Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 2 - Evidence, October 28, 2004
OTTAWA, Thursday, October 28, 2004
The Standing Senate Committee on Social Affairs, Science and Technology, to which was referred Bill S-9, to amend the Copyright Act, met this day at 11:31 a.m. to give consideration to the bill.
Senator Wilbert J. Keon (Deputy Chair) in the chair.
[English]
The Deputy Chairman: Honourable senators, our witnesses today are from the Canadian Photographers Coalition.
I would ask Mr. Brian Boyle to begin.
Mr. Brian Boyle, Photographer, New Media Resources, Royal Ontario Museum, Canadian Photographers Coalition: Honourable senators, thank you for inviting us to meet with you on Bill S-9. As well as being a photograph, I am co- chair of the Canadian Photographers Coalition, which represents over 14,000 professional photographers involved in all aspects of photography across Canada. With me today is my fellow co-chair, Mr. André Cornellier, who is also a photographer. Our coalition includes members of the Professional Photographers of Canada, PPOC, of which I am a member, and the Canadian Association of Photographers and Illustrators in Communications, which Mr. Cornellier represents.
Photography is a very Canadian art. Our country and its people are an endless source of inspiration for a creator. From the earliest days of photography, Canadian photographs have been recognized for their artistry, and Canadian photographic legends like Notman, Karsh and Malak have become icons to people around the world. In fact, the most famous photographic portrait ever created, Karsh's portrait of Sir Winston Churchill, was taken right across the street in the Centre Block.
Like all creators, photographers depend on copyright laws to ensure the benefits of our creation and to help us protect the integrity of our artistic vision. For that reason, we are pleased that this proposed legislation is being considered by the Senate. If passed, Bill S-9 would correct two injustices in the Copyright Act. First, it would eliminate section 10(2) of the act. This section deems the owner of a negative plate to be the author of a photographic work. Eliminating this section is long overdue and would modernize our laws to make them consistent with current technology, where often a negative does not exist. Second, and more important, Bill S-9 finally eliminates the legal fiction that a person who commissions a photograph is legally assigned first ownership of the copyright absent any agreement to the contrary.
Aside from the obvious insult in this, Canada's copyright laws deny photographers the same rights to their work that are enjoyed by every other creator in the country. Bill S-9 proposes to remove this false distinction by repealing section 13(2) of the Copyright Act. Just as important, it also will put Canadian photographers on a competitive footing with their peers in the rest of the world.
Many countries, including the U.K., France and the United States, also once discriminated between photographers and other creators. This attitude was left over from the old arrogance that photography somehow was not artistic. However, no one believes that any more. All the major industrialized countries have changed their copyright laws to give photographers the same right as other creators — all the other major industrialized countries that is, except Canada.
This is not just a matter of professional pride. Canada's outdated laws cost Canadian photographers millions of dollars in lost revenues. In the U.S., stock photography sales generate over U.S. $3.7 billion each year. Sales at the largest U.S. stock agency alone are worth $700 million a year. Because Canadian photographers are not always the first owners of copyright, we are unable to fully participate in the stock photography market. The first condition for photographers to participate in stock photography is to own the copyright. Because the Canadian law has two different types of copyright ownership, stock agencies are reluctant to accept works from Canadian photographs. Canada has one tenth the number of photographers of the U.S., but our largest image bank takes in only about $21 million per year, only a fraction of what it should.
On an individual level, based again on the American experience, we believe that many Canadian photographers are losing between $50,000 and $100,000 in income each year. Removing section 13(2) from the legislation will have an immediate effect on our industry and will help us promote Canadian photography to the rest of the world.
Mr. André Cornellier, Photographer and Copyright Vice-President, Canadian Photographers Coalition: Honourable senators, this is the first time that we have appeared before the Senate to raise these issues, but we have been talking about them to individual senators and discussing them in the other place for years.
Every time we appear, someone always says that they have heard that giving the copyright for commissioned work to the photographer might endanger the rights of the individual in commissioned domestic photographs to protect and control the use of their likeness. This is the excuse Industry Canada has used for years to postpone having to do anything. This concern is not valid.
