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37th PARLIAMENT, 3rd SESSION

Standing Committee on Canadian Heritage

EVIDENCE

CONTENTS

Wednesday, April 21, 2004

1530

The Chair (Ms. Sarmite Bulte (Parkdale—High Park, Lib.))

Mr. André Cornellier (Photographer and Copyright Vice-President, Canadian Photographers' Coalition)

The Chair

Mr. André Cornellier

Ms. Christiane Gagnon (Québec, BQ)

Mr. André Cornellier

Hon. John Harvard (Charleswood St. James—Assiniboia, Lib.)

Mr. André Cornellier

1535

1540

1545

The Chair

Mr. Alex Cameron (Member, Canadian Internet Policy and Public Interest Clinic)

The Chair

Mr. Alex Cameron

1550

The Chair

Ms. Nancy Marrelli (Chairperson, Bureau of Canadian Archivists' Copyright Committee)

1555

1600

The Chair

Mrs. Anne Kothawala (President and Chief Executive Officer, Canadian Newspaper Association)

1605

1610

The Chair

Mr. Ron Poling (Chief of the Picture Service, Canadian Press)

1615

The Chair

Mr. Gary Schellenberger (Perth—Middlesex, CPC)

1620

Ms. Nancy Marrelli

Mr. Alex Cameron

Mr. André Cornellier

1625

1630

The Chair

Ms. Christiane Gagnon

Mr. André Cornellier

Mr. Ron Poling

1635

Hon. John Harvard

Mr. Ron Poling

Mr. André Cornellier

1640

The Chair

Ms. Nancy Marrelli

The Chair

Hon. John Harvard

Mr. Ron Poling

Hon. John Harvard

Mr. Ron Poling

Hon. John Harvard

Mr. Ron Poling

Hon. John Harvard

Mr. Ron Poling

Hon. John Harvard

Mr. Ron Poling

Hon. John Harvard

1645

Mr. André Cornellier

Hon. John Harvard

Mr. André Cornellier

Hon. John Harvard

Mr. Alex Cameron

Hon. John Harvard

Ms. Nancy Marrelli

Hon. John Harvard

Ms. Nancy Marrelli

Hon. John Harvard

Ms. Nancy Marrelli

Hon. John Harvard

Ms. Nancy Marrelli

Hon. John Harvard

Ms. Nancy Marrelli

Hon. John Harvard

Ms. Nancy Marrelli

Hon. John Harvard

Ms. Nancy Marrelli

1650

Hon. John Harvard

Ms. Nancy Marrelli

Hon. John Harvard

Ms. Nancy Marrelli

Hon. John Harvard

Ms. Nancy Marrelli

Hon. John Harvard

Ms. Nancy Marrelli

Hon. John Harvard

Ms. Nancy Marrelli

Hon. John Harvard

The Chair

Ms. Nancy Marrelli

The Chair

Ms. Nancy Karetak-Lindell (Nunavut, Lib.)

1655

Mr. Alex Cameron

Mr. André Cornellier

Mr. Alex Cameron

Mr. André Cornellier

The Chair

Mr. Ron Poling

The Chair

Mr. Ron Poling

1700

The Chair

Mr. Gary Schellenberger

Mr. André Cornellier

1705

Mr. Alex Cameron

Mr. André Cornellier

Mr. Alex Cameron

Ms. Christiane Gagnon

Mr. André Cornellier

Ms. Christiane Gagnon

Mr. André Cornellier

1710

Ms. Christiane Gagnon

Mr. André Cornellier

Ms. Christiane Gagnon

Mr. André Cornellier

1715

Mrs. Anne Kothawala

The Chair

Ms. Nancy Marrelli

Mr. Ron Poling

1720

La présidente

Mr. Jeannot Castonguay (Madawaska—Restigouche, Lib.)

The Chair

Mr. Alex Cameron

1725

The Chair

Ms. Nancy Marrelli

The Chair

Mrs. Anne Kothawala

The Chair

Mr. André Cornellier

1730

The Chair

CANADA

Standing Committee on Canadian Heritage

NUMBER 008

3rd SESSION

37th PARLIAMENT

EVIDENCE

Wednesday, April 21, 2004

[Recorded by Electronic Apparatus]

¹ (1530)

[English]

The Chair (Ms. Sarmite Bulte (Parkdale—High Park, Lib.)): Good afternoon, ladies and gentlemen.

I'd like to call this meeting to order. Pursuant to Standing Order 108(2), this committee is studying the government status report on copyright reform. Today we are specifically spending the next two hours of this committee to look at the issue of photographic works.

I'm sure you have all seen the status report that was prepared by both the Department of Industry and Heritage Canada. We seek your guidance today as we listen to you discuss which options.... You've seen the two options that are available with respect to photographic works in the status report. We are here to get your input as to which option we should pursue—or if there are others, that you provide us with those options so that we can move ahead.

Hopefully after the end of next week, after we have listened to two weeks of testimony, we will be in a position to provide a report to the government.

We have, from the Canadian Photographers' Coalition, André Cornellier, photographer and copyright vice-president.

Mr. Cornellier.

[Translation]

Mr. Cornellier, good day and welcome to the committee.

Mr. André Cornellier (Photographer and Copyright Vice-President, Canadian Photographers' Coalition): Thank you, Madam Chair. Good afternoon, ladies and gentlemen.

[English]

Good afternoon, and thank you for inviting me to meet you on reforming Canadian copyright law.

My name is André Cornellier. I'm a photographer. I am also co-chair of the Canadian Photographers' Coalition, which represents over 14,000 photographers involved in all aspects of photography across Canada.

Our coalition includes members of the Professional Photographers of Canada, PPOC, and the Canadian Association of Photographers and Illustrators in Communications, CAPIC, of which I am a member.

From the earliest days of photography, Canadians have been recognized and respected for the artistry of our images. Canadian photographs are valued and collected, and works by Canadian photographic legends such as Notman, Karsh, and Malak are icons to people around the world.

Like all creators, we depend on copyright law to ensure the benefits and the integrity of our creations. The government status report includes two issues of photographic copyright that need to be reconsidered as part of the reform of Canadian copyright law.

First, the government has agreed to eliminate subsection 10(2) of the act. This section deems the owner of the negative plate to be the author of the photographic work. We agree that subsection 10(2) of the act must be eliminated. This will modernize our law to make it consistent with current technology.

The second major issue has to do with copyright and commissioned photographs. Here, Canadian copyright law has not kept pace with similar law in other countries. We are pleased that the government has agreed to amend the copyright law in a way such that the photographer will be the author of the photograph and own the copyright on all commercially commissioned work.

Like most international copyright law, the Canadian act generally awards first ownership of copyright in works to its author. Unlike most other creations, however, commissioned photographs are excepted. In Canadian law, the commissioner of the photograph, not the author, is deemed to be the copyright owner of the image, absent any agreement to the contrary.

This bizarre anomaly was borrowed by Canada from a now-defunct British act that was in effect in 1924. While many countries, including the U.K., France, and the U.S., once legally discriminated between photographers and other creators, they have all changed their law to give photographers the same copyright as other creators; yet Canadian copyright law continues to be out of step with the rest of the world.

This outdated law is costing Canadian photographers lost revenue every year. In the U.S., stock photography is a business that has soared since the advent of the Internet, generating $3.7 billion U.S. each year. Sales at the largest U.S. stock photo agency alone are worth $700 million a year, but because Canadian photographers are not always the first owners of copyright, we are unable to fully participate in the stock photography market.

The first condition for a photographer to participate—

The Chair: Excuse me. Could you just explain what stock photography is?

Mr. André Cornellier: Absolutely. Stock photography—

[Translation]

Ms. Christiane Gagnon (Québec, BQ): You speak French, but you are reading your text in English. You are going much too quickly, and the interpreter does not have time to translate everything you are saying. I would therefore ask you to slow down a little. Thank you.

Mr. André Cornellier: Yes, of course.

[English]

Stock photography is basically like an agency. It acts for me as an agent. It represents hundreds of photographs and what each company.... Here is a Canadian stock agency. It publishes books like this, where images are done by a photographer and put in to that agency. Those images belong to the photographer. The agency acts as an agent or a representative and takes a cut when it licenses the photograph. Those photographs are not sold; they are licensed. For each usage they negotiate a price and keep a percentage and give the rest to the photographer.

Hon. John Harvard (Charleswood St. James—Assiniboia, Lib.): It's sort of like a commercial library.

Mr. André Cornellier: In a sense it is. Basically, the photographer still owns his copyright. He puts it with this company, which has a big website, and people go to the website and search. It's for advertising, magazines, brochures, and things like that. If Bell Canada needs, for instance, a person on the phone, they will rent it there. Bell Canada will pay a fee to use that image for six months, let's say, in newspapers.

The first condition for photographers to participate in stock photography is to own the copyright. Because Canadian law has two different types of copyright ownership, stock agencies are reluctant to accept work from Canadian photographers.

Canada has one-tenth the number of photographers the U.S. has, but our larger image bank takes in only $21 million per year, only a fraction of what it should. On an individual level, based again on American experience, we believe many Canadian photographers are losing between $50,000 and $100,000 a year in revenue.

In their updated paper of the section 92 report tabled last month with this committee, the government agreed that for commercial photography the copyright should be awarded to the photographer. We applaud this long overdue decision and we thank everybody for it.

Unfortunately, the paper indicated that the government is still concerned about commissioned photos taken for private and domestic purposes. As I understand it, the major concern offered against extending copyright protection to photographs commissioned for domestic purposes comes from Industry Canada and has to do with the need to protect the privacy and the use of the people depicted in the photograph.

You may have heard that giving the copyright for commissioned work to the photographer could jeopardize the right of the individual in the photograph to protect and control the use of their likeness. This is not a valid concern. In fact, individuals captured in commissioned photographs already enjoy multiple layers of privacy protection, far beyond anything that might be implied in subsection 13(2) of the Copyright Act.

