Proceedings of the Standing Senate Committee on
Social Affairs, Science and Technology
Issue 3 - Evidence
OTTAWA, Wednesday, November 3, 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 3:40 p.m. to give consideration to the bill.
Senator Michael Kirby (Chairman) in the Chair.
[English]
The Chairman: We are here to continue our discussion of Bill S-9, an act to amend the Copyright Act. We have with us today a panel representing three groups: Ron Poling is Executive Director of Picture Services for Canadian Press; David Gollob is Vice-President of Public Affairs for the Canadian Newspaper Association; and Philippa Lawson, who is Executive Director, and Alex Cameron, who is an Associate, of the Canadian Internet Policy and Public Interest Clinic.
Our regular procedure is to hear from all witnesses and then we can question the panel collectively, rather than question you after each presentation. We will begin with Mr. Poling, and then Mr. Gollob and Mr. Cameron.
Mr. Ron Poling, Executive Director, Picture Services, Canadian Press: Thank you, Mr. Chairman, for the opportunity to appear before this committee.
The Canadian Press is a non-profit cooperative that began as an act of Parliament in 1917. Its mandate is to create a snapshot every day of every year that records the people and events shaping Canada for use in newspapers and other editorial platforms.
CP uses hundreds of different sources, including our staff photographers, independent photographers that we hire to shoot specific events, and staff and contract photographers of our newspaper cooperative members to cover the day- to-day events.
Since 1996, CP has stored this daily file of pictures and important images from years past in what is now the largest editorial database in the country. Many of the pictures you see in publications, TV documentaries, text books, Web sites and even museums have been sourced from the CP picture archive. It has taken on enormous importance as a Canadian historical resource. The Copyright Act has helped us secure the necessary rights to protect this historical record for future generations.
Before commenting, I am not sure if the clerk handed out this.
The Chairman: Yes.
Mr. Poling: I want to ask you to turn to the sixth photograph of this book. It is not because there is a picture of the chairman there, or the fact that I shot it; it is because I will refer to it as an example throughout my discussion.
Mr. Poling: We have already established that I am a photographer. Although I am head of the CP picture service, and run the CP picture archive, I continue to create opportunities to make photos in my personal time. I expect to benefit from these opportunities and, certainly, I own the pictures.
However, much of my career has been spent covering the Hill for a news service, during which I had an opportunity to shoot many of you, including the chairman. During that time, there is no doubt in my mind that the photographs I made belonged to the news service for which I was working. That includes this photograph, as I was working for a news agency when I shot it.
On that day in 1982, United Press, the company I was working for at the time, had secured a number of positions from Secretary of State that would allow us privileged access to photograph the signing ceremony. They assigned photographers to cover the event from those positions. Some were staff like me; others were contract photographers. When the Charter was signed, we all delivered our film to the editor, who took care of the processing, selection and distribution.
Pictures from that assignment have been used around the world and have appeared in history books, on Web sites and many other places since then. There was never any doubt in the minds of the photographers, both staff and freelance, as to who owned the pictures.
Then, a few pages on in the book, you will see another photograph, of Yousuf Karsh, that I shot. The work that he did as a photographer and on assignments, and the work I did on assignments as a news photographer, was very different. When people went to Mr. Karsh's studio to commission a portrait, they would have no doubt as to who owned the negative. It would clearly be him as an independent artist.
However, we see in subsection 13(2) of the Copyright Act that his customers who order up the original photograph have the copyright in the photograph. That is the problem that we understand you are addressing in Bill S-9.
If we are right in thinking that this is the problem, why are you not just proposing to get rid of this section? If you did, Mr. Karsh, who owns the photograph, would also have copyright because he created it, and the term of the copyright would be his lifetime plus 50 years. Would not that be what you are trying to achieve here?
Instead, you have gone further and recommended the repeal of subsection 10(2) of the act, which deals with who the author of the photograph is. Because that issue is determined by the ownership of the negative or photograph, you have created some unintended consequences for newspapers and news agencies.
