Following three previous attempts to amend the Copyright Act, Bill C-11 came into force on November 7, 2012. The legislative changes to Canadian copyright law ushered in by Bill C-11 are far ranging (for a summary of the changes, see: http://bit.ly/SqR97L). What follows is a summary of the most important changes in terms of their potential impact on the advertising and marketing industry.
Ownership of Copyright in Commissioned Photographs
Previously, if a photographer was commissioned to take photographs, the person or entity that commissioned the photographs was the owner of copyright in the photographs. Bill C-11 has changed this arrangement so that now the photographer will own the copyright in the photographs, absent any contractual provision that specifies otherwise. Consequently, contracts for a photographer’s services should be reviewed to ensure they contain provisions indicating both that the photographer assigns copyright ownership in the photographs that will be created and undertakes to execute further agreements to give effect, confirm and evidence such assignment.
New Categories of Fair Dealing: Parody and Satire
Previously, the categories of fair dealing were limited to private study, research, criticism and news reporting. Bill C-11 has expanded the categories of fair dealing to include parody, satire and education. Although education will be of limited application in the advertising and marketing industry, parody and satire can be used in innumerable ways in the course of an advertising campaign. However, dealing with works for the purpose of parody or satire must still be “fair” in all the circumstance. Further, it is important to keep in mind that the categories of fair dealing permit a person to use a work without infringing copyright. Therefore, despite falling within the ambit of a fair dealing category, a person may still infringe the moral rights in a work where the work is distorted, mutilated or otherwise modified to the prejudice of the honour or reputation of the creator (note: this is not an exhaustive list of the ways moral rights may be infringed).
The “Mash-up” Exception
Bill C-11 also creates a new exception whereby individuals will be permitted to use existing copyrighted works in the creation of new user-generated content (UGC). However, one of the main conditions that must be satisfied in order to avail oneself of the exception is that the creation of the new UGC must be done solely for non-commercial purposes. As such, this exception will likely have limited application to the advertising and marketing industry.
Previously, statutory damages ranged from $500 up to a maximum of $20,000 per work infringed, regardless of the commercial versus non-commercial purpose of the infringement. Bill C-11 has modified the amount of statutory damages available to the copyright owner in that the previous range of statutory damages only applies where the infringement was for commercial purposes. Bill C-11 limits the range of statutory damages in cases of infringement for non-commercial purposes to between $100 and $5,000 for all infringements in a single proceeding regardless of the number of different works infringed.