To begin, the privacy rights of the individuals captured in photographs have clearly and strongly been protected by the Supreme Court of Canada decision, Aubrey v. Éditions Vice-Versa Inc. in 1998. In this decision the court held that the right to control the publication of a person's image was a fundamental component of the right of privacy. This right to control the publication of a person's own image exists no matter what subsection 13(2) of the Copyright Act says.

The privacy acts in Quebec, Manitoba, Saskatchewan, British Columbia, and Newfoundland also expressly protect the right of persons depicted in commissioned photographs from having their likenesses used without permission. In addition, Canadian tort law, such as on appropriation of personality, defamation, and duty of confidentiality, adds an extra layer of protection for persons depicted in a commissioned photograph from unwanted commercial use of their likeness. All of this is in addition to the common industry standard, which dictates that a signed model release should be obtained whenever a person can be identified in a photograph.

Beyond the fact that photographs already enjoy privacy protection, several government studies also have clearly said that the Copyright Act is not an appropriate vehicle to protect privacy rights. For example, in 1984 the white paper, From Gutenburg to Telidon , said that legislation pertaining to copyright was not intended to protect privacy. It told the government to repeal the section on commissioned work and to specify that the author of the work is the copyright owner. The year after, in 1985, a report called A Charter of Rights for Creators, prepared by the Subcommittee on the Revision of Copyright, said the same thing.

As you can see, Canada already has a well-developed, comprehensive system of rights laws that fully protect Canadians from the inappropriate or unauthorized commercial use of their image.

In virtually every other industrialized country, photographers hold the copyright to their commissioned photographs and the privacy rights of the people depicted in those photographs are still protected. These rights are protected through privacy law, not through copyright law, which is the way it should be. There is one major exception: Australia.

¹ (1535)

Some of you will have heard that while Australia's new copyright law generally assigns the copyright for commissioned photographs to the photographer, there is an exception for commissioned photographs taken for private and domestic purposes. For these photographs, the copyright in Australia is awarded to the commissioner. We asked ourselves why Australia would do something so different from other countries. The answer we found is that there is absolutely nothing in Australian privacy law to protect the use of a person's image. Australia's situation is different from Canada's. Its copyright law includes privacy protection. Without it, there would be no legal protection at all.

Every other country, including the United States, has chosen to protect privacy the same way we are proposing. This is the same approach Canadians should adopt in modernizing our own Copyright Act.

Photographers agree privacy is of paramount importance and we take it seriously, but the proposed solution will not work in the reality of the marketplace. We are concerned that importing the Australian example into the Canadian law could do more harm than good. In many if not most situations, the commissioner of the photograph and the individual contained in the photograph are not the same persons. Think about the group photograph. One person will commission the work and hold the copyright, not only on his own image but also on everyone else in the group. A lot of the time the person who commissioned the work does not even appear in the photograph. Consider schools that commission photographers to take school pictures of hundreds of children each year. Under Australian law, the copyright should rest with the school--not the parents, not the child in the picture. Another example would be the photo of a junior sports team, a baseball team, a golf tournament, or a tennis tournament. In each case, the copyright would not rest with the persons in the photograph. The school, the hockey coach, or the golf club that commissioned the photograph would own the copyright.

What happens if the school closes, if the hockey coach changes, if the golf club is sold? Wouldn't it just be easier for everyone to contact the photographer? They would have to contact him anyway, because he would have the original needed to do the reproduction.

Let's look at wedding photography. Most of the time a relative will commission and pay for the photos as a gift to the married couple. This person--the father, the mother, or the uncle--would own the copyright. He would own the copyright on the photographs not only of the bride and groom, but also of the minister, the family-in-law, the friends, the co-workers, the catering staff, the limousine driver, and a lot of other people he doesn't even know. Should all these people have to ask permission from the uncle of the bride to reproduce their likeness? What happens to the copyright after that person is dead? What happens if there's a divorce?

In all of these situations, the personal privacy of the person actually shown in the photograph would receive no additional protection from the Australian amendment. The copyright would not be owned by the person in the picture or the photographer. It would be owned by a third person. How does that help privacy?

When the copyright belongs to the photographer everything becomes simple. Everyone knows who owns the copyright and the original. Everyone knows where he can get prints. Because of Canadian privacy law, the photographer cannot let them have prints if he doesn't have the permission of the people in the photograph. In fact, it is the only way to ensure that the person in the photograph is giving his or her consent.

Removing one exception and replacing it with another will not solve the problem. It will not help or protect Canadian photographers in the world market, and it will not protect people's rights to control the use of their image.

¹ (1540)

In conclusion, I want to remind the committee that there is currently a private member's bill dealing with this subject in the other place. Bill S-20 was introduced by Senator Joseph Day, a noted intellectual property lawyer. If passed, it would address all the amendments of the copyright that are needed. If this bill makes it to the House, I would encourage all members of this committee to support it.

I want to thank you again for inviting me. I hope my presentation has convinced you that Canadian photographers need and deserve copyright protection for their commissioned works.

I would be pleased to answer your questions.

¹ (1545)

The Chair: Thank you very much, Mr. Cornellier.

You should know that we did ask Senator Day to appear as a witness today, but he was unavailable to do so because of a conflict in his schedule.

Okay, next we have the Canadian Internet Policy and Public Interest Clinic, Mr. Alex Cameron, a member.

Mr. Cameron, one of the things I did forget to suggest at the beginning is that we keep our comments down to about 10 minutes, just so we have the opportunity to ask questions.

I gave you the latitude, Mr. Cornellier, to go overtime a little bit because I hadn't stated that.

Mr. Alex Cameron (Member, Canadian Internet Policy and Public Interest Clinic): I planned for less.

The Chair: Okay.

And just so you also know, we have a vote this evening. I want to have all the witnesses be able to finish their testimony, and then ask questions.

Thank you, Mr. Cameron.

Mr. Alex Cameron: Thank you.

My name is Alex Cameron. I'm a lawyer and a graduate student at the University of Ottawa. I'm here today on behalf of the Canadian Internet Policy and Public Interest Clinic, which is called CIPPIC. CIPPIC is a legal clinic at the University of Ottawa that speaks to and studies copyright issues in the public interest. It has a website at www.cippic.ca, if you're interested in knowing about the various projects we have.

We filed a written submission last week, which I believe was e-mailed to all of the members. We apologize for the late delivery of that report. I don't believe it has been translated, but I think it's underway.

In brief, CIPPIC agrees that photographers should be treated in the same way other creators are under the Copyright Act. The problem with simply repealing subsection 13(2) is that it would be unfair to everyday Canadian consumers. The committee needs to consider the interests of consumers. That's what we're here to speak to today.

The solution I'm going to propose meets the interests of photographers and consumers. It's important to note that with respect to each of the points I'm going to make, we're talking about a default rule. We're not talking about an absolute right. It's not something that limits the ability of photographers or other creators to have copyright on their works. In our submission, default rules, such as the one we're talking about here, should favour the weaker party in the bargain so as to put the onus on the appropriate party, the stronger party, to set out a different allocation of rights in a contract.

CIPPIC has three recommendations to speak to this issue. The first is that those who commission any work, not only photographic works, for personal or domestic purposes should have first ownership of copyright in such works, subject to an agreement to the contrary. In our submission, this is a common sense, balanced, and fair situation for the personal and domestic commissions. For commercial commissions, different rules apply. We agree with the photographers that the rules should be changed.

This recommendation reflects the reasonable expectations of Canadian consumers, which are twofold. When they go to hire a photographer, for example, to take photos of a wedding, they expect the right to be able to use those photographs in the sense that they want to be able to copy them, send them to friends, put them on family websites, and things like that, for personal and domestic uses.

The second expectation that consumers have when they hire and pay a photographer, or another type of creator, is that the creator is not going to go out and make use of the work. When the couple hires the photographer to take photos of their wedding, or whoever hires them, they have an expectation that the photograph is not going to end up in one of those stock photograph books that are being commercially used. If the rule was changed, as is proposed, or the rule is simply repealed, that could happen because the copyright owner is the photographer and the photo could end up in one of those books.

Again, I'll remind you that the rule we're proposing is merely a default. There's no limitation on creators obtaining the copyright through a standard form contract. The onus should be on the creator, the photographer, to raise the issue with the consumer. It's not up to the consumer to raise those issues. It's not fair to expect that they will.

The default rule should favour the weaker party, which in this case is the consumer. The consumer is not in the business of copyright, is not sophisticated about those issues, and doesn't have the information. If you put yourself in the shoes of the everyday consumer, most of them are not going to raise this issue. It's fairer to have the creators obliged to raise it.

As I said, commercial commissions warrant a different default rule. For example, if a magazine hires a photographer to take photos of something, the rule should be that the photographer, by default, has copyright in commercial situations.

The recommendation we're proposing treats all creators equally. We're submitting that it should be expanded to apply to all types of work, not only photographic work. It's the nature of the commission that matters; it's not the type of work that matters.

¹ (1550)

Whether it's a case of somebody hiring a photographer, a poet, or anybody else, if it's for personal and domestic purposes, the default should be that the consumer has first ownership, subject to an agreement to the contrary.

CIPPIC's second recommendation is that those who commission photographic or other works--again, for personal or domestic purposes, so the category is limited--should have statutory rights in the Copyright Act to restrain uses of those works, to prevent them from being put in a stock book, for example, or put on the cover of a magazine. Again, this is subject to an agreement to the contrary. The rationale for that rule is the same as for the first recommendation I've just indicated.

I'll speak briefly just in reply to some of the privacy points. The Aubrey case is a case clearly decided under Quebec law, and there's no reason to expect it's going to be applied across Canada. Our privacy legislation, PIPEDA, has exceptions that deal with artistic, literary, and news reporting, and that exception means no consent is required for those kinds of works.

The second recommendation I have here in effect requires the creators to get the consumer's consent to display, distribute, or use commissioned works. I'll note that this approach has been taken in England, New Zealand, Ireland, and Holland; this is not just Australia having some strange provision in its act. All of these countries have rights for consumers who commission works in these kinds of circumstances.

