July 9, 2012 @ 09:00:00
Repeal of Section 13(2) of the Copyright Act - Good Or Bad?
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Copyright Modernization Act repeals s. 13(2) of the Copyright Act.

This was a section vesting the first copyright in a photograph or a portrait in the person who ordered and paid the photographer or the artist to take the photograph or create the portrait. In other words, when you paid a photographer to take a picture of you, unless you had agreed otherwise, it was you who owned copyright in the picture, not the photographer.

Now this provision is repealed, and it will be the photographer who will own copyright in the photograph or portrait he creates, even if the photographer is paid to do so.

This gives photographers essentially the same rights as web designers, copywriters, software developers, and everyone else who creates content for others. Just because they are getting paid to do something does not mean that the person who commissions the work will automatically own copyright in the works they create.

If ownership of copyright is important, the parties must sign an agreement that would unambiguously transfer copyright from the photographer to the person who ordered the photographs.

The repeal is also backed by adding a new s. 32.2(1)(f), which allows for non-commercial use of the photographs and portraits by the person who ordered and paid for such photographs and portraits. I will discuss this new provision as we get there.

BOTTOM LINE: Good. Even though it may add to the transaction cost when hiring a photographer, it is fair for the Copyright Act to recognize that if the photograph falls under the definition of an “original artistic work”, the photographer should be the first owner of it. If owning copyright in the photograph is important for the person who commissions the photograph, it should not be a problem to sign a short form assignment of copyright.

PS. If you are a photographer or someone who uses services of a photographer, you need to have a professionally drafted agreement that will Protect Your Ideas and Cover Your Assets™. From the legal standpoint, it does not matter who will end up owning copyright in the photograph. What matters is that both the photographer and the person paying the photographer for the photograph know exactly who will be the copyright owner in it.

I have been drafting copyright licenses and assignments for over 15 years. Let me know if I can be of assistance to you.

Categories:Intellectual Property:Copyright
Additional Tags:New Copyright Act
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