Why you went beyond the issue of copyright and got into ownership of the negative is confusing.
Let me give you another example. I have a book here that I own. I bought it; I own it. You cannot have it unless I give it or sell it to you or whatever. If I turn over the page, I see the Butterworth Group is the copyright holder of this book. They cannot have my book, even if they want it back, because I own it. Therefore, there is a difference between ownership and copyright.
Why not solve Mr. Karsh's problem by simply not taking his copyright away from him? You do this by deleting subsection 13(2). He is the creator. Why not leave him with the rights in his creation?
Instead, however, you are going a step further in involving the owner of the photograph or the negative, which in my case, or that of the freelancer on the assignment in May 1982, was never in question. It belonged to the company, and nobody had any issue with that because it was the company that made all the arrangements, assigned us and took care of distributing the pictures.
One of the unintended consequences of removing subsection 10(2) is that you are now getting involved in the relations between photographers in the news business and the people who hire them. In the case of staff photographers, you will be giving them a veto right over the archival use of the photographs as they may be used to show Canadian history.
In other words, under these rules, I would be able to dictate who gets to use the picture that I took of the signing of the Constitution and who does not. I would have a veto right. There is no benefit in that because I do not have the copyright. I cannot earn revenue from it.
Specifically, I am referring here to subsection 13(3) of the Copyright Act, which I would be glad to take you through.
Let me close by saying we support the spirit of this bill and the repeal of subsection 13(2) of the Copyright Act, but we strongly object to the repeal of 10(2). I would be pleased to answer your questions.
The Chairman: I would like you to answer one short question. You can give a yes or no and then we will turn to Mr. Gollob. You agree with keeping 10(1). It is the repeal of 10(2) that is the problem?
Mr. Poling: That is right.
Mr. David Gollob, Vice-President, Public Affairs, Canadian Newspaper Association: Thank you. The Canadian Newspaper Association is an organization representing Canada's daily newspapers, English and French. We have represented the interests of daily newspapers on copyright matters and other policy issues since 1919. Until today, this committee has focused on aspects of Bill S-9 that turn, for the most part, on consumer and privacy concerns regarding these proposed changes to the Copyright Act. Like the witness you have just heard from, I am here today to open a window on another important perspective. Fourteen million Canadians read a newspaper every day. Canadians turn to newspapers to better understand their world and the events that shape their lives. They turn to us for insight that empowers them to participate meaningfully in the democratic process, to learn about new ideas and technologies that can help improve their lives, and to experience and enjoy Canadian culture. Photographs are integral to the experience of the world that newspapers facilitate. Newer technologies such as television and the Internet have not diminished the value of photographs. On the contrary, thanks to cutting-edge technology, with colour and high-definition photographs, our newspapers are visually more vibrant than ever before.
In our view, Parliament must proceed with extreme care in modifying legislation in ways that could affect the ability of Canada's newspapers to tell this country's story as it unfolds day by day, in text and in photographs.
Canada's newspapers acquire news photographs in several different ways. We have staff photographers who are assigned on a daily basis. We acquire photographs from news agencies. We occasionally purchase photographs from freelancers who operate as entrepreneurs. We also acquire photographs from photographers not on staff to whom we offer contracts for specific assignments.
We have never opposed the right to copyright of freelancers who, through their own enterprise, capture a moment in time.
At issue today is whether an independent photographer who is assigned by the newspaper to take photographs on contract should enjoy the same rights.
Let's look at an example of a situation in which a newspaper might need to engage an independent photographer on contract. Typically, this occurs in a fast-breaking news situation, possibly in a remote area of the country — for example, a sudden forest fire or avalanche in British Columbia. In current practice, within seconds of learning about the story, the news desk would phone a photographer based in the vicinity, not having one on staff in that area. The news desk would offer a set fee per day to take photographs exclusively for that paper. It would be understood that copyright in this case would remain with the newspaper. No other negotiation would be necessary.