The third recommendation is particular to portraits, and we submit that portrait subjects should have a right to restrain reproduction and communication in public of the portraits in which they appear, because they have a very particular and personal interest in restraining that kind of use. That recommendation would apply regardless of who owns copyright, and again, it requires a portrait artist to get the consent of the person who sits for a portrait if the artist wants to make subsequent use of it. Those particular rules are also found in the legislation of Holland and Belgium.

Before I conclude, I just want to make a remark on one point I missed with respect to the first one, which is the default ownership of copyright. Both New Zealand and Australia have provisions that vest the initial ownership in the consumer in personal and domestic situations, not just Australia.

Those are my three recommendations, and I'll be happy to answer any questions.

The Chair: Thank you very much, Mr. Cameron.

We'll complete hearing from our witnesses. Next we have Nancy Marrelli, chairperson of the Bureau of Canadian Archivists Copyright Committee.

Welcome.

[Translation]

Ms. Nancy Marrelli (Chairperson, Bureau of Canadian Archivists' Copyright Committee): Good afternoon. My name is Nancy Marrelli. I am the archivist at Concordia University in Montreal.

[English]

I am also the chairperson of the Copyright Committee of the Bureau of Canadian Archivists.

I welcome the opportunity to respond to the invitation of the Standing Committee on Canada Heritage to speak to members of Parliament about changes in the copyright law dealing with photographs. I'm speaking to you today as an archivist; you don't hear too many of them, probably.

I'm here because there are millions of photographs in the holdings of archival institutions across Canada. There are more than 21 million photos in the National Library and National Archives of Canada alone, just a short walk down the street. There are millions more in provincial, municipal, university, and other archives across the country, and even more in family archives, in shoe boxes, photo albums, envelopes, and small paper bags. These photographs are an integral part of the heritage and culture of Canadian society. They tell us and show us who we are, what we do, and where we come from.

The recommendations members of Parliament will make on copyright protection for photographs will have immediate economic implications for professional photographers, but they will also affect Canadian culture and heritage. The status report discusses Bill S-16, a private member's bill in the Senate. The amendments to the Copyright Act in that bill reflect the needs and interests of professional photographers. We believe the bill and the status report outline the issues in a very narrow way, addressing specific problems but leaving out other important considerations, considerations that are important to us.

Committee members have heard the view of professional photographers and will hear that of newspapers. They have important and legitimate interests the committee needs to hear, and we agree with that. What I can bring to you this afternoon is quite a different perspective: the archival point of view. Archival holdings contain photographs by professional photographers, but these represent only a small fraction of the photographs taken in this country and a small fraction of the historical photographs found in Canadian archives. The vast majority of the photographs in our archives are taken by ordinary people like you and me, non-professional photographers.

Let me tell you a little bit about my world. The stakeholders I represent are the people who are entrusted to collect, preserve, and make available for historical research photographs taken by ordinary Canadians as well as by professional photographers ten, twenty, fifty, a hundred, and even more years after a photo is taken. This is what archivists do; it's what I do.

These photos are an integral and important part of our national heritage. Any recommendations the committee makes concerning copyright protection for photographs must ensure that the photographs in archives can be used for research and study purposes and don't descend into a bureaucratic black hole where they are not accessible to Canadians. And I'm talking about over the long term, not the short term, necessarily, or even the medium term.

There are many copyright problems with archival photographs taken by ordinary Canadians. Most often, the person who took the photograph is unknown. Your uncle Joe, your cousin Sally, and your next-door neighbour don't sign their photographs. I don't know who took most of the photographs in my own family albums, particularly the ones that are a little bit older than I am. Without the information about who took the photograph, it is impossible to locate the copyright owner. It is therefore impossible to get permission for or to give permission to our researchers to use the photograph. If a researcher cannot get permission to use the photo, it sits in copyright limbo, and valuable historical research becomes impossible.

The questions of ownership, authorship, and term of protection for photographs are very straightforward if you look at it from the point of view of a professional photographer, and I think we heard that presented in a very straightforward way this afternoon.

¹ (1555)

The same questions are much more difficult and complex when examined from the point of view of an archivist responsible for providing access to millions of photographs for which there is no information about who owns the copyright and who took the photo, let alone when that person died.

CIPPIC, who we just heard from, has put forward an interesting solution to address some of the issues I'm raising. They suggest giving different copyright protection to domestic and commercial photographs taken by professional photographers. We think it's an innovative solution, although, as it stands, as we have seen it, we don't believe the suggestion is workable or practical for the long term. As well, we think it addresses only part of the problem.

I don't have legislation to suggest to the committee. I wish I had a magic wand that could fix all of this for all of us sitting at this end of the table, but I don't. What I do suggest is that we need to identify solutions other than those found in the status report. We need a copyright law that protects the economic interests of professional photographers and at the same time provides access to the vast photographic collections that have historical rather than commercial value. That's probably most of the photographs taken in this country.

I don't know what the possible solutions are. I do know that policy analysts in the Departments of Heritage and Industry are trained to do this work. We're ready and willing, and in fact eager, to sit down and work with them and with other stakeholders to come up with viable solutions.

Going forward with amendments based on a private member's bill that was drafted to address the problems of professional photographers will not meet the needs of all the stakeholders affected by this legislation. This would not serve Canadians well.

I want to be very clear that I think the economic interests of professional photographers and other creators have to be considered, and have to be considered very seriously. We are fully prepared to do this. However, the interests of other stakeholders also need to be considered. This means including the interests of researchers and the archives and archivists who are responsible for acquiring, storing, preserving, and making available the documentary heritage contained in the many millions of photographs in archival collections across this country.

My suggestion to the committee is that it recommend to the responsible departments that policy options be identified on the ownership, authorship, and term of copyright protection for photographs that consider all the stakeholder interests affected, including the economic interests of professional photographers and the interests of all the ordinary citizens who take photographs and record the visual history of our country while expecting that these will be available in future generations.

The archival community believes very strongly that there is a need for serious policy analysis and public discussion as an integral part of the process for change in copyright legislation. Copyright legislation for photographs has important implications for public policy, affecting all Canadians within our society, not just one constituency or another. There are Canadians who would not be considered traditional stakeholders who want a voice in the debate on these public policy issues. The process should include an opportunity for full and open discussion and exploration of the public policy issues by a wide representation of Canadian society rather than a pressure-cooker atmosphere where powerful lobbyists dominate the debate. We believe this approach can help build true public consensus on these important issues.

Finally, I would like to leave with the committee what we think is an important guiding principle: a robust public domain is an essential element of an informed and participatory society. Copyright law grants a limited monopoly to copyright owners. Copyright protection does not extend beyond original expression, nor does it last for an indefinite period of time. Facts and ideas remain outside the scope of copyright. At the end of a specified period of time, even protected works fall into the public domain.

º (1600)

In the view of the Bureau of Canadian Archivists, safeguarding the public domain and keeping it robust is as fundamentally important as protecting the rights of individual and corporate owners of copyright.

I would be pleased to answer any questions committee members may have.

The Chair: Thank you very much, Ms. Marrelli.

Next is Anne Kothawala, president and chief executive officer of the Canadian Newspaper Association.

Did I pronounce that incorrectly?

Mrs. Anne Kothawala (President and Chief Executive Officer, Canadian Newspaper Association): No, you did fine.

Thank you very much, honourable members.

The Canadian Newspaper Association is a non-profit trade association that represents daily newspapers, both French and English, from sea to sea. Our mandate is to promote and protect a free press.

A news photo, which is what I'm going to focus on, is a product of the investment by news gatherers in the opportunities to cover news events throughout the world. Daily newspapers play an essential role in a democratic society by disseminating news, both good and bad, to Canadians. Stories and photos are the result of huge investments of both human and financial capital.

A daily newspaper, which is mandated to cover the news, among other functions, must often, one, get on the phone; two, make the deals with the subject matter; three, get the accreditation; four, rent the vehicles or pay mileage; five, purchase the tickets to get the photographer into the right place at the right time to take the photo that can be used in assisting in reporting on the news; and finally, get a photographer to that right place at the right time.

Most Canadian newspapers and the Canadian Press hire as staffers the best available news photographers. They then send their photographers throughout the country to events and places. It is a practice that's generations old, for as long as newspapers have been publishing photographs.

If the newspaper cannot get a staff photographer to the intended site, then it may make an arrangement through a news service, another newspaper, or perhaps another photographer under a contract to take on the assignment in the place of the staff photographer. That contract photographer will be put into the same opportunity created by the newspaper to take the photos and to get them to the newspaper on a timely basis. That contract photographer is an integral part of the assigning processes of a newspaper, to cover the news on a timely basis when it is not possible to assign a staff photographer.

If legislators are looking at what they are being told is merely some historical anomaly, that photographers should be handled in the same way as news writers, then they should be careful to realize that it is not quite so simple.

Photographers, who are part of the regular assignments created by newspapers, cover the news in much the same way as news reporters and writers. They should not have any different rights to determine what use can be made of those photos. It is for another day to review with you whether employees of newspapers should not have the right to restrain the use of their product, as referred to in subsection 13(3)--which, we submit, does not deal with today's technological realities--but today we can put in front of you the way in which news photos are taken and how the market actually works.

Legislation that tries to interfere with and alter existing contractual relations and ongoing labour negotiations is unwelcome and frankly unnecessary. There are definitely two sides to these discussions as to the rights in photographs taken by news photographers acting on assignment from daily newspapers. We sincerely ask you not to be swayed into believing it is a simple and uncomplicated matter of correcting an historical anomaly. It is not. It is far more complex and it is something that has been, and will continue to be, the subject of labour negotiations and contractual discussions for the rest of time.

The national newspaper awards program has been awarding prizes for photography for the past 55 years. Over that time, there have been monumental moments captured on film that have been enjoyed and treasured by Canadians from coast to coast, and repeated many times in an historical context. In one memorable incident, a legendary Canadian Press photographer took a photograph of the late Prime Minister Pierre Trudeau doing a pirouette behind the Queen's back.

