Copyright Modernization Act repeals s. 10 of the Copyright Act.

This was the section that provided special treatment to photographs and their authors.

It used to be the rule that the owner of the initial negative, plate or photograph at the time they were made was deemed the author of the photograph, which included the possibility that a corporation could be recognized as the author of the photograph.

With repeal of this section, there will be no special rules as to who will be recognized as the author of a photograph, so the usual rules will apply. This means that it is the person whose creative effort resulted in the creation of the work that will be recognized as the photograph’s author, regardless of the ownership in the photograph itself.

It will be curious to see how this repeal will work in conjunction with the newly added s. 3(1)(j) of the Copyright Act, which sets forth that copyright, among other things, includes the right to transfer ownership in the tangible object, if copyright is in the form such object.

Here’s a hypothetical situation that happens all the time. What if I ask someone to take a picture of me with my ipad. The person then carefully chooses the angle to ensure that the light is not interfering with the composition of the photograph, tells me to say ‘cheese’ and takes the photograph. The person who took the photo has just become an author. Moreover, the photo is a work that is in the form of a file that exists on my ipad, and is, in fact, a constituent part of my ipad. Can the person now sell my ipad based on s. 3(1)(j)?

This, of course, is me attacking s. 3(1)(j) again. As for the issue of authorship in photographs, this move is in compliance with the world practice and makes perfect sense. As long as the photograph is an “original artistic work”, it is protected by copyright and there is no reason to grant authorship in that photograph to somebody other than the person who made the creative effort.

BOTTOM LINE: Good. There was no reason to treat photographers differently than any other authors. As long as all criteria of copyrightability are met (and, granted, not all photographs will meet that criteria, however lenient), the person whose creative effort results in the creation of the work should reap the benefits of being recognized the author of the work.