People in commissioned photographs already enjoy many layers of much more effective privacy protection from other sources. These safeguards go far beyond anything that might be implied in the Copyright Act.
To begin, the privacy rights of individuals captured in photography have clearly and strongly been protected by the Supreme Court of Canada in Aubrey v. Editions Vice-Versa inc. in 1998. In this decision, the court held that the right to control the publication of a person's image was a fundamental component of a right to privacy.
This right, to control the publication of a person's own image, exists no matter what it says in section 13(2) of the Copyright Act. The Privacy Acts in Quebec, Manitoba, Saskatchewan, British Columbia and Newfoundland also expressly protect the rights of a person depicted in a commissioned photograph from having their likeness used without permission.
In addition, Canadian tort laws such as appropriation of personality, defamation, and duty of confidentiality add an extra layer of protection for persons depicted in a commissioned photograph from unwanted commercial uses of their likeness — all of this, in addition to the common industry standard, which dictates that a signed model release should be obtained whenever a person can be identified in a photograph.
Beyond the fact that photographs already enjoy privacy protection, several federal studies have clearly said that the Copyright Act is not an appropriate vehicle to protect privacy rights. For example, the 1984 Gutenberg and Telidon white paper said that legislation pertaining to copyright was not intended to protect privacy. It told the government to repeal the section on commissioned works and to specify that the author of the work is the copyright owner. The 1985 report, ``A Charter of Rights for Creators,'' prepared by the Subcommittee on the Revision of Copyright of the House of Commons Standing Committee on Communications and Culture said the same thing.
As you can see, Canada already has a well-developed comprehensive system of rights laws that fully protect Canadians from the inappropriate or unauthorized commercial use of their image. Virtually everywhere else, in the U.S. and Europe, photographers hold the copyright to their commissioned photographs and the privacy rights of the people depicted in those photographs are still protected. These rights are protected through privacy laws, not through copyright laws, which is the way it should be.
Our point is that privacy is already fully protected. We have commissioned a legal opinion from the noted law firm of Gowlings that confirms this point that we would be happy to share with the committee. We have put it in front of you.
Further, if others believe that privacy rights are not fully protected, then the proper place to address this concern is in the federal act dealing with privacy, the Personal Information Protection and Electronic Documents Act, or PIPEDA. Trying to deal with privacy rights in the Copyright Act will lead to inconsistencies and conflict with established laws.
In addition to the issue of privacy, some stakeholders, primarily the lobby group Canadian Internet Policy and Public Interest Clinic, CIPPIC, have suggested that Canada should not implement the approach that the United States and Europe are taking toward commissioned photographs but, instead, follow the unique approach taken by Australia and New Zealand.
It is important to note that in New Zealand the law specifies that the copyright of all works commissioned for private or domestic purposes is awarded to the commissioner instead of the author. This includes literary works, musical works, computer programs and paintings, so that photographers are treated equally to other creators.
Even though CIPPIC says that this proposal should be used for all commissioned works, in reality, by presenting it here during discussions on a private member's bill dealing only with photography, it would only be applied to commissioned photographs. Given that this policy preference is not the approach taken in Canada generally, we strongly disagree with it being implemented only for photographs.
The purpose of the Copyright Act is to balance the rights of creators and users. If copyright is awarded to the commissioner, then the photographer has no rights to restrain the use of his or her creation. For example, if a commissioner indicated to a photographer that they only wished to order and pay for one four-by-five photograph and then copy the photo 100 times to avoid paying the photographer, the photographer would be unable to prohibit this.
When a photographer is given copyright, he or she can sit down with the client and discuss the various uses they intend to make of the photograph and negotiate an appropriate fee based on the uses contemplated. In this way, balance is achieved. The photographer has the right to control the use of his creation and the consumer can negotiate with the photographer to ensure availability for all the uses that they are contemplating. When the copyright is awarded to the commissioner, there is no balance; there is no recognition of the photographer's right to control the use of their creation.