The urgency of getting to the scene immediately cannot be overstated. To show up late runs the risk of losing the dramatic first few moments of the story, or, in some cases, being prevented by authorities from gaining access to the scene.
Conversations on the phone should take minutes, not hours. It is not a time for negotiations over copyright issues, but that is the type of conversation that Bill S-9 in its current form would impose on both parties. This proposed legislation is clearly not designed to reflect the realities of the news industry. It will hamper newspapers in their important newsgathering activity. That is one objection that we are raising.
I would like to speak to another objection that you have just heard from the witness from Canadian Press.
It is a yet more harmful consequence and one that affects the newspapers' relationships with staff photographers. The photographers who have appeared before you in the preceding session stated that they have no interest in disturbing the employer-employee relationship. However, Bill S-9 will affect the relationship between newspapers and photographers on staff through the removal of subsections 10(2) and 13(2) of the act. Eliminating those means photographers who are on the staff of newspapers will now be captured under subsection 13(3) that Mr. Poling referred to moments ago, which, and I quote, ``reserves to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.''
Subsection 13(3) is a little-known anachronism imported from British law from the beginning of the last century. The story goes that it was introduced at the behest of Winston Churchill to prevent his employer, The Times of London, from republishing his articles on the Boer War in the form of a book. The British have long since done away with this section. It is time Canada did so as well.
Senator Day's bill has the result of granting photographers who are permanent employees of newspapers an additional right that is not copyright, as copyright remains in the hands of the employer. This right of restraint is clearly unfair, in our view. It singles out newspapers, as opposed to other media such as radio and television, for special treatment. It is out of place in the 21st century, in which newspapers must strive to tell Canada's stories wherever readers want to find them, whether in electronic format, on the Internet or on their doorstep every morning. If photographers do not wish to interfere in relationships between employees and employers, let us ensure that Senator Day's bill does not either. This committee can prevent that by amending Bill S-9 to eliminate the right of restraint in subsection 13(3). My association encourages the committee to give consideration to this suggestion.
Once again, I thank the committee for giving me this opportunity to offer our industry's perspectives today.
The Chairman: Thank you. We will have lots of questions for you.
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.
The Chairman: I thank the three of you. I want to make sure that I understood the position. I will begin with Mr. Cameron, who is stating that we should leave the law the way it is.
Mr. Cameron: For the personal or domestic commissioning.
The Chairman: Mr. Gollob, your view was that we should repeal part of 13(3).
Mr. Gollob: Correct.
The Chairman: However, leave other things the way they are.
Mr. Gollob: Yes. However, if there is a consensus in the Senate to move forward with Bill S-9, at the very minimum, you must consider the implications from the perspective of employer-employee relationships of that second part of 13(3).
The Chairman: Mr. Poling, your position was it is okay to repeal 13(2) and 10(1).
Mr. Poling: Yes, as long as subsection 10(2) remains, then it does not move us into the labour relations area of subsection 13(3).
The Chairman: Senator Day, as you know, has not been available previously and he wants to appear as a witness. Second, it seems to me there is nothing in life that is as simple, when you get into it, as it looks on the surface. It is important that we hear from officials in Industry Canada, who are responsible for overseeing the Copyright Act, and so our intention today would be to hear this panel and then meet again following the Senate break to hear both Senator Day and officials, just so you understand the schedule. At that point down the road we will proceed with clause by clause.
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 Maclean's, 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.
Senator Keon: Thank you for what you have said so far. You have defined the problem well.
I would like Mr. Gollob and Mr. Poling to then comment on this critical path that has been defined.
Mr. Poling, what would you suggest that we do with this proposed legislation?
Mr. Poling: If I understand correctly, the objective of the bill is to provide the copyright for commercial or independent photographers. That can be achieved by simply removing subsection 13(2) from the Copyright Act. If you cast a wider net and at the same time remove subsection 10(2) from the act, photographers who are employees working for the Canadian Press or the Vancouver Sun now have a veto under subsection 13(3). They are given a veto power that they have never had and never asked for. I do not believe the original authors of that particular section ever thought of it as applying to photographers, because photography was covered under totally different sections.
