about capture our precious moments in life. All of us naturally expect that we have the right to use such photographs and to decide whether and how other people get to use them. If photographers, or anyone else, want permission to use our personal photographs that we pay for, they should have to raise the issue with us and get our agreement. It is a simple proposition. This is the reason why subsection 13(2) is in our act. It has been there since 1924 and has been recognized as a common-sense approach since that time. Nothing has changed over the years that would justify changing this rule. Bill S-9 would do away with the rule and that is why we are opposed to it. Giving photographers automatic first ownership of copyright, as Bill S- 9 would do, makes sense for large commercial commissions, where the photographer would be hired by a magazine or a newspaper to take photographs. We support photographers' rights to have first ownership of copyright in those circumstances. In those circumstances, it is reasonable to expect that the magazine or the newspaper will be sophisticated enough to negotiate the copyright allocation with the photographer. However, the personal or domestic context is very different and requires a different rule. That is why subsection 13(2) is there. The second reason is that Bill S-9 does not reflect the nature of commissioned personal photographs. As I mentioned, our personal photographs are closely associated with our emotions and our dignity. They are priceless and they are cherished. The reality, in those situations, is that the creative impetus and the personal, emotional and economic investment behind a commissioned photograph lies with each of us, the person who commissions the photograph, not with the photographer. Bill S-9 does not reflect that reality. The third reason that we are opposed to Bill S-9 is that it compromises our ability to use the photographs we commission and pay for. If Bill S- 9 passes as currently written, the photographer will automatically control how our personal and domestic photos are used. This means that for up to 120 years or more, the lifetime of the photographer plus 50 years, that photographer and his or her heirs would have the copyright to use our photos, as well as the right to sell or license those same photos to complete strangers without telling us. Subject to what I will say about privacy law later, all of that can happen without our consent or approval. That deals with the photographer's ability to make use of these photographs. Now I will talk about our ability to use them under this proposed law. Last week you heard from the photographers on the issue of what people would be able to do with the photos if this bill were passed. My first comment is in response to questions about the impact of the bill, particularly from Senator Callbeck and Senator Trenholme Counsell. The photographers made it sound like a simple matter for people to go back to them to get their permission. It may be the case that we could find a photographer a week or a month or a year after a photograph was taken. Ask yourselves, what about 10 years or 30 years or 80 years down the road, when copyright is still with the photographers for their lifetime and for 50 years afterwards? There is no cultural or economic purpose served by forcing John Smith, aged 82, to track down copyright ownership and clear copyright rights in a school picture taken of him 75 years ago. There is no rationale behind that kind of rule. The second comment concerns the photographers’ claim that if you were able to find them to get these new permissions, they “would never disagree with your purpose.” As exclusive owners of the copyright, the photographers have complete control over your photos and can ask whatever fee they want. Senator Trenholme Counsell picked up on this and asked “What if that fee suddenly became $2,500?” The response was that the senator could go to another photographer and pay $75 to have the photos redone. That might be simple, but we cannot redo our weddings and the births of our children. Those are examples of where the consumer is forever at the mercy of the photographers if they are holding the copyright. Thirdly, the photographers’ association claimed that they abide by laws and use contracts to obtain permissions under the current law. In the same breath — and it is just a reference to the transcript — they admitted they were getting more and more calls from the public complaining about what photographers are doing with personal photographs. We say if that is the situation now, Bill S-9 will only make things worse by granting automatic copyright to these photographers. I will make two brief comments. The first is about privacy. There has been talk about the applicability of privacy law in this area. I will say one thing about that and then I will answer questions. Let me say that this is not a privacy issue. This is a copyright issue because it is about the control and use of copyrighted works — photographs. Consumer interests should be protected no matter what other laws say. It is about who owns, controls and uses those works. Privacy laws do not cover the issues here because they are not privacy issues, they are copyright issues. Finally, the proposed repeal of section 10 of the act would mean that if you hand your camera to a stranger and ask him or her to take a picture of you and your spouse or your family at Niagara Falls, for example, the stranger would own the copyright, not you. Senator Fairbairn: Even if it were our camera. Mr. Cameron: Yes. The Chairman: Under the bill as proposed, the copyright goes with the photographer not the camera. Senator Morin: We were told the opposite. The Chairman: Let Mr. Cameron finish and we will come back to it. Mr. Cameron: CIPPIC has provided a written brief to the committee as well as an article from Monday's Toronto Star by Professor Michael