Awarding copyright to the commissioner will create more difficulties.
In many cases, the commissioner of a photograph is not the person whose image is contained in the photograph. The best example is school photographs. In this case, the commissioner is the school, not the parents of the child contained in the photo. If we are to implement the Australian law in Canada, it would be more difficult, not less, for parents to post the photograph of their children on their personal Web site. This is because parents would have to negotiate with the photographer to obtain a copy of the creation and then negotiate with the owner of the copyright, the school, to get permission. If the copyright is awarded to the photographer, they would only have to negotiate with the photographer.
The same problem would apply to photographs of sports teams, golf tournaments and any other group photography.
Photographers agree that privacy is extremely important, and we take it seriously. Removing one exception and replacing it with another is not the solution. It will not help or protect Canadian photographers in the world market and it will not protect people's right to control the use of their own image. In short, awarding copyright to the commissioner will not solve the concerns that people like CIPPIC are raising, but will actually make the problem worse.
Every other country, including the United States and Europe, has chosen to protect privacy the same way being proposed in Bill S-9. This is the same approach Canadians should adopt in modernizing our own Copyright Act. If we as Canadians are really concerned about doing everything possible to protect personal privacy, then we should change the federal law dealing with the privacy of PIPEDA. That is the appropriate place to protect privacy, and Canada's photographers would support such an initiative 100 per cent.
[Translation]
In conclusion, I would like to thank Senator Day from sponsoring this bill, thereby allowing us to solve the problems that we photographers have had with the current Copyright Act.
If passed, this bill will put photographers and other creators in Canada on an equal footing. It will allow us to be competitive with other photographers in the global market place for archive photography, without eliminating, restricting or diminishing in any way whatsoever Canadians' ability to control and protect the use of their own images.
Thank you for hearing us today and we would be please to answer any question you may have.
[English]
The Deputy Chairman: Thank you very much.
Mr. Cornellier, you referred to the system in Australia as being ideal, I believe. Is that correct?
Mr. Cornellier: Not at all. CIPPIC is citing that example. We are proposing to use the approach that the U.S. and 80 other countries around the world have taken, which is a very different approach. Australia and New Zealand are the exception and, we would not want that to be implemented in Canada.
The Deputy Chairman: Thank you very much for clarifying that. I misunderstood you when you referred to Australia. I am glad you clarified that.
At the beginning of your presentation, you addressed the concerns of most people about how they can protect against the dissemination of wedding photographs or other photographs of multiple people. You addressed that well, but I am not sure you have alleviated the concerns of some of the critics of that.
You spoke about school photographs and said that if this were simply between the photographer and the parent it would simplify the matter. However, I am not sure that this committee is assured that the protection necessary would be there in the contract between you and the parents.
Would you have multiple contracts with the parents in situations like that?
Mr. Cornellier: The protection that anyone has when they appear in a photograph is not in the contract but in the law. The privacy law of the provinces and of PIPEDA — and the Supreme Court of Canada has ruled on this — say that privacy law comes before copyright law. In any creation, the owner of the copyright is the creator. If it is a painting, the painter has copyright.
In photography, there are not only one but two rights. There is copyright, which means the photographer has the right to create the image, but whatever is contained in the photograph is a different right.
Let us say I photograph a bottle of Coca-Cola. There is a trademark there and I cannot use that photograph without asking permission of the owner. If I photograph an object that has a patent, it is protected by patent law and I must ask permission of the owner of the patent to reproduce that photograph. If there is a person in the photograph, I have to ask for the person's permission in writing, because privacy law protects that person. Everything that is in the photograph is protected, but the photograph is not.
Senator Hubley: This is a very interesting subject; I hope it will be resolved in the photographers' interests.
I want to clarify a portion of the notes, and I hope I am not taking this out of context. It says that the Copyright Acts makes several exceptions to this general principle — and that was that the photographs are the subject of copyright authorship — and that ownership does not necessarily rest with the person who took the photograph. It goes on to state that including an exception which applies to photographs, section 10(2) deems the author of a photograph to be the person who owns the initial negative or, if there is no negative, the owner of the initial photograph. If the photographer takes a picture on a camera and film supplied by someone else, the photographer has no right in the photograph.