Senator Keon: Would your suggestions remove the problems of domestic and personal use raised by Mr. Cameron?
Mr. Poling: No. The domestic and personal problem would continue, in my understanding; you are giving the photographer the copyright by removing subsection 13(2).
Senator Keon: Mr. Gollob, would you please comment on what you think is the best course of action with this proposed legislation?
Mr. Gollob: We have not considered the option that Mr. Poling is advancing. At first glance, it appears to be a worthy idea to conserve subsection 10(2). However, I would not want to comment on it further. Our position is that if section 10 and subsection 13(2) are eliminated, then subsection 13(3) would capture photographers, as no other section in the act defines the treatment of photographers and their issues.
Senator Morin: We do not have the act here and I do not think anyone has received it.
The Chairman: We have 13(2) in front of us, because it is explained on the second page of the bill. However, what does subsection 13(3) do?
Mr. Gollob: I am sorry I have not been able to provide this to you, but I can read it.
The Chairman: Tell us the essence of it. We have the benefit that this is a unique committee. One of our great strengths is that we are not lawyers.
Mr. Gollob: The first part of subsection 13(3) says that if you are an employee, you are working for someone, the copyright on the work that you do goes to the employer. That is fine, but there is a second part that makes a strange stipulation, and it is what we are calling the veto right. It says, and I do have to quote, but only briefly:
...where the work is an article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.
In Great Britain, where this language originated, the British Parliament saw fit to remove it not too many years ago. In a speech in1998, the Under Secretary for Education in the United Kingdom House of Commons described the second half of the subsection that I just read out to you as an anomaly and said that it must be admitted that the anomaly has been around for 70 years or more. He asked why the anomaly should be done away with now, and answered that it is not an innocuous anomaly and that it seems to be wrong in principle to say to newspapers — this is our contention — that: ``You alone of all the many employers of the authors of copyright works are not to receive the full benefit of your investment in your workforce.'' The second point that he made was that there are practical effects that harm newspapers. Different branches of the media are not competing on an equal footing, and that is wrong. We are saying that is discriminatory against newspapers, it is wrong for it to be there and the effect of Bill S-9, as it stands, would be to actually award to staff photographers a veto right that they currently do not have.
Mr. Poling: If I could add, in reading Bill S-9, I did not get the idea that it was the intent to get involved in labour relations. I read the bill as just being concerned with copyright. However, clearly, if you include that, you will get into this situation. That subsection only applies to the news media. It does not apply to a staff photographer working for a commercial studio. There is no right of restraint there. It does not apply to a House of Commons photographer. There is no right of restraint there. It is very specific. Photographers do not have that right now, they never had that right, and they were never intended to have it.
The Chairman: Having talked to Senator Day, I believe your comment on intentions is correct, but intentions do not appear in law; what appears in law is the statement. From a newspaper standpoint, you have raised a legitimate question that we will have to deal with ultimately.
Senator Fairbairn: I am a little behind on this. I apologize; I was not here for the earlier meeting, having done a stint in the hospital.
I am a former journalist, but not a photographer. I would like to ask you whether this proposed legislation was in any way discussed with the newspapers, with the photographers, before it was worked out. I just should just acknowledge Mr. Poling here; he has not been around here for as long as I have, but he has been around a long time, 20 years, and through thick and thin, obviously. Here is this proposed legislation that is fascinating the whole committee because it is new material, and yet it is important for your particular business, whether as a photographer, publisher or whatever. Was there preliminary discussion; was there an effort to try out these ideas on you before this bill popped up?
Mr. Poling: I cannot speak for David Gollob, but I can say from our point of view that no, there was not. We were invited to appear at the Commons committee, but that was two days before the end of hearings, and we were not consulted when the original suggestions for reform were drafted.
Mr. Gollob: Like Mr. Poling and Canadian Press, the Canadian Newspaper Association has not been, to our knowledge, consulted on the content of this bill.