º (1605)

Sometimes newspapers want to publish photos taken by photographers who are not part of the normal news coverage activities and assignments of the newspaper. These are true freelancers. They own their product or the company they work for does. That company may be a news agency, a syndication service, or a news operator of some sort, which has made a substantial investment in creating the opportunities in which the photos are taken. The newspaper must negotiate for whatever rights it can get with the owner of the copyright with regard to the desired photos. The newspaper and that copyright owner are entirely at arm's length. The more the newspaper wants the photos, the better is the bargaining position of the copyright owner. It is the free market in play. Surely, legislators need not be involved in negotiations between newspapers and legitimate freelancers who have created product independently of the publishers, who then want to license them.

In 2003, for example, a normal citizen, not involved in newspapers, took a picture of two roofers on top of a burning building. The workmen ultimately perished in the blaze. The photo was of immense public interest because of the apparent flawed rescue attempts by the firefighting unit, which stood by unable to help the doomed men. The Montreal Gazette purchased the photo from the citizen, who in turn donated his fee to the families of the victims. That photo has been nominated for a national newspaper award this year.

In closing, what I'd like to say is that removing subsection 13(2) from the Copyright Act will have the unintended consequence of affecting the quality of news gathering and dissemination in this country, which does not serve anyone's interests, particularly the public interest, and the public interest should trump the commercial interest.

Thank you very much. I'd be pleased to answer any questions.

º (1610)

The Chair: Thank you.

Last but not least is Mr. Ron Poling, chief of the picture service of Canadian Press.

Mr. Poling.

Mr. Ron Poling (Chief of the Picture Service, Canadian Press): Thank you.

The Canadian Press is a non-profit cooperative owned by member newspapers across Canada. We fulfill the function of sharing pictures among the newspapers and producing rich daily files of news, stories, and photos, which are used by newspapers, radio stations, and television and in websites, history books, and many other platforms to reflect Canada back to Canadians.

The Canadian Copyright Act touches everything that CP does. We create copyright photographs. We source photographs owned by other newspapers, international agencies, and freelance photographers. Protecting that content is essential to our continued success and existence.

We are interested in a modern, fair, and easily understood Copyright Act that will protect our good work and that of the other sources we represent and allow us to provide the kind of coverage of news events that Canadians need.

We use three different groups of photographers: full-time employees, contract photographers, and freelance photographers. But before discussing the difference between them, it's important to make a distinction between the written story and the photograph.

A story can be morphed into another copyright story simply by making substantial changes to it. Eventually it becomes someone else's copyright story. A writer can cobble together a story from television or talk to witnesses. A writer doesn't necessarily have to be there to produce a story.

A photographer, on the other hand, must be at the event when the event happens. There's no point in showing up late. The news unfolds when it unfolds, and to ensure that this state is taken care of and there is a photographer there, there are immense opportunities that have to be managed through good news judgment, through lots of resources, and through great contacts.

The opportunity created by CP before a staff or contract photographer is assigned is huge. CP gains privileged access to events and venues. It uses its carefully developed contacts to gain information, it arranges access, and it gives direction before assigning a staff photographer to an event.

The work produced from that shoot will be essentially the same, with minor differences that reflect the photographer's level of expertise and creative sense. In this case, we see no reason that ownership of the copyright should be dependent on whether income tax is deducted at source or not. The fact that the opportunity is created and the assistance of the staff of the wire service or the newspaper is immense in the actual creation of the photograph....

CP uses many freelance pictures. The copyright of these pictures is owned by the photographer. He or she creates the opportunity using his or her creativity, news judgment, access, and resources. CP negotiates on a per use basis for these pictures, and we do not in any way dispute the ownership of those pictures.

Because of these differences, CP does not object to the repeal of section 10 of the act, provided subsection 13(1) is amended to read: Subject to this Act and subsection (2), the author of a work shall be the first owner of the copyright therein.

Everything we do and our ability to do it effectively is framed in subsection 13(2). We do not see any need to change this section of the act. It allows photographers to negotiate in advance of a commission and it allows CP to move quickly to cover fast-breaking news, using staff or contract photographers as the situation dictates. It also protects the exclusive nature of the opportunities that CP creates and allows us to meet the legal and moral obligations we undertake when we accept privileged access to venues such as the House of Commons and the Olympics.

º (1615)

A good example is the Salt Lake City Olympics, where we sent four photographers, based on the fact that we were given only four accreditations. Canada in total, I think, got 15 accreditations at the time. We got four of them. We chose to send three full-time employees and one contract photographer. We paid all expenses. We negotiated the price with the contract photographer. We assigned each photographer to specific venues to cover.

As a result, all of the work was treated the same. We don't see any reason why they wouldn't be treated the same. The contract photographer essentially was producing exactly the same content, and it was costing the wire service the same amount of money to produce those pictures. We were able to send those pictures out to Canadians, where they belonged.

We don't feel that moral rights are an enormous issue in this discussion on subsection 13(2) because they're covered in subsections 14(1) and 28(2) of the act.

As far as the term of projection is concerned—which was another question raised in your summary—we don't have any objections to lengthening or changing the term, because that will in essence also protect our investment in the copyright images we own, and it will protect all of the other photographers who own copyright.

We only think there might be a practical problem there. Knowing right now the problems we're having, it is almost impossible trying to figure out when an author died, whether it was 40 years after the fact or 60 years after the fact. So if you felt that was something that was needed, we would prefer that you simply made it a longer term--70 years, or whatever, is adequate. But beyond that, we don't have a problem with that.

At that, I'll rest, and I'll welcome any questions.

The Chair: Thank you very much, Mr. Poling.

Mr. Schellenberger.

Mr. Gary Schellenberger (Perth—Middlesex, CPC): Thank you.

I never realized that this would be quite as complicated as it is. Every one of you has touched on things that are meaningful to me.

I know that most of us have been at weddings. That was my one concern, that the people who pay the big dollars or commissions for pictures taken at weddings would have the copyright to those pictures—or at least that those would be private anyway.

As I look around the table I see quite a few politicians. I don't know how many send out householders and such things, but I think about all the pictures that I or my staff take of people from the constituency who might visit the office. Not one of them have I asked to sign off. Lots of times we ask if they mind having their picture taken with me, or whatever. But those go out in my householder; so I don't know if I'm sticking to copyright.

I'm asking people to tell me, if we deleted this part of the Copyright Act, would I be in jeopardy of the law, or am I right now?

Secondly, archives are very important to me. My mother is the biggest archivist in our family. We have boxes full of pictures. In fact, I recently had a picture sent to me from an acquaintance who had left our area when he was about 10 years old. It was a picture of his father taken at a hockey banquet when I was about 10 or 12 years old. Everyone in the photograph, including the other young lad who's in there, has now passed away. I guess that particular picture was taken at the time by The Beacon Herald in Stratford. If I was 10 years old, the picture would be 50 years old. So I guess it could be done with whatever.... The time has gone by.

So for that particular picture, and the others that were taken some time ago, which are in the Schellenberger archives, who owns the copyright to those particular pictures?

º (1620)

Ms. Nancy Marrelli: Well, it can get very complicated, and that's what we're saying. It's a complex issue.

As you said yourself, the logistical issue of trying to ascertain who the rights holder is, and is this person dead or alive, 50 years after the fact.... It sounds so simple when you're doing it for today: “Yes, this photographer has a business; yes, he or she knows when the photographs were taken and knows who the photographer was who took it.” It's very straightforward. But 50 years down the line you're in a very different situation and you are in a never-never land. That's what we're saying.

We have people who show up at our door, and the photograph is there; it's in front of them. We have it and we're willing to provide access to it, but we have no idea who the copyright holder is and what the term of protection is.

This is a complicated issue. It's not just a question of fixing a little bit here and a little bit there. You're putting a finger in the dike and you're exploding the ground behind you.

There's a problem.

Mr. Alex Cameron: I would agree with that. I think it's been presented as a simple issue, but commissions have looked at this for decades and they've come to exactly opposite conclusions. A commission in 1957 said exactly the kinds of things we're saying today, that there are reasons for this rule in the consumer-type situation. Other commissions have said the opposite.

So there is a lot of complexity behind this issue.

Mr. André Cornellier: If I may, I think the point of Madame Marrelli is basically....

I don't know how the Copyright Act can resolve that.

You can say there is no copyright, and then she has access to every photograph, but as long as there is a copyright there will be a person to fine. If it's not the photographer, it's another person. But at this point, the Copyright Act says it's not the photographer or the person in the photograph who owns the copyright; it's a third party most of the time.

So basically, the two people involved, the photographer and the person in the photograph, should discuss those things and decide how to distribute the photograph. If the copyright belongs to the photographer.... The copyright is there to protect the work of an artist; it is not there to protect the privacy of the person. The Copyright Act says there's an artist who created something, and that artist should have the right to distribute his work and have money from that distribution.

When you come to photography, what seems to be complex is very simple, in a way, compared to other arts like painting or writing. In all the other arts there's only one right--the copyright. In photography, the copyright is the right of the photographer to say, “This is what I've done”. Whatever is in the photograph does not belong to the photographer and never will. We don't ask for that. So when we ask for the copyright we're asking the government to say, “Yes, this person is the artist who created the work”. Then if I want to distribute this work that I own, I have many permissions to ask for, and privacy is just one.

There's a law that protects all patents, so for any object I photograph that has a patent I have to ask the permission of the owner of the patent. If I photograph a can of Coke, there's a logo there. I have to ask permission of the Coke company. If there's a person in the photo, I have to ask the person for permission. So we don't want to own what's in the photograph. We're not asking that, and that's not why we're here. It won't change anything, because the person in the photograph will still have her say.

The gentleman is saying he's afraid we will distribute the photograph without permission if you remove subsection 13(2). In fact, if you remove subsection 13(2) or even put something in it, the Supreme Court has said specifically that the privacy law is above the copyright law. It comes first, and whatever is in the copyright law comes second. So even if you put something in the Copyright Act, it may not affect it as well as you could.