He has no right to the photograph; is that correct?
Mr. Cornellier: Yes, there is 10(2) and 13(2). Section 10(2) says something that could be contradicted by 13(2).
What it is says, basically, is that the person who pays for the film is the copyright owner. Let us say I take your camera, you pay for the film and I take a photograph with it. I would not own the copyright, you would.
If I have a client and the client pays for the film and I take a photograph with my camera, using my equipment, on my own time, then he owns the copyright.
Senator Hubley: I have some difficulty with that. I think the artistic integrity lies with the photographer. Therefore, he should be the owner of the copyright, the author. That can never be changed. In other words, if I have a small camera and you take a picture, then, immediately, the artistic integrity lies with you and not with me.
If I took the picture, it would not be the same because I would not have the same ability. It is the ability and the artistic integrity of photographers that we have to protect.
I want it to be clear. Your presentation was interesting. Perhaps as I listen further I may become easier with that point. When I first read it, I thought I could not agree with it.
Mr. Cornellier: I cannot agree with you more, which is why we have asked the Senate in Bill S-9 to remove that exception in the law.
Senator Callbeck: I want to get something clear in my head. It pertains to the bottom of page 4, where you talk about the photographer having the copyright. Let us say that I have you take my picture, after which we sit down to negotiate a fee for purposes that I think I will use the picture. What if you do not agree with some of the purposes I want to use it for?
Mr. Cornellier: I would never disagree with your purpose.
At that point, I am in a selling position. The more I sell, the better I am. I could disagree in some instances.
Let us say that you wanted to use that picture for a brochure for the Ku Klux Klan, and I am very against the Ku Klux Klan. In the first place, I may refuse to take the picture. I may not want to see my work in those conditions. The same thing applies to you. If I take a picture of you, you may not want me to use it for the Ku Klux Klan. You may also want to be able to give permission which is what the privacy law gives you.
Senator Callbeck: It has to be agreed to by both parties as to what that picture will be used for.
Let us say that in a year's time I decide to use the picture for something else. Would I have to go back to you to negotiate a fee?
Mr. Boyle: That is right. You would normally come back to the photographer and say: ``I had a contract with you and it gives me permission to use this picture for all of these purposes. I now have a new position and I would like to use this picture for something else. Can I obtain another copy and can we make another agreement?'' That is when we would sit down to negotiate a second agreement that would cover the new usage.
Senator Callbeck: We are talking about fees. What type of money are we talking about?
Mr. Cornellier: This is where it could get confusing, but for us it is very simple. If you want a second copy to send to your son who now lives in Africa, it would be the cost of the print. If the print is $5, we would sell it for $5. There is no question about that.
It is different when it comes to commercial possibilities. For example, a young female photographer in Montreal was asked by a gentleman to do his portrait. He said it was for his own use, that he would give it to his wife to put in their use. The photographer agreed to a very low fee because there was no usage per se. She took the photograph and charged him $75 for an 8x10 print. About three months later, this gentleman retained a new job and his new company asked him if he had a photograph that they could publish. Suddenly, the photograph became public. It was published in the newspaper and used all over the place by this company. That became a commercial use. That is a case where we think the gentleman should have asked permission and the company should have paid a fee for the use of that photograph.
After all, that is how we make a living. When we take the photograph, we try to keep the fee very low. If somebody wants a passport photo, I cannot sell it for $3,000. I will sell it for $20, with an understanding that it is just for your passport.
Let us say that, after the photograph is taken, you want to publish a book or you are asked to represent a company that wishes to use your photo on billboards. We then say, ``We should have a discussion and have part of that.''
