With the coming into force of many of the provisions of the Copyright Modernization Act (Bill C-11) on November 7, 2012, Canadian copyright law boasts a new regime with respect to photographs. In short, subject to the caveats described below, photographs are now to be treated on the same basis as all other "works" (e.g., novels, poems, musical compositions, paintings, etc.) for the purposes of identifying the author and owner of the photograph and for purposes of calculating the duration of copyright protection for the photograph.
The change is relatively dramatic (well, within the context of Canadian copyright law). Prior to the CMA, photographs were subject to unique treatment under the Copyright Act. First, with respect to ownership, old Section 13(2) of the Copyright Act provided that where a photograph had been commissioned, and the commissioner had actually paid for the photograph, then the commissioner of the photograph was the first owner of the photograph. In other words, it wasn't necessarily the subject of the photograph who owned it, nor was it necessarily the photographer who owned the photograph - instead attention had to be paid to who had commissioned (or "ordered") the photograph. That result could be varied by a contractual arrangement.
Second, with respect to authorship, old Section 10 of the Copyright Act provided that the "author" of a photograph was deemed to be the person who owned the "initial negative or other plate" or, where there was no "negative or other plate", the author was the person who was the first owner of the photograph (which might be the commissioner of the photograph).
That unique authorship provision had a knock-on effect which meant that photographs, unlike all other types of works in the Copyright Act, could be "authored" by a corporate entity. That caused a problem: because the duration of copyright for works was calculated as equivalent to the life of the author plus fifty years, how would you calculate the duration where the "author" was an artificial entity like a corporation, and so didn't have a "life span"? The pre-CMA Copyright Act addressed that conundrum by providing that corporate-authored photographs were protected by copyright for a flat term of fifty years from the year of creation.
The Copyright Modernization Act has done away with those provisions. As a result:
- it is no longer possible for a corporation to be the "author" of a photograph - as with all other works, only one or more individual human beings can be the author of a photograph
- it no longer matters whether someone "commissioned" a photograph - when trying to identify the first owner of a photograph, the same steps are taken as with all other works (i.e., the author of the photograph is the first owner, unless the photograph was created as a work made in the course of employment)
- photographs are now protected by the same term of copyright as all other works (i.e., life of the author plus fifty years)
The Copyright Modernization Act also creates a new exception to infringement/user's right, which is applicable only to photographs: new Section 32.2(1)(f) of the Copyright Act provides that it is not an infringement of copyright for an individual to use for private or non-commercial purposes a photograph that they had commissioned for personal purposes (unless the commissioner and the photographer had entered into an agreement which restricted the commissioner's rights to use the photograph). This new provision raises a number of interesting issues (e.g., what constitutes a "personal" purpose? how is it different from "private" and/or "non-commercial" purposes? why does it only apply to photographs made "for valuable consideration", and why does it not apply to photographs which were provided as a gift or for no consideration?), but they will need to be explored in detail later.
For entertainment lawyers, and particularly for lawyers conducting E&O review for film and TV projects (or any other project which requires the reproduction of photographs, such as books), the transitional provisions of the CMA deserve close scrutiny because they significantly affect some photographs and will continue to for a number of years. The transitional provisions of the CMA found in Sections 59 and 60 of the CMA have the following effect:
- the CMA does not "revive" copyright in a photograph in respect of which copyright had expired prior to November 7, 2012
- however, the CMA does extend copyright in some photographs which were still protected by copyright on November 7, 2012: for corporate-authored photographs which were still protected by copyright on November 7, 2012, the term of protection is extended to life of the author plus fifty years (as a technical matter, copyright endures for the remainder of the year in which the author died, plus fifty years - so that the copyright expires on December 31 in the year of expiration, regardless of the actual date on which the author died)
This means that a corporate-authored photograph which was in, say, its 49th or 50th year of protection in 2012 (and so would have passed into the public domain effective, respectively, January 1, 2014 or January 1, 2013) will now be protected by copyright for a potentially much longer period of time.
This means that, when conducting clearance on a photograph created before November 7, 2012 (i.e., when determining whether a license is required for the reproduction or other use of the photograph), it will still be necessary to assess whether the photograph had a human or corporate author, and whether it was still protected by copyright on November 7, 2012.
I've put together this table to try and formalize how the analysis should be conducted for clearance of photographs:
Determining Whether a Photograph Created Before November 7, 2012 is Still Protected by Copyright (post-CMA)
Click here to view the table.
UPDATE (December 10, 2012): As helpfully pointed out by Friend of the Signal Christian Pitchen, the original version of the table above does not take into account the various complications raised by the 1997 amendments to the Copyright Act. In order to address that lacuna, a new line has been added under the "Was the author human?" section, to address photographs created prior to January 1, 1949.