By giving the copyright to the person commissioning the work, you're giving it to a third party and rarely to the person in the photograph. When you give the copyright to the photographer, he has to ask that person. If you put a third party in there, suddenly there are three people involved and you have to ask permission of them so the photograph can be distributed. That makes it impossible. If the archivists are saying it's impossible now, it will be even worse at that point, because you'll be involving a third party. We're saying we want to simplify it so everybody knows who has the copyright--it's the photographer.

On the issue of a wedding, it's true that you pay more when you have a professional photographer. At that same wedding many people take photographs. You probably take some photographs, and the nephew takes some photographs, and the aunt takes some photographs. You don't have any problem distributing all these photographs among yourselves. Nobody asks questions, and there seems to be no problem in the whole family.

But you know that when you hire the professional photographer there's a plus value. You pay them money, and you know there's a plus value and that this person has a copyright. You know that from the start. It doesn't have to be explained to anybody. Everybody knows that the person is a professional. In that sense, you know there will be negotiations. If you want to use them, he will not refuse that. He will negotiate with you on the terms of usage. That's how we want it.

º (1625)

At this point, the Copyright Act gives the copyright to the commissioner. This will answer the part about the newspaper association. They say if you change the copyright it will change how they deal with labourers and contract people, but that's not true. All the labour negotiations are for staff, and staff won't be affected by that because all the copyright from staff will still be owned by the newspaper. No labour discussion will be changed in that because they will still own the copyright when it's a staff person.

That changes when you have a freelance photographer. They say they're paying the fee for the airplane of the freelance photographer. That's fine, but they're also paying the fee for the writer to go there, and under the Copyright Act the writer has his copyright.

They're also not saying what they're not paying for. For the staff, they're paying their vacation, pension, sick leave, employment insurance, insurance, and all of that. They're not paying that to the freelance photographer. The Copyright Act has always been there to tell those people they need to have money from other sources because they're not paid by those people.

º (1630)

The Chair: Thank you.

Madam Gagnon.

[Translation]

Ms. Christiane Gagnon: Mr. Cornellier, you gave one very important reason why the legislation should be amended. You also mentioned loss of income on the order of $50,000 to $100,000. I would like you to explain in more detail how photographers lose $50,000 to $100,000 in income each year.

Is the process to access a work so cumbersome and does it require so much time and energy that it prevents you from going forward with its use? I would like you to explain this in greater detail.

Mr. André Cornellier: As I said in my report, image banks are a significant market that generate US$3.7 billion a year. When you ask to have your images included in an image bank, the first thing you are asked is whether you hold the copyright. In other words, the company that is to take your photos and lease them out wants to be absolutely sure that you hold the copyright. If you do not hold the copyright, or if the image bank is not certain you do, they will not accept your photos for fear of liability. So they want to ensure you hold the copyright to your images.

In the United States, the United Kingdom, France, Germany and other European countries, copyright is held solely by the photographer. There is no exception to this anywhere. In other words, when a photographer submits photos to an image bank, the image bank knows that those photos belong to him, and it feels free to sell them.

In Canada, the legislation states clearly that a photograph belongs to the person who commissioned it, but can belong to the photographer provided there is a contract to that effect. This means one can never be sure whether a photograph from a Canadian photographer actually belongs to the photographer. There is no way of knowing if the photograph has been commissioned, whether there has been a contract, or what the terms of that contract may be. Image banks therefore refuse our photographs and do not include them in their catalogue. The result is that in Canada people buy images and photos from the U.S., France or the U.K.—be it for newspapers or magazines—because our photos do not appear in the image banks. Image bank companies refuse our photos because they cannot be certain our photographers hold the copyright. And since copyright is not vested clearly and solely in the photographer, the companies will continue to refuse our images. The figures you quoted reflect the average income calculated for the United States.

[English]

Mr. Ron Poling: Perhaps I could comment on a couple of the questions that were asked.

First and foremost, I think what we're seeing here is that it's not one size fits all. There are many different sides to photography, and there are many different reasons why the Copyright Act is important.

To us, the Copyright Act would be a real problem when trying to cover the news. When you know something is breaking, you need to dispatch a photographer right away. There is no time to negotiate an agreement, you have to send the photographer, and you don't have any rights to the photographs for historical purposes or for all of the platforms you feed. It would tie our hands and we would never cover the news.

There are so many things that make it so difficult. You referred to the privacy laws in Quebec. That has affected us enormously on how we cover Canada. We've been to court a number of times on frivolous lawsuits. It cost us a fortune because of the fact that we can no longer shoot daily life.

We have to be very careful. It has created more problems. We think it's wonderful that we would protect privacy. I want my privacy protected, but we have to be very careful, when we change the law, about the backward approach.

For our photographers in Quebec, we now tell them to forget about taking the slice-of-life pictures that we have photographed through time. You look back in our history books now and see those slices of life from the turn of the century. You won't see them because of the law.

º (1635)

Hon. John Harvard: It's the privacy law, not the copyright.

Mr. Ron Poling: It's the privacy law, right.

When you get into the copyright law, I think you have to be careful, too, about the other things it will affect. It will affect our ability to respond quickly.

Naturally, in an organization like The Canadian Press, which is a non-profit cooperative, we provide pictures to all platforms. We depend on the revenue that we earn to put back into covering the news. Our costs always go up, and somehow, miraculously, we never ever have an extra penny. In fact, we're always in deficit positions.

It's not a question of trying to make money off of this stuff. It's not a question of trying to take money from anyone else. It's only a question where we have to be able to disseminate the news quickly and we have to be able to quickly send photographers to cover things.

Frankly, we don't see the difference between a contract photographer and a staff photographer. I will correct what was said earlier. We actually pay our contract photographers more per hour than we pay our staff photographers to accommodate the things they don't get in benefits. It's not a question of that either. It costs us the same.

We use contract photographers because it's difficult to employ a cast of a thousand to cover a country like Canada. It's enormous. When something happens in Timmins or Muskrat Lake, we have to have a picture. How do we do that? Are we going to have a staff photographer at Muskrat Lake?

There are problems here. That's the important thing to us. Subsection 13(2) may be flawed in some ways, but do you know what? I think the legislators who put that in place in the first place did a pretty good job.

Mr. André Cornellier: Mr. Poling, I just want to ask you two questions.

First of all, you said you represented the Associated Press in the U.S.A. The Associated Press has to deal with that law in the U.S.A. where the photographer has the copyright, and they have no problem with that whatsoever. It's a good company and they're doing very well and they have no problems. So why do you say that if we change this here, it would lock you in and you would not be able to negotiate with a photographer at the last moment? I don't think that's how you do business, Mr. Poling. You never call a guy who you've never known, never heard about, and send him to a place the next minute without negotiating anything.

Second, if your counterpart in the United States is working without 13(2) and they're doing well, I don't think there should be a problem here.

We have an understanding with Rogers Corporation, which is one of the biggest publishers in Canada. They publish mostly magazines like Chatelaine, L'actualité, and other magazines. Again, it's the biggest publisher in Canada. All the photographers are freelance. None are on staff. Rogers doesn't retain the copyright on the work. By contract with all these photographers, it is the photographer who retains the copyright, and Rogers is just buying the first usage. So if Rogers Corporation can do it, I think other companies can do it.

I also have another group of people, the Fédérationcanadienne de l'entreprise indépendante. Mr. Garth Whyte, the national vice-president of the organization that represents all small businesses in Canada, says there is no problem with removing 13(2). He wrote a letter to that effect to the Honourable Allan Rock last year and gave advice on that.

Then there is the Copyright Coalition of Creators and Producers, which represents the Association of Canadian Publishers, the Canadian Independent Record Producers, and the Music Publishers of Canada. These people wrote a paper and sent it to Madame Sheila Copps a few months ago saying 13(2) has to be removed.

None of these companies is bankrupt. They are working very well, making a lot of money, and they have no problem with that. I don't understand how come the newspapers have this problem.

By the way, Mr. Poling's group, which is The Canadian Press, is owned by the newspapers.

º (1640)

The Chair: I'm going to have to ask everybody to make their responses a little bit shorter; otherwise we're taking Madame Gagnon's questioning time.

Ms. Marrelli, very quickly.

Ms. Nancy Marrelli: I would rather answer questions, but I did want to say one thing. I think everything everybody said here is pointing to what many of us have said on this panel: this is a complex issue. There is no quick fix. A quick fix is going to be problematic.

The Chair: Thank you.

Mr. Harvard, then Ms. Karetak-Lindell.

Hon. John Harvard: It sure sounds complex. I think since it is complex, perhaps we as politicians should try to avoid coming up with one size that fits all, whether it's copyright or anything else. Perhaps we should craft the law as flexibly as possible so that maybe through commercial arrangements, private contracts and so on, particular interests can be worked out.

When I was listening to Mr. Poling, and perhaps to Ms. Kothawala...I think, Mr. Poling, you were mentioning a situation where CP perhaps would send three staff photographers and one contract freelance photographer, and you were a little bit concerned about having to make hasty decisions given the fact that the contract photographer would essentially be doing the same work as the staff photographer. I think you're making a mountain out of a molehill, because it seems to me that if you have your act together, in situations like that, first of all, you're probably going to--not always--know where you're going to find contract photographers. Chances are you've talked to them already in earlier situations and you have found out perhaps whether they would waive their copyright rights, just waive them. You can sign a contract that would in effect put the contract photographer on the same footing as your staff. Could that not be possible?

Mr. Ron Poling: Yes--

Hon. John Harvard: Put it this way. Why should I, as a politician, try to write up some complicated copyright act so that I can sort out all the particular situations you have where you have five minutes to make a decision about sending a photographer, whoever it might be, to Rat Creek. Should I be doing that, as a politician?

Mr. Ron Poling: I don't think it's possible, because, as you can see--

Hon. John Harvard: If it's not possible, why force me into something that I'll probably screw up?