Mr. Boyle: Something along the same lines is when a couple hires a photographer to do their wedding photographs. They will often have an announcement in the newspaper, along with an engagement photo or a wedding photo. In some small towns in Ontario, we have been telling newspapers, ``Fine, go ahead and use the photo; all we are asking is that you put our credit line underneath that image because we are not charging the client extra for this extra usage.'' That extra usage becomes advertising for us. When somebody else sees that photo in the newspaper they will say, ``I really like that image; I would like to know who did that.''
Senator Callbeck: You say this is a commercial fee. If you pay a commercial fee, does that allow you to put the picture in Maclean's or The Toronto Star?
Mr. Cornellier: I took photographs of many M.P.s during the last election campaign. They came to me saying that they needed to use the photograph in their campaign and that they may use it during their four-year term, if they are elected. We negotiated a price. I then said to them, ``You can use it for whatever you want. You can distribute it to magazines, newspapers or brochures. You can use it in posters for your election campaign and for the next four years, as long as it is while you are an M.P.'' I also said, ``In the event that you are not an M.P. in eight years and want to write a book or work with a company, if you want to use that photograph for a commercial use, then you have to come back to me.''
Senator Callbeck: How much was your fee?
Mr. Cornellier: It was $400. That included the taking of the photograph and the prints.
The fees are not fixed. A student would charge less than somebody who has 30 years of experience.
[Translation]
Senator Pépin: Whenever someone wants to have a photograph taken and then use it, do they need your permission? I'm not talking about a public figure.
Mr. Cornellier: It doesn't actually happen that way. As a business person, it's not in my interest to have 150 people calling me every day to request my permission to reproduce a photograph in order to send it to their son or post on their web site. Whenever a photograph is take, a package deal is provided which includes the prints that the client needs, a compact disk — which allows the client to post photos on the website — and permission to use those photos for personal purposes without having to request permission.
Senator Pépin: So a class photograph could be posted on a website? For example, could I post a photograph of my young daughter on a website after signing an agreement with you?
Mr. Cornellier: Of course.
Senator Pépin: In that case as soon as I have a photograph taken, for example, of my house, you possess all rights over that photo, because I have to sign an agreement with you in order to use it?
Mr. Cornellier: That's a more or less accurate example. As the person who has taken the photo, I have certain rights; as the person owning the house, you have certain rights. We therefore both have rights.
If I would like to use that photograph for the purposes of publicity or include it in my portfolio, then I must obtain your authorization.
Senator Pépin: Therefore there are two owners?
Mr. Cornellier: Yes, each person owns an aspect of that photograph. I am the owner of its appearance and you are the owner of its content.
Senator Pépin: So it's a good idea to get along with one's photographer.
Mr. Cornellier: It's always easy for the photographer to get along with his clients, because if he doesn't, he will loose those clients and will have no work.
Senator Pépin: You mentioned that there is some protection in Quebec, Manitoba, Saskatchewan, British Columbia and Newfoundland. What about the other provinces?
Mr. Cornellier: There is tort law. Privacy legislation as such is not as developed in the other provinces. However, some cases have come before the courts and those courts have always ruled in favour of the individual and not the photographer. The Supreme Court also ruled in favour of the content of the photograph and not in favour of the photographer.
The fact that these courts have all ruled similarly gives privacy precedence over copyright.
Senator Pépin: Suppose we are mounting a retrospective exhibition of a city or a family and we need to use documents and photographs going back to 1920 or 1930. Under the current legislation in Quebec or Manitoba, what would be involved? The photographers may be dead. In that case, do we need to obtain permission from the photographer or from the family?
Mr. Cornellier: Let's say that a family had photos taken by Mr. Karsh when he was young. The rights associated with those photos expired 50 years later. The photos have now become public. As a result, it is no longer necessary to obtain the rights, because the photos were taken more than 50 years ago.
If the photos had been taken within the past 50 years, Mr. Karsh's copyright would be protected. However, Mr. Karsh could not use these photos without permission.
[English]
Mr. Boyle: If I could interject, there is another part to this as well, and that is the difference between copyright and privacy rights. The copyright on the image at that time ended 50 years after the photograph was taken. However, the privacy rights would depend on the privacy rights that were, I would expect, currently in effect. So, you would have to take a look at PIPEDA to see what it would have to say about actually using that photograph if it has images of people in it.