Senator Fairbairn: I am curious here because a bill is a fairly important event, and I am trying to pick up why this is deemed necessary. In your view, what has happened to cause these changes to be deemed necessary enough to make a legislative change in copyright?
Mr. Poling: I would like to answer that because I am in a particularly interesting spot, where I am in charge of a news organization but also of a database of photographs. The driving force behind this is commercial concerns. If you have all of the rights clear, it is a lot easier to deal with photographs in the marketplace. Where there is confusion, it gets difficult; and I think that is a concern for commercial photographers. Similarly for the news media and for historical databases, if there is confusion as to the ownership of copyright, there is a big problem there too, because we are dealing with history.
You can see that the pictures in the book are of key moments in history. I, as the photographer who shot some of these, should not be able to dictate how they are used. It is just not right. We have to differentiate. As a photographer myself, I support the concerns of the independent photographers. In fact, I do still shoot photographs for which I create the opportunity and I use my own resources; I shoot them and I sell them. I clearly own them, and I sell them and reap benefits from them. However, they are photographs I have originated, not that I have done on assignment for my employer.
Mr. Gollob: To reiterate, as newspapers, we do not have any issue with the independent photographers who, on their own initiative and using their own enterprise, create opportunities. In my experience, for example, we used to cover the air shows where, tragically, there are sometimes accidents; but often, nothing happens. If you are an independent photographer, a freelancer attending one of these events, you might spend the day taking a lot of pictures and not get a shot that is worth very much. On the other hand, you could get the shot of a tragic accident. In that event, we would have no quarrel with a photographer maintaining ownership of the copyright of that shot. However, if we hired someone and said, ``Here is $1,000 to cover the air show, we will pay you regardless of whether you take anything that we use or not; here are the tickets to the air show, here is the taxi fare, et cetera,'' that is a different character of assignment. That is the distinction to make.
Mr. Cameron: You asked, where is the problem, what is the urgency here? It is the same question we asked. The rationale for subsection 13(2) protecting these personal commissions has not changed since 1924. The reasons for that being there are exactly the same today as they have always been; nothing has changed to justify taking those away.
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.
The Chairman: By way of summary, the issue on the table is whether there is a way to meet the legitimate copyright concerns of the freelancer who is not the commercial photographer. I am referring to photographers who are not there because they are on somebody's payroll or because they have been assigned to do a particular job and are being paid for it. They are legitimate freelancers. Is there a way to meet their copyright concerns while at the same time not causing any of the relationship problems between photographers who are working for media or on assignment for media and their employers, or problems in what I would call the personal photograph area, in the sense that Mr. Cameron talked about? This bill does that, but also a whole lot more. Is that a fair description of the problem? Would this be a bill you could support provided that it was that tightly constrained? I recognize that you would have to see the legal language, but in principle; am I correct in reading what you are saying?
Mr. Poling: I am a true freelancer who goes out and shoots on my own time, with my own equipment. I create my own opportunities, I fund it; I own it.
The Chairman: That is what I said.
Mr. Poling: Under Bill S-9 I still own it.
The Chairman: You own it without any change to the Copyright Act; is that correct?
Mr. Poling: Without any change whatsoever. I own it outright, clear and free.
The Chairman: The difference, then, in a sense, is that you still own it under Bill S-9, but in cases where someone is working directly for CP or for a newspaper company, there is a problem. Second, it has been written so broadly that it sweeps in consumers, which — trust me — it was not intended to do.
I want to thank all of you for coming. You have crystallized the issue from our point of view.
Parliament does not sit next week. When we are back, we will hear from Senator Day and from government officials who supervise the Copyright Act.
Mr. Poling: If this proposed legislation proceeds and if subsection 13(3) is involved, then you also have to broaden your basis for discussion. In fairness, we have to bring our photographers and their representatives in and you have to get involved in the labour relations part.
The Chairman: That is correct, and that is clearly not our intention.
Thank you very much.
The committee adjourned.