ned
Creation and the © copyright thereof is a thing. Particularly, it’s a thing that is infringed upon and stolen away from the creator on the regular by both the uninformed and the informed. In this writeup I hope to share some information on the subject to hopefully help people understand what Canadian laws apply to their own artwork, as well as inform those ignorant to Canadian copyright laws what laws they might be breaking. Knowledge is power.
Naturally, such legal documents turn into an exhaustive dictionary which not many people have the patience to read, however important they may be.
I’ll start with the easier to understand copyright outline with the Creative Commons, and move to the more substantial information included in the Canadian Copyright Laws.
Creative Commons for Canada
The most straight forward copyright rules to abide by are the Creative Commons summary. According to the policy I’ve adopted, all my work falls under the Attribution-NonCommercial-NoDerivs 2.5 Canada (CC BY-NC-ND 2.5 CA), which, in a nutshell explains:
- Attribution — You must give appropriate credit, provide a link to the license, and indicate if changes were made. You may do so in any reasonable manner, but not in any way that suggests the licensor endorses you or your use.
- Non-Commercial — You may not use the material for commercial purposes.
- NoDerivatives — If you remix, transform, or build upon the material, you may not distribute the modified material.
Canadian Association of Professional Image Creators
Further to this, there are certain automatic copyright privileges given to image creators in Canada. The Canadian Association of Professional Image Creators (CAPIC) explain in a fairly easy to read Copyright Law and Digital Guidelines (they even have a 4 part video! and templates to download and use).
Canada Copyright Act
Now, the most substantial and probably elusive document on the subject is the Canadian Copyright Act, which defines:
Copyright in works
3. (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right.
- (f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication,
- (g) to present at a public exhibition, for a purpose other than sale or hire, an artistic work created after June 7, 1988, other than a map, chart or plan,
Conditions for subsistence of copyright
5. (1) Subject to this Act, copyright shall subsist in Canada, for the term hereinafter mentioned, in every original literary, dramatic, musical and artistic work if any one of the following conditions is met:
- (a) in the case of any work, whether published or unpublished, including a cinematographic work, the author was, at the date of the making of the work, a citizen or subject of, or a person ordinarily resident in, a treaty country;
Term of copyright
6. The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year.
Ownership of copyright
13. (1) Subject to this Act, the author of a work shall be the first owner of the copyright therein.
Work made in the course of employment
(3) Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but 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.
Assignments and licences
(4) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations relating to territory, medium or sector of the market or other limitations relating to the scope of the assignment, and either for the whole term of the copyright or for any other part thereof, and may grant any interest in the right by licence, but no assignment or grant is valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by the owner’s duly authorized agent.
Moral rights
14.1 (1) The author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.
Infringement generally
27. (1) It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do.
Secondary infringement
(2) It is an infringement of copyright for any person to
- (a) sell or rent out,
- (b) distribute to such an extent as to affect prejudicially the owner of the copyright,
- (c) by way of trade distribute, expose or offer for sale or rental, or exhibit in public,
- (d) possess for the purpose of doing anything referred to in paragraphs (a) to (c), or
- (e) import into Canada for the purpose of doing anything referred to in paragraphs (a) to (c),
a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it.
Infringement — provision of services
(2.3) It is an infringement of copyright for a person, by means of the Internet or another digital network, to provide a service primarily for the purpose of enabling acts of copyright infringement if an actual infringement of copyright occurs by means of the Internet or another digital network as a result of the use of that service.
Copyright Conclusion
As a photographer and a digital image creator, I do find my work being essentially stolen. I continually find my work:
- published with my copyright/logo taken off of the images (which I put on every single image I publish on the internet to make sure I am known as the photographer),
- published without any credit given to me as the copyright holder (photographer), or
- published as a derivative without any consent given by me, or recognition given to me.
Yes, this includes social media sites like Facebook, Instagram, personal websites, e-zines, magazines, event promotion, etc.
To this end, I am very curious if my work exists in printed form (sold) without my consent?
What do I do? Well, before I do any kind of photoshoot with a perspective client, I have a Copyright agreement signed which outlines the terms of engagement. This clearly outlines what is expected of the client should they use my images in any form of print or media, captures their signature acknowledging the terms, and emails both of us a copy of the signed agreement for records and review (if you’re curious, please send me an email and I’d be happy to share my form with you). If this isn’t signed, I don’t shoot – at least to date anyways.
I do recognize that not everybody is informed of these Canadian laws or even cares about them. They are important. They are laws that have been fought for and won by artists like myself seeking to make a living at what we do. Breaking laws means we can’t do what we’re trying to do. Breaking the laws ensures that our profession will not last. If you like the work, don’t break the law. BUY GOOD ART. Simple.
Have I ever chased after somebody infringing on my Copyright? Yes, yes I have, but I am nice about it. I’m not looking for people to not use my images. I’m looking for people to pay me if they want to use my images without any recognition given to me as the photographer. If they don’t want to pay me, they use my low resolution images that have my watermark on them. This goes for clients, models, magazines, e-zines, websites, promoters, etc. This policy works as a way to help promote my work through advertising and also ensure that enterprises with budgets don’t take advantage of the hustling professional (me). If you’re using an artists work to make money, it is very logical that the artist should receive some form of royalties for their work.
Now my question to you is: have you infringed on a creators copyright and do you care now?