Mr. Ron Poling: What I'm saying right now is we have 13(2), which does define the way you can hire photographers. It has been working for years, and it has the ability to do the exact same thing in that there is the ability to enter into an agreement. A photographer does not have to enter into an agreement. And now what we're really just--

Hon. John Harvard: He doesn't have to enter into the agreement, but he doesn't have to get the work either. If he doesn't want to accept your waiver, you know what? No work.

Mr. Ron Poling: No, absolutely, and the reverse would be the same too if we had it.

Hon. John Harvard: Of course.

Mr. Ron Poling: If they didn't want to give up the copyright before we hired them, then we wouldn't have to hire them. There is that. So it's a question of there being no right way. There's no one way that fits. That's what I was saying. It's not that simple.

Hon. John Harvard: That's why I'm wondering whether we should be careful in what we might do.

What Mr. Cameron said had some resonance with me, and I was thinking of the example of the wedding photo. I think you called it, what, the default position? If a photographer takes photos of, say, my wedding, what the hell is he going to be reproducing it for anyway other than for my own purposes? It's just private property.

What kind of protection do you want, Mr. Cornellier? Why would you want to reproduce my wedding photo for your own particular commercial purposes?

º (1645)

Mr. André Cornellier: I would say that in the last 100 years--and I've not been working for 100 years but I've been in an association and I've heard about--

Hon. John Harvard: You stay around here and you'll feel like it's been 100 years.

Mr. André Cornellier: The law has been there for 100 years now, since 1924. But I've been working for 30 years and I do portraits, so I photograph people. In wedding photography, sir, I never had anybody who asked me if they could buy somebody else's wedding photographs. The only person who is very interested in buying wedding photographs, normally, is the groom and the bride and the family.

But let's say Coca-Cola or Pepsi or some commercial group came to me and said, I would like to buy this particular photograph. You see some of them in fact in advertising. You see wedding people in advertising. All of these are faked. They're models--hired, paid--with the costume, the makeup, and the artists. They don't buy real wedding photographs.

If by any chance they should decide they want to buy this particular one, the first thing they ask me each time they want to buy a photograph from me is if I have a model release. If I don't have the model release, they don't want to even consider buying the photograph from me.

Hon. John Harvard: What do you think of that, Mr. Cameron? How would you respond to the situation that he--

Mr. Alex Cameron: There are three responses to that, I think. The first is that fairness dictates that the default rule should be with the consumer. He's saying that in practice we're not going to go off and sell these things, but we don't rely on that. They have copyright. The fact is, they could go off and sell them. So that's one problem.

The second is that this situation does not meet the expectation of the consumer because it gives them no right to use those photos that they've hired and paid for. So they can't make copies of them. They can't then send them to their friends. They're copyright infringers if they're doing this under that kind of a rule.

So the situation should be, as we say, that the default is with the consumer, and if they're getting contracts anyway, there should be no big deal about getting the transfer of copyright in the contract if that's what they want to do. But the fact is, the photographer should be the one raising it with the consumer so there's a clear agreement about where the rights lie.

Hon. John Harvard: I have one more question and it's for Ms. Marrelli.

I have a real soft spot in my heart for your dilemma, or the problems you face, because it seems to me whether you're wanting to attain, secure, or keep hold of a photograph, whether it's one year old or 100 years old, it's part of Canadian heritage, part of Canadian history, and I think we, as politicians, have a responsibility to enhance and support your work.

I don't want a situation where perhaps holders of copyright of photographs are holding you to ransom, or if not holding you to ransom, then making your work very difficult and very expensive.

Ms. Nancy Marrelli: It's the case now.

Hon. John Harvard: That's the case.

Ms. Nancy Marrelli: We're in an abyss with many, many copyright holders because we don't know who the copyright holder is, and certainly in terms of dealing with some of these issues. That's why we feel it's crucial that--

Hon. John Harvard: Tell me this now, because you're dealing with a layman here. So you have some photograph, whether it's 20 years old or 100 years old, and you don't know who--

Ms. Nancy Marrelli: The 100-year-old ones are not an issue; 48 years plus is what we're talking about, and then the law changed.

Hon. John Harvard: All right.

Ms. Nancy Marrelli: It changed in 1998 to be life of the photograph, plus 50 years.

Hon. John Harvard: Just walk me through it, though. So you have a photograph and you don't know who took it, right?

Ms. Nancy Marrelli: That's right. That's a huge percentage of our photographs.

Hon. John Harvard: You don't know who was the photographer, right?

Ms. Nancy Marrelli: That's right.

Hon. John Harvard: So it's 25 years of age and you don't know who the photographer is. What is the fear if you just go ahead and do whatever you want with it?

Ms. Nancy Marrelli: You're breaking the law.

º (1650)

Hon. John Harvard: What does the law say?

Ms. Nancy Marrelli: The law says you can't reproduce. We can't even give somebody the copy that they will then either reproduce or not.

Hon. John Harvard: What do you mean, you can't give it to someone else?

Ms. Nancy Marrelli: If a researcher comes in and wants to use material, we can give them a photograph that has a huge black line on it that says “For research purposes only”. It defaces the photograph all the way across. It's the writing, the wording, that is in the law now.

Hon. John Harvard: Surely we can do something to help you.

Ms. Nancy Marrelli: Well, I hope so. That's why what we're saying is we don't have a fix for this. Our constituency is the photographers, the newspapers. We serve all of the Canadian public. The creators are the depositors in our institutions. We care about our researchers and our depositors both. We're just trying to do the job. We need to go back and do some policy work to try to resolve these--

Hon. John Harvard: Let me just raise this one point.

I can understand perhaps some sensitivity if you were to have one photo. You don't know who took it, but you have one photo and it's really your whole repository; that's your whole operation. Your enterprise is founded on this one photograph. But that's not the situation. That photograph you have may be one of thousands and thousands. So it's just one--

Ms. Nancy Marrelli: And it is. I have 60,000 photographs.

Hon. John Harvard: Okay, so it's one little piece. Why should we, as politicians or as a government, put your operation in jeopardy for the sake of one little piece? Do you follow me?

Ms. Nancy Marrelli: Yes. We're trying to do the job. What we're saying is that we need some help in coming up with a different way of dealing with these largely non-commercial photographs that are in our institutions.

Hon. John Harvard: Well, give us some ideas.

The Chair: It surprised me. One of the things I've been asking our researchers here is, why didn't this come up when we were looking at the Library and Archives of Canada Act, and what was subject to research and use at that time? That's just a question I'm asking.

Ms. Nancy Marrelli: That act was doing something very different.

The Chair: Ms. Karetak-Lindell.

Ms. Nancy Karetak-Lindell (Nunavut, Lib.): Thank you.

These are very interesting interventions.

I represent Nunavut, and I just want to point out that you're missing a sea when you go “sea to sea”; there's another sea in Canada.

We have situations in my riding in the north where we fall into many of the areas you're talking about, with the old pictures of the north. Some people have been quite upset to find that someone travelling to the communities will take a picture and the next thing we know it's a postcard. People are spending money to buy that postcard. The caption might be “unknown people in the north”. They say, “Well, there was a language barrier. I couldn't get the name of the person.” Those are situations we've seen; they've happened.

Again, when books are published about the far north by people who have worked in the north, whether as teachers, or as nurses in the 1950s or 1960s, people will find pictures of themselves in the books. Again, they feel their privacy is impacted. No one has made a point of trying to identify who they are.

I can tell you, in almost every picture you'll find of people in the far north, it says “unknown Inuit guides”. That's always, I guess, the way people have of not researching or using the resources today to find out who these people are, so that they don't have to deal with those people and identify who they are and get permission. It's an issue that's being dealt with, because it goes with intellectual property, we feel.

Then I have a question with school pictures. Today people are scanning pictures. What happens when people are scanning pictures with all the technology we have today and digitally spreading them all over on the Internet?

Again, to talk about wedding pictures, some people are hiring wedding consultants now to do the whole shebang. That means hiring the photographer, hiring caterers, everything. Is that now a commercial picture because a business hired the photographer, rather than a personal commission, as when I pay the photographer directly? Does that change the scenario?

Going back to what you said about newspapers—that a newspaper pays a photographer or a contractor so that they have ownership of that picture—does it work the same way then with the wedding consultant, because they've paid the photographer? Do they now have that picture? How does all that work?

º (1655)

Mr. Alex Cameron: I can probably answer that one. We haven't drafted any legislation that can answer those kinds of fine-grained questions. Our message is, you have to look at the purpose behind taking these photos. If it's the wedding purpose, the expectation is that it may not necessarily be the people in the photos who've paid to have them taken, but it's somebody close to them.

As between them and that person, the person doing the commissioning ought to have copyright, because as between them and the people who are hiring the consultant, let's say, you can expect they're going to ensure that they get the rights to use those photos and that neither the photographer nor the wedding consultant person has the right to use those photos on their own. It is a tricky problem, I think, but maybe not one that has come up that often.

Mr. André Cornellier: I want to repeat that, but we're not allowed to distribute photos on our own. We never have been and we never will be. Privacy laws are very strong, and they protect the people inside.

What Mr. Cameron is saying, that if we have the copyright we can distribute the photograph without permission, is outrageous to say, because it has never happened. I would like anybody here to show me a legal case where a photographer went against a person and the photographer won instead of the person. In every case in this country, the Privacy Act came into effect, and the person won in every province.

I've never seen a case.... That's not true. There was one case where a photographer and a person were litigating, and the photographer did win. In fact, the photographer won because he had a signed contract with the person giving him the rights to reproduce the work. That's the only time I've ever seen a photographer win.

So it's not true. Photographers don't go out and sell their pictures, just like that, of weddings, of babies, and of things like that. That does not exist.

To say we could do that.... The privacy law is there; it does exist, and it's not just a Quebec law. There's no way. This is a fantasy of people. It has never happened in 100 years.

Mr. Alex Cameron: Can I respond to that, please?

It's not a fantasy situation; it happens all the time. I bet there are people in this room who have had friends come to them saying, “You know, I had my photograph taken by the photographer, and lo and behold, it was appearing in their shop window a couple of years down the road.” I've had people tell me that very thing. The fact that those cases have not gone to court and been litigated in public doesn't mean it doesn't happen. It does happen.