That is where copyright and privacy start to intertwine, but we try to keep them separate because of the separate laws.
[Translation]
Mr. Cornellier: The Copyright Act is always based on a balance between the rights of the creator and the rights of the person involved. If you give all the rights to the person who commissions the work, this balance will not exist, and the photographer will have no rights. The photographer must hold the rights to his creation and the person must be protected by the Privacy Act. We agree on that.
I do not want my portrait to be used without my permission. So I share your position on that. Nevertheless, the act precludes such use. Moreover, we are very happy that this act exists, and we are not challenging it. We would however like to see a balance.
Senator Pépin: Many people now have websites where they post photos. This is not only public, but also the family domain.
When a person posts a photo on a website, is he required to ask the photographer for permission to do so?
Mr. Cornellier: When I took the photo, I gave you that permission. It is not in my interest to give you permission that is so limited that every two days you have to ask me for permission to send it by e-mail to your cousin in Hungary, for example.
Senator Pépin: So the initial agreement covers several possibilities.
Mr. Cornellier: Unless there is a specific request, I grant a host of rights, and not a specific right. A person may indicate that the photo will only be used for a specific purpose, and that she wants to pay fees that are much lower as a result. In a case like that, I do not see a problem. However, generally speaking, I ask for $75, and the person can do what he or she wants with the photo.
Senator Pépin: So an agreement will always be necessary when someone wants to have pictures taken?
Mr. Cornellier: An agreement already exists in all cases.
[English]
Mr. Boyle: The other thing that comes into consideration when we are talking images for the Internet is when a client says, ``I want this to hang on my wall, and I want it for the newspaper and for my website.'' When we provide an image for a website, we provide an image that is very small, just because of the technology. The image cannot be reproduced to look good as an 8x10 print or a 5x7 print. It looks good on the screen, but that is the only place it looks good.
A lot of times, in images for families and portraits and weddings, we will provide the small image just as an extra.
Senator Cochrane: Thank you for attending here, gentlemen. Could you tell me what provincial and federal privacy laws currently exist that would stop a photographer from selling commissioned photographs to an advertising firm?
Mr. Cornellier: All the privacy laws in the provinces of Quebec, British Columbia and Manitoba, and all those privacy laws do that specifically. There is no way, as a photographer, I can resell that photograph to an advertiser, to any advertiser of any kind, without specific permission in writing of the person.
We also have a paper sent by Gowlings in Ottawa that made a study of all those laws in Canada, which says that everybody is very well protected in that instance.
Second, in practice, I would not see a company like, say, Coca-Cola come to me and ask, ``Would you sell me this photograph?'' without asking who is in the photograph and if I have permission to sell it. They do not want to find themselves in the position of being sued because they did not have permission to use the photo. Their lawyer will say to us, we have to respond to the privacy law and you need to give us the permission, on paper. If you do not have written permission, we will not buy the photo.
Mr. Boyle: There are a number of examples in Canadian law — the Aubry decision that is mentioned in our report, Myriam Bédard, Salé and Pelletier. These are all famous Canadian people whose images were used in a commercial way without their permission. There are cases that do exist and the photographers were defeated in these cases.
One of the things we do with our associations and with photographers across the country is to try and educate them as to what they can and cannot do. More and more we are getting calls from clients. They know that we are not pulling any punches with the photographers. We are saying, ``You cannot do this.'' The clients are calling us and saying, ``Well, so-and-so said that he could do this.'' We get in the middle of things. We will tell them, ``Unless we can figure this out between us, where everybody will end up happy, you are at a point where you need to contact a lawyer.''
We understand privacy laws enough to know that we do not want to get in trouble with them. This is the way that we are educating photographers across the country, through school classes and magazine articles, any way that we possibly can.