Geist on this issue. He is one of Canada's leading copyright scholars. I am also happy to provide a copy of my speaking notes for today. In the words of Professor Geist, Bill S-9 in its current form “should be deleted before it develops any further.” He cites a lot of the concerns I am speaking about today. I thank you for listening. Senator Keon: Mr. Cameron, I will start with you, and have the others perhaps contribute, because I think you came directly to the Achilles’ heel of the problem. I understand you are suggesting it is quite appropriate to have protection for pictures in Time and Macleans, et cetera, but totally inappropriate for a photographer to own the copyright for a personal photograph; is that correct? Mr. Cameron: I think I understood, but I could not hear everything you said. Senator Keon: As I understood you, you feel it is quite appropriate for a photographer to own the copyright for commercial enterprise, for magazines and this kind of thing, and it is completely inappropriate for the same photographer to own the copyright to a personal photograph? Mr. Cameron: That is correct. Senator Keon: Let us take it from there. You then suggested we delete this particular bill and start over; is that correct? Mr. Cameron: Bill S-9 in its current form throws the baby out with the bath water. There is a problem in commercial commissioning, where photographers are hired by newspapers. It is not an issue we have studied extensively, but it is really about the inequality of bargaining power. In the case of commercial commissions, the magazines have the power, so the copyright should go with the photographer initially, subject to whatever contract they work out. The magazine may purchase those rights. In the consumer situation, people cannot be expected to be knowledgeable enough about copyright to start raising these issues. We suggest having a default rule in the bill, as subsection 13(2) is in the act, for the personal context so that consumers get copyright. If photographers want to arrange a different allocation of copyright, whereby they receive it, put the onus on them to raise the issue and get the agreement of the consumer to transfer the copyright as the default position. The consumer cannot be expected to raise these things. Senator Keon: Coming back to the bill directly, I believe you recommended that we simply delete it, start over, and develop a new bill for copyright in the field of commercial photography; is that correct? Mr. Cameron: I cannot tell you how to do your jobs, obviously, but our main concern is that the consumer issues we raised be addressed, no matter how the law proceeds from here. The Chairman: Mr. Cameron, as I understand you, having taken that point, you would not have difficulty with protecting the commercial side. Your problem is that in seeking to deal with one issue, they have swept in all kinds of other things. You do not have a difficulty with the position of your two colleagues on the panel; your difficulty is with the way the bill is drafted, in the sense that it is far too broad. Mr. Cameron: It is taking away everything. We say that 13(2) should be retained for the personal situation. Senator Morin: I would like to come back to your example, Mr. Cameron. I have my picture taken for personal use. Then six months later, I decide to run for office and I put that picture on ads and use it commercially, or for any other purpose. This is really not the same context; one is for personal use, for my grandchildren, and the other is for commercial use. The fee is different. Should the photographer not have some right to extra fees if I change the purpose for which that picture was taken? Mr. Cameron: It is a good question. The reality, and the photographers have probably told you this, is that there are standard form contracts in all of these situations anyway; and there likely would be a term in those contracts whereby the photographers would raise at the outset what you can do with the photo. If you intend to use it commercially, then you will probably have to ask them for that right or compensate them in some way. I agree with that. Senator Morin: Forty years later? Mr. Cameron: Yes, if that is what the contract says, you would have to abide by that. Senator Morin: Your example here is of the 82-year-old person trying to find someone 75 years later; that is a similar example if there is a contract. Mr. Cameron: Initially, when it is a personal or domestic situation, you cannot always anticipate what might come. In that context, you still have this inequality of bargaining power, where you have to put the onus on the photographer to raise these issues and to present a contract to the consumer. If you take away 13(2), that default position no longer exists. In fact, the copyright automatically goes to the photographer. There may not be any incentive for them to raise those kinds of issues because they could pursue it down the road. The rationale is to put the onus on the right party in the circumstances to raise these issues and to come to some agreement about them. Senator Morin: Under the present situation, if there is no contract, I, as the owner of the picture, can do whatever I want with it, including making commercial use of it. Mr. Cameron: That is right. Senator Callbeck: I have a question, Mr. Cameron, regarding subsection 10(2) of the Copyright Act. You said that if you give a stranger your camera to take a picture, under this proposed legislation, this stranger would have the ownership of the copyright. Do all of you agree with that interpretation? Mr. Poling: If Bill S-9 goes through as written, yes, that is true. We might provide cameras to photographers, but they are our cameras: “Here is your equipment, go and shoot this event.” Under this proposed legislation, we would not own the copyright; the photographer would. Senator Callbeck: Do you all agree with that? Mr. Gollob: Yes.