Second, privacy law does not address this problem. The Supreme Court of Canada case is strictly on Quebec law. PIPEDA does not address this; there is an exception for artistic works. On top of all that, it doesn't address the problem of the fairness of the negotiation in the situation. The consumers aren't the experts here; they don't know. It's not for them to rely on the photographer's goodwill not to do these things. The photographer who has copyright technically can do it. That's what we have to work with.

The default should be that the consumer gets it, not only for those reasons but for the reason that they want to have the right to make affirmative uses of those works themselves. They have to have the copyright to be able to make copies to send to their friends, to put it on their family website. and for things like that. Privacy law will never address those things.

Mr. André Cornellier: In the case of the wedding planner, it would be the wedding planner who would get the copyright. How does it protect the wedding people?

The Chair: Just before we do the second round, I have a quick question about something that came up with the U.S. experience. I think it was raised by Mr. Cornellier. With the Associated Press, they have a different law there. The copyright is owned by the.... How do the newspapers deal with it in the United States? I seem to remember, wasn't there a famous case about a photograph and about whom it belonged to? Wasn't it the one that—

Mr. Ron Poling: That was The New York Times—

The Chair: The New York Times and JFK....

Mr. Ron Poling: That was who owned the original print. There was no dispute about who owned the copyright. It was about who owned the original print that there was a discussion. I don't think there was a solution in the court; I think there was an out-of-court settlement. It was about the original print that the photographer printed himself and handed in as part of his assignments. That original print sold for some amazing amount of money, and then there was a dispute over who owned the print as opposed to who owned the copyright. That was it.

I can't say exactly what the law is in the U.S. because I really don't 100% know. But I know AP does have agreements with the regular contractors they use on a regular basis. In fact it raised quite a stir, because it was a pretty stern contract.

CP also has a contract that we sign with our regular contractors. We chose to go the other route. What we do is assign a photographer; then we give the contract photographer, in recognition of the fact that they're only working for us occasionally, the rights to sell any of the outs on certain conditions and keep the proceeds. Or they can put them into our database, and we will sell them and give them 50% of the proceeds.

That is important, because one of the things we need to do, and the newspapers need to do, is protect this investment and the opportunity. When a newspaper, for example, goes after an exclusive and spends six or seven months chasing an exclusive, they create an environment where we know that if we send a photographer we will get this, and we will get that, and it's an important story.

They create that exclusive, and they want to keep it within their own family. They want that to be recognized as their hard work. It wasn't just the photographer's work; that's the whole point. It's the organization's work, and the photographer, whether it's a contractor or a staffer, has been brought in as part of the family that is producing this work.

What you don't want is that four days after the fact the photographer—in our case, our competitors are Reuters and Getty.... What we don't want is to put in the hard work we put in—maybe months of work, maybe tens of thousands of dollars—and then see the photographs on another website somewhere, on the Getty service competing with our own service. Obviously we can't have that, so we have a contract.

» (1700)

The Chair: All right. We'll go to the second round.

Mr. Cameron, you quoted the New Zealand and Australian models. When I come around to you, can tell me how the U.S. protects the consumers?

Mr. Schellenberger.

Mr. Gary Schellenberger: I'm going to be very short because Mr. Cameron did allude to the one thing I had written down here.

You see it lots of times if you are going to be married. I was only married once and it was so long ago that I can't remember what we did for the photography. I know, in my daughters' cases, when they would go to the photographer's studio, there was usually an open booklet that showed various photographs of previous weddings and the work that particular person had done. Again, if there were signed agreements, would those be used in that manner?

I know they weren't sold to the public necessarily, but it helped to sell the public on their particular work. Again, when you alluded to that, it did bother me a little bit. I can't remember. When you go to have photographs taken for a wedding, do you sign a release that the photographs can be used in that way?

Mr. André Cornellier: If I may answer, I am a photographer. I have a contract specifically asking a person for permission to use the photo in my portfolio to show my work. In 30 years, there was one person who said no. When they know that it's only for your portfolio to advertise your work, normally people will say yes. One person said no and I removed it from the portfolio.

I cannot say every photographer in Canada is doing that, but most of our members are doing so. We teach them to do it and we tell them to do it. Both associations go into schools and tell them to have a model release.

» (1705)

Mr. Alex Cameron: It's an important point. I don't dispute that's probably the case, but you cannot leave it to the customer to raise the issue. The photographer has to be obligated to put the contract in front of them to say yes. If you left it up to the customer, those uses would be made and there wouldn't be consent. The consumers are not going to raise those issues. The photographer actually has no incentive to raise it, because it may complicate the negotiations that are going on. It's quite an important point.

I'm not familiar with the U.S. law, but I can say there are six other countries, not only Australia and New Zealand, that have adopted provisions almost identical to what we're proposing.

I understand that our submission has now been translated. I don't know how you'd get a copy, but you should all get a copy. There's an appendix that sets out the relevant provisions from each one of those countries, New Zealand, Australia, Holland, England, Ireland, and Belgium, all of which have provisions that deal with these very issues.

Canada is not in some anomalous odd position by having subsection 13(2). If it was changed to exactly the opposite, if subsection 13(2) was repealed, we would definitely be an anomaly without the kind of consumer protection we're talking about.

Mr. André Cornellier: I think what Mr. Cameron has said is a very good point. In fact, Australia is giving the copyright to the person who commissions the work, if it's for public and domestic purposes. It's the only country doing that.

Mr. Cameron said the U.K. has the same kind of thing, but the U.K. does not have the same kind of thing. In the U.K., it's very specific that all copyright is to the photographer.

The only intervention in the law is:

85.—(1) A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have

(a) copies of the work issued to the public,

(b) the work exhibited or shown in public, or

The person doesn't have a copyright; he only has the right to say that he doesn't want the photograph to be published.

We're saying here that the privacy law in Canada, the tort law in Canada, and the Supreme Court of Canada have done that. They have the right. Every person in Canada has the right to say that they don't want their faces to be published in the public. It is very acceptable to us because that's what we're doing.

The U.K. example is a very good example of what can be done simply and easily to make sure people are not afraid of being used for no reason. But Mr. Cameron forgot to say that they don't give the copyright to the person; they still give the copyright to the photographer or the artist.

Mr. Alex Cameron: Except that Australia and New Zealand do get the copyright.

[Translation]

Ms. Christiane Gagnon: If photographers held copyright... If I commissioned photographs for my family and decided to make a poster for some association, would I have the duty or obligation to ask the photographer who took the photograph for permission, under the current legislation? If the legislation were amended, the person who commissioned the work would need authorization from the photographer, something that is at present not necessary, I believe.

Mr. André Cornellier: That is not entirely accurate. There are two options at present. Under the legislation, copyright belongs to the person who commissions the photo.

Ms. Christiane Gagnon: I see. So I would feel I had every right to take the photograph and do anything I liked with it.

Mr. André Cornellier: Absolutely, except where there is a contract between yourself and the photographer stating the opposite. For each job that I take on, and for each photograph that I take, I have the client sign a contract stating that the copyright belongs to me. In other words, I protect myself because the legislation does not protect me. I have to do that. If someone refuses to sign that contract, it is then up to me to decide whether I take on the job or not. I can say that I refuse to do the job because I will not hold the copyright for the photographs, or I will do the job anyway. In any case, the issue is up for negotiation.

What's difficult for us at present—and here is where I disagree with the Canadian Newspaper Association—is that the person who commissions the photograph holds the copyright by default, and we are obliged to negotiate. That is what I find wrong. A company holds my rights by default, and I need permission to negotiate them back.

So what we would like to see in the legislation is a provision to ensure copyright belongs to the photographer. Authors and writers hold copyright in this fashion. Newspapers hire many people to write columns, and hire freelancers as well. What do they do? They ask those people to sign a contract, and buy the copyright. They can always negotiate with me to buy the copyright. I would not refuse to sell copyright if the price were right—but at least, they would have to negotiate with me rather than my having to negotiate with them, as I have to right now. Right now, I have to negotiate with a large company.

For me, negotiating with a major corporation like CanWest can be very difficult when CanWest has 10 lawyers to deal with contracts. I would rather see the opposite situation—I would like the rights to belong to me and have CanWest offer me a contract and say they're ready to pay for whatever copyright they want. If the price is right, I would have no trouble selling copyrights.

In the case you mentioned, I would have copyright if I had a contract, and the rights to your image—to the release of your image, would belong to you. So we would both have to agree in order for the photo to be reproduced. There is a very specific objective here. Let's come back to the wedding photos. What CIPPIC proposes is for the people who commission the photos to have the right to use them and reproduce them whenever they wish. If we go ahead with this, this will change the way we operate. A photographer has two sources of revenue: first, there is a photo session when the photograph is made, and second, more revenue is generated when clients ask for reprints.

If we went with CIPPIC's proposal, we would sell one set of prints and then never sell reprints after that, since people could reproduce the prints as often as they wanted. For a wedding these days, we might sell 50, 100 or 150 reprints, depending on the number that family members, in-laws, and others want. So they buy reprints. As a result, the base price for taking the initial photos stays low, stays acceptable, and then we make a profit on the reprints we sell.

If you came to me for a passport photo, I don't think I could charge $2,000 for it. But according to CIPPIC's proposal, you would have the right to sell the photo once, and after that people could reproduce it at will. It's like telling the owners of Châtelaine that they can sell one magazine and one magazine only. People would have the right to take that magazine, scan it and post it on the Internet for everyone else. I don't think Châtelaine would survive for very long, and neither would photographers.

If all we could sell was that initial set of prints, we would have to charge $5,000 for the session, since that session would not generate any income thereafter. Photo prices would go through the roof. Many people don't have huge needs, but would end up paying for all potential needs up front. For example, you might not need many reprints. If that were the case, I would charge you $75 for the session and $10 for the prints. That is all you would be charged, because that is all you would need. If you needed another reprint a month later, I would sell you another at $10, but CIPPIC's proposal would mean that I could never sell you a second print, so I could never afford to charge you only $75 for the initial photo session.

