Lights, Camera,... Harmonize: Photography Issues in Copyright Reform

• Author: Alex Cameron
• Pages: 408-434

FOURTEEN

harmonize

/

'harms.naiz

/

v....

(4)

make

or

form

a

pleasing

or

consist-

ent

whole.

(5)

coordinate

or

make

consistent.1

A.

INTRODUCTION

"Harmony,"

"consistency,"

and

"equality"

are

powerful

words

in law and

legal

policy. Framing objectives using these terms

can be an

effective

way

of

justifying legal change

and

limiting options

for

debate.

This

issue

has

arisen

in the

context

of

proposed amendments

to the

Copyright

Act2

under

Bill

C-6o3

in the

area

of

photographic works

— the

government's seeming-

ly

unassailable

objective

is "to

harmonize

the

treatment

of

photographers

Thanks

to

Michael Geist

for

having

the

vision

to

bring

this

important

project

to

fruition,

and to

Philippa Lawson

and

David Fewer

for

their

steadfast

support

and for the

privilege

of

representing

CIPPIC

on the

photography issues

and in

BMG

Canada

v.

Doe, 2005

FCA

193. Special

thanks

to

David Fewer

for his in-

sightful

comments

on an

earlier

draft.

Portions

of

this

chapter

are

derived

from

materials prepared

for

CIPPIC's

submissions

and the

author's testimony before

the

Standing Committee

on

Canadian Heritage

and the

Standing Senate Com-

mittee

on

Social

Affairs,

Science,

and

Technology.

All

views expressed herein

are

those

of the

author.

1

Canadian

Oxford

Dictionary,

s.v. "harmonize."

2

Copyright

Act, R.S. 1985,

c.

C-42,

>

[the

Act].

3

Bill

C-6o,

An Act to

amend

the

Copyright

Act,

<

www.parl.gc.ca/38/i/parlbus/

chambus/house/bills/government/C-6o/C-6o_i/C-6o_cover-E.html>

[BillC-6o].

408

Alex

Cameron*

Lights,

Camera,...

Harmonize:

Photography Issues in Copyright Refor

with other creators

in

terms

of

authorship

and

copyright

ownership."4

This

certainly appears

to be a

laudable

and

straightforward proposition.

However,

to

borrow

a

phrase

from

the

Honourable Senator

Kirby,

Chair

of

the

Senate

committee5

that

studied

the

photography issues

in

late

2004,

"there

is

nothing

in

life

that

is as

simple, when

you get

into

it, as it

looks

on

the

surface."6

This

chapter attempts

to dig

beneath

the

surface

by

providing

an

explo-

ration

and

analysis

of

photography issues

in

Bill

C-6o. This chapter sug-

gests

that,

with

the

blinders

of

"harmonization"

in

place,

the

proposed

amendments

fail

to

adequately address important issues

of

balance

and

consumer

protection, particularly

in

relation

to

ownership

of

commis-

sioned photographs.

Part

B of

this chapter provides

a

basic

framework

for

analysis

by re-

viewing

the

sections

at

issue

and

outlining

the

proposed amendments.

Part

C

sketches

the

balance

and

consumer protection issues

that

arise

in

respect

of the

authorship

and

term proposals. Part

D

discusses what

is ar-

guably

the

most controversial

and

challenging aspect

of the

amendments:

consumer

protection issues

in

relation

to

ownership

of

commissioned

works. Finally,

in

light

of the

issues

identified,

Part

E

critiques

the

pro-

posed

amendments

and

suggests alternative ways

to

address

the

interests

of

photographers,

the

public

and

individual consumers.

B.

FRAMEWORK

FOR

ANALYSIS

The

Act

gives unique treatment

to

photographic works

in

three main

ar-

eas:

authorship, term

of

protection,

and

ownership.

The

former

two

areas

are

intertwined

and can be

dealt with together. However,

the

third area

arises under

a

narrow provision

of the Act

relating

to first

ownership

of

copyright

in

commissioned

works

and is

addressed independently below.

4

Canada,

Industry

Canada

and

Canadian

Heritage,

Government

Statement

on

Pro-

posals

for

Copyright

Reform

(24

March 2005),

/

internet/incrp-prda.nsf/en/rpoii42e.html>

[Government

Statement].

See

also,

Canada,

Industry

Canada,

"Frequently

Asked

Questions"

(24

March 2005),

>

[FAQ].

5

Standing

Senate

Committee

on

Social

Affairs,

Science

and

Technology

(the

"Senate

Committee").

6

Canada,

Standing

Senate

Committee

on

Social Affairs, Science,

and

Technology,

Minutes

of

Proceedings

(3

November

2004),

/

commbus/senate/Com-e/soci-e/pdf/O3issue.

pdf>

at 12

[Senate Hearing Novem-

bers].

Chapter

fourteen

Lights, Camera,

...

Harmonize

409