The Copyright Modernization Act gives certain rights to the owners of qualifying literary, dramatic, musical and artist works. In general, the owner has the sole right to produce or reproduce the work, to perform the work in public or if the work is unpublished, to publish the work. These are important economic rights.
Under the prior Copyright Act, photographs, engravings or portraits were treated differently than other “artistic” works, such as paintings, drawings, maps, charts, plans, sculptures, works of artistic craftsmanship or architectural works of art.
Whereas for most “artistic works, the author or creator of the work, was the first owner, this was not the case for photographs, engravings or portraits. By virtue of a special provision, s. 13(2), whomever commissioned a photograph, engraving or portrait, and paid valuable consideration for it, was the first owner, unless there was an agreement otherwise.
The Copyright Modernization Act, pealed s. 13(2), removing the “special” consideration given to photographs, engravings and portraits. Now, like any other “artistic” work, the author or creator is the first owner and enjoys all of the rights and privileges of an “owner”.
Significantly for Canadian photographers, it now means that the photographer can reap economic rewards from the use by others of their photos, should they wish to allow such use. While this result was possible under the old Act, IF, the photographer was able to negotiate for ownership of any such photo with the commissioner of a photo, this was not easy. Commissioning companies or individuals understood the future economic value of the photos being commissioned, especially in the current digital age, and were reluctant to part with this right. More often than not, the photographer, unlike his/her literary, musical or dramatic cousins, could not expect future revenue from a successful creation. Such revenue went to the “commissioner” of the photo.
With this change, Canada’s laws now align with most other industrialized countries of the world, including the USA, Britain, France and Australia.