Senator Cochrane: Mr. Boyle and Mr. Cornellier, I know that you are from a professional organization, and I respect your professionalism. I still have worries about something happening in regard to a photograph. Let us say that a photograph that has been taken is used by a photographer for purposes that are embarrassing to the individual who was photographed. By the time that picture is taken and is used in those embarrassing situations, the damage is done.
Mr. Boyle: The damage is done, but that is where it is time to get the courts involved. PIPEDA and provincial privacy legislation legislate the rules, and if they are exceeded a photographer will be sued.
Mr. Cornellier: I agree with you, senator, that this is a terrible thing to happen and that the damage would be done. However, no matter what we say and do, even if we put in the copyright law an exception saying not to do it, that person will still do it, because he is already violating a law: the privacy law. By adding another law to the copyright law, the person will violate that law anyway.
When you put a law in place, even if you try to remove all the possibilities, you cannot remove them all.
Because of that concern, adding on to the copyright law will make it more difficult for everybody else acting in good faith to get their picture.
Senator Cochrane: I take your point very well. I understand it.
I worry about children's photographs and embarrassing photographs that are taken. We do have people out there who would do that.
Mr. Boyle: The Copyright Act is simply dealing with commissioned photographs. It does not cover a photographer who is doing some street photography and catches something that is embarrassing and publishes it.
Senator Cochrane: Are there people or groups that you know of who are against this bill? Is everybody in support of this bill?
Mr. Cornellier: One group is against this bill. It is CPAIC. We have discussed them in this paper. These people are voicing a concern like yours. They seem to say that if we change the copyright law, we would be able to use a photograph without permission. This is a very wrong assumption.
No matter what they say, if we have our copyright, it gives us the right to say that this is our photograph, but it does not give us the right to use it because the privacy law is still there and still applies, no matter what. This group seems to say that.
Their other claim is that this should apply to every creator, not only photographers. It should apply to musicians and writers. We are saying that, if this is true, then they should ask to put it in PIPEDA, not in the Copyright Act.
Senator Trenholme Counsell: Let me use an example closest to my life experience at this moment. As senators, our photograph is taken, we have copies of this photograph in our office, and this group and that group ask for a copy. These groups use our photographs for a variety of reasons, for insertion into a program, for a school, et cetera. If this bill became law, would senators have to get permission each time we handed out our photograph?
Mr. Boyle: No. Typically, when you come to the photographer, an agreement or contract would be set up right at the beginning. You would say, ``I would like to use this photograph for all of these different uses.''
Senator Trenholme Counsell: What about unexpected uses that come up?
Mr. Cornellier: That is not really the way it works. As I said earlier, when a M.P. or senator comes to me asks me to take their photograph, when I give permission to the individual, I say, ``While you are an M.P. or a senator, you can use the photograph for any function you have, without asking my permission.''
Senator Trenholme Counsell: You just said, ``While you are an M.P. or a senator.'' Is that only while one is an M.P. or a senator?
Mr. Cornellier: That was the agreement that we had together. The gentleman wanted to ask for a specific right. If he asked for more, then I would give him more. However, he asked for less so I gave him less; it is whatever his needs are. Let us say in four years you are not an M.P. or a senator, that you are a writer and want to use the photograph I took for the cover of the book and you want to sell that book. Suddenly, you are reselling my photograph. That is a different case. In the other case, you are not selling the photograph. You are using it for your promotion in a function that your job brings you. For that use, you do not have to ask my permission. I give you permission for all of these, no matter what they are.
Senator Trenholme Counsell: Let us say, as an example, you were talking about a book. I can see that the situation is different for a cover of the book, which is very specific and prominent. Let us say someone is writing a book about women in the Senate and they want to include pictures of certain or all women senators in the book. Would they have to get your permission?
Mr. Cornellier: I have had this request many times. I have had calls from individuals whose photograph I took telling me that someone who wishes to publish a book wants to use their photograph in the book. My reply to those people is, ``I have no problem with that; tell the person who is publishing the book to contact me.'' The publisher contacted me and gave me $25 for permission to publish in his book. He is the publisher. He is the one who should pay. He is one who is using it and he is the one who pays the fee.
Senator Trenholme Counsell: What if that fee suddenly became $2,500?
Mr. Cornellier: The publisher would then have the photograph redone, for $75, and publish it for $75. There is no way I would get that money.
Senator Trenholme Counsell: With regard to school photographs, when a child's picture is taken, every parent would sign something and would get an agreement of understanding. It is the parent who would sign, because it is not the school that would arrange for the picture; it is each parent.
Mr. Cornellier: If there are 700 students in that school, we probably could not sign 700 contracts. The law would say that we own the copyright on these photographs; that is all. We would go in and photograph these children and then if we want to use the photograph we would have to ask permission of the parents because of privacy laws. If the parents want to use it, they will not ask the school. They would have to come to us and buy a print. For $3 or $5, they would be able to use the photograph.
Senator Trenholme Counsell: It is now possible to copies of photographs and put them on the Internet. They would not be able to do that?
Mr. Cornellier: It is illegal when you do that now.
Senator Trenholme Counsell: You quite often read biographies that contain class pictures that may have been taken 40 or 50 years ago. Such a class picture might not be included because the photographer cannot be traced.
Mr. Boyle: It is difficult. People are constantly phoning us to say that they are trying to locate a certain photographer. Typically, after 40 or 50 years, the photographer is not even in business. Many photographers have passed on their stock to another photographer. Many photographers get rid of their negatives or images after five or ten years.
We try to find the photographer. If we cannot find the photographer, we talk to the person who wants to use the image and tell them that we cannot find the photographer, although we have searched between CAPIC and PPOC. We can generally find most photographers that have been in business in the country in the last 50 or 60 years. If we are unable to find a certain photographer, we suggest to the client that they go ahead and use the image but to make a note in the publication that the photographer is unknown or is known but cannot be found.
When we are able to find a photographer or he does show up or someone recognizes the photograph knows the photographer, then the individual will have to negotiate a fee with the photographer for the uses that you have made of the image.
Mr. Cornellier: Basically, we are advising to use the image. The Copyright Board will give you permission and advise you to put aside $25 to show good faith. Then, if the photographer shows up in five years and wants to be paid, you can pay him. In the meantime, go ahead and use the image. That is how we work in those cases.
Mr. Boyle: We will not try to stop people from using the pictures because we know the importance of photos as an archive. We would love to see them used. We will do anything we possibly can do to help that happen.
Mr. Cornellier: Fifty years after a photo was taken, it becomes public and anyone can use it without permission.
Senator Trenholme Counsell: In respect of studio photography, does the studio own the copyright of the photographs or does the photographer own the copyright? Is there a difference?
Mr. Boyle: Yes, there is a difference. Typically, the studio would own the copyright.
Mr. Cornellier: We are not asking to change that part of the law. The copyright law states that, if a photographer is an employee of a corporation, of a newspaper, of a magazine, of Bell Canada, of an individual or of a photographic studio, he or she does not own the copyright; the copyright is owned by the employer.
Mr. Boyle: That is my position. I am an employee for the Royal Ontario Museum. We are not trying to get copyright on the images that I shoot for the ROM in my name. We are not trying to change that at all. The ROM will always own copyright on what I shoot for them. It is the same for the National Gallery and the CMC. A museum will always own copyright on photographs taken by their employees.
[Translation]
Senator Morin: I would like to congratulate and thank Mr. Cornellier and Mr. Boyle. They have been excellent witnesses.
[English]
The Deputy Chairman: I believe there are no further questions. Thank you, gentlemen.
[Translation]
Mr. Cornellier: Thank you all for your generous invitation and for having welcomed us today.
Senator Morin: Where do you currently live, Mr. Cornellier?
Mr. Cornellier: In Montreal.
Senator Morin: A little bit of publicity does not hurt!
Mr. Cornellier: It is always welcome. I am not far from downtown, near the Atwater Market.
[English]
The Deputy Chairman: Senators, we will continue our deliberations on Bill S-9 next week.
The committee adjourned.