» (1710)

Ms. Christiane Gagnon: In any case, from what I understand, under the current legislation I would not have the right to reproduce the photograph because I would have a contract with you. I rarely see professional photographers, but I gather I can't do what I want with the photos—I can't reproduce them. So even given the current relationship with photographers, we are quite limited at present. I cannot do what I want with the photos, even if I'm told I hold the copyright to them because I commissioned them from you.

Mr. André Cornellier: No. If I have no contract with you, the current legislation states that you hold the copyright and can then do anything you like with the photos.

Ms. Christiane Gagnon: Yes, but you can have a contract. Do photographers from whom photos are commissioned often use the option to have a contract signed? Do you know what percentage of photographers take that route?

Mr. André Cornellier: There are contracts, but there is a problem. We have noted that many photographers had contracts, but of those many did not fully understand the Copyright Act. Moreover, the contracts vary a great deal. Some of them are not worth the paper they are printed on, they are so badly formulated. So there is a great deal of confusion, and nobody really knows to whom the copyright belongs. A lawyer is needed to determine what the contract actually says, to see whether the copyright belongs to one person or another. This is because there are no standards; there is no standard contract, for example, that everyone can use. In our view, that is why it would be much simpler if copyright were held by the photographer. We would eliminate all these problems, and everybody would know how things stood.

The member was talking about e-mailing photographs. What photographers do for a wedding is produce a package. They talk to you before the wedding and ask you what your needs are, then give you a price. They might even give you CDs that you can e-mail to family and friends. They give you authorization to e-mail those images. They don't refuse permission, they give it. So we don't hold back on everything. We tend to negotiate with clients to give them as many options as possible, rather than fewer options.

» (1715)

[English]

Mrs. Anne Kothawala: I'm sorry, I haven't responded to any of those shots by Mr. Cornellier across the bows of newspapers, but I just want to clarify a few things.

First of all, with all due respect, what's important is that I don't think you can compare newspapers with magazines, because what we're talking about is late-breaking news, the stories where you need somebody there and you need to make a decision in five minutes in terms of who's going to go. Magazines are, for the most part, weekly or monthly; they are not daily newspapers, so there's a big difference there.

What we're talking about is copyright law not getting in the way of or being a stumbling block to getting out to Canadians the stories that are in the public interest. Maybe there's not a staff photographer available for a particular story and something happens, but you need to send somebody there, and maybe your staff photographers are tied up somewhere else. So then you go to your next level, to your contract photographer. Maybe it's a contract photographer who you've already dealt with and you have an existing contract. But in some cases, you don't want to have to have that negotiation; there's not enough time. It's not like a wedding that is taking place several months from the time you're sitting down with your photographer saying, “Okay, this is the nature of our contract for this personal event”.

So I think it's very different when you're looking at news photography, particularly that relating to breaking events happening quickly, and for which you need to make decisions quickly.

In summary, what I think needs to be looked at.... Perhaps there could be some wording and drafting in the legislation that would recognize...because what we're talking about is different uses and reuses of different types of photographs. We're talking about personal photographs; we're talking about commercial photographs; we're talking about photographs that are taken for journalistic purposes; and then finally, we're talking about the reuse of photographs and whether they're being reused for archival or historical or research purposes.

So I think we should look to, for example, the privacy legislation. Maybe it is too broad; you certainly couldn't include artistic, because.... But certainly in the privacy legislation, the whole journalistic exemption was based on some of the issues we're bringing forward today, because there was a recognition that privacy can't always trump the public interest in terms of a particular story getting out.

So that might be one option in terms of.... It just seems to me that we clearly can't put this one-size-fits-all.... Photographers who are taking commercial photographs and who want their photographs to be included in a photo bank should absolutely have that opportunity and should be able to make decent remuneration from it.

But we need to distinguish between different types of photographs and different types of uses.

The Chair: Ms. Marrelli.

Ms. Nancy Marrelli: I just want to disagree with Monsieur Cornellier, who has said several times that it is simpler to simply do this, that, or the other thing.

I think the problem is that you're talking, Monsieur Cornellier, about a very particular body of photographs. There are many different kinds of photographs out there in Canada, and I think what's simple in one situation is not always simple in another. I think we all sympathize with the problem you've brought up--certainly I do--but I can't say it's okay to sort of throw out the baby with the bathwater because you have a problem. We have to find a better fix to this problem.

Mr. Ron Poling: Perhaps I could just respond as well.

I would like to agree with that. Really, it isn't a question that's very simple. I understand as well that there is a desire to make good remuneration for work done, but I think there are other issues. It's very important that we don't get hampered, as Anne said, in terms of being able to cover the news in Canada. I think we have to be careful that we don't just take a quick, simple fix on this.

So I agree totally, it's a wide-ranging issue. Certainly on wedding photos and other personal photos, I wouldn't want to have to get permission from somebody to publish a picture that I had commissioned of my family, or to do whatever I felt was beneficial to my family.

» (1720)

[Translation]

La présidente: Mr. Castonguay, do you have any questions?

[English]

Mr. Jeannot Castonguay (Madawaska—Restigouche, Lib.): Well, I will need some time for this. There's quite a bit on my plate here. No question, this is not as simple as it might look when you just glance at it quickly.

Monsieur Cornellier, I respect what you're saying, and I understand that you have to make a living, like we all do. But I also consider that when your picture's in that frame, I think you have a right to say something about what's going to happen to that frame. If you're willing to send it to the archives, I believe that....

Again, I appreciate all of the witnesses being here today. I have to agree, it's a very complex issue, and we still have some thinking to do before we can deliver a bill on this.

The Chair: If I may, I have a few questions.

To anyone on the panel, should copyright deal with the issues of privacy, which are provincial? To my understanding, if I recall correctly from when the officials came before us, the problem in this area is a privacy issue, which is a provincial issue.

I know, Mr. Cameron, you talked about the U.K. example, but the U.K. is not a federal system. That's not the way the U.K. legislation works. So I think we have to be fair and not compare apples with oranges. Of the systems, then, the different countries that you've quoted here, which one has the same type of divisions and constitutional powers as the Canadian system and can really be used as a fair comparison? I know that Australia has a state system as well, but I don't know whether privacy falls within federal or state jurisdiction there. So help me there. That's one question I have.

Second, Ms. Marrelli, I understand your need for research, and I sort of echo what Mr. Harvard says, but again, I can't help but recall that when officials came before us to talk--and it won't be necessarily related to photographs--they spoke about these photographs you have and the photographs I take of my family. Did I intend those to be commercial, or was there an intent...? I mean, that's Mr. Cornellier's business. Was my intent to have a copyright?

I heard the officials from Industry Canada say we have chat rooms on the Internet, which never were intended to have a copyright. The answer to that, of course, is that by making those assumptions, we're taking away different forms of commercialization or future uses.

How do we know? How do we distinguish between creations of works of art? That's what we're protecting here in copyright. My taking a picture of my family, which I have no intention of ever.... So I'm struggling with that.

And then, Mrs. Kothawala, how do the Americans deal with this? They have late-breaking news as well, and the CNNs of this world are just as interested in getting that story and getting that exclusive out there, perhaps more so than broadcasters. How do they deal with their situation? If they're able to cope with where the copyright belongs to the photographer.... So perhaps you could help me there.

Those are my three questions, then, for Mr. Cameron, Ms. Marrelli, and Mrs. Kothawala.

Mr. Alex Cameron: With respect to the other jurisdictions, I can't say there's any other country in the unique position Canada is in. I can say that this is not a privacy issue; this is a copyright issue.

You'll recall the two expectations I said consumers have in these circumstances. One, which is a prime one, is that they get to make use of the photos they hire a photographer to take and they pay for. They think, I'm buying the photos, so I can copy them, I can give them to my friends, and I can e-mail them. That's not a privacy issue; that's about copyright. That's one.

The second is with respect to the rights to restrain future uses. Again, it's a copyright issue, although it looks like a privacy issue because it sort of smells like it. The Copyright Act provides rights to use artistic works. Our privacy legislation has expressly said, we're not dealing with uses of artistic works; that's something that's accepted. In the Copyright Act you're looking at providing in the statute what uses can be made of artistic works, which is exactly what we're talking about here. We're saying that in this particular type of case, this is the way you should craft that right to use, and it's subject to a limitation, which is the one we've proposed.

» (1725)

The Chair: I'm sure I'll have other lawyers who will argue the opposite.

Ms. Marrelli.

Ms. Nancy Marrelli: The act is very clear, that photographs, no matter whether you take them for your family or whatever, are covered by copyright, and that's part of the problem. In trying to deal with these very particular kinds of photographs, consider the mass of photographs that are taken in this country. I mean, is there anybody in this country over the age of four who hasn't taken a photograph? There are millions, many millions, but they're covered in the act. Your copyright is there whether you want it or not. We're bound by what the law says for all of those photographs.

I had somebody come into my archives yesterday morning. She had photographs that were taken in the 1950s and 1960s of a very famous Montreal restaurant, photographs people took of the staff on the graveyard shift of this 24-hour restaurant. My first question was, who took the photographs? She said, Nancy, how am I supposed to know? My father is in the photograph, so he didn't take the photograph; he died in 1972.

This restaurant is about to close. This is documentation of the social fabric of my city, where I live. I'm not going to be able to make that photograph accessible because I know it was taken after 1948. It's silly, but there it is.

The Chair: Mrs. Kothawala.

Mrs. Anne Kothawala: If I can, I'll speak to the privacy issue. I think where I see the relevance in a sense is that we do have a federal privacy law--a lot of the provinces are in the process of updating their own privacy laws--that very much acknowledges the fact that journalistic work is different. That's where I see the parallel. I don't think we're dealing with the same issues in terms of copyright and privacy, but the fact that journalistic work was dealt with in a different fashion, I think, is relevant to this copyright discussion. That's the first answer.

In terms of how AP deals with...I must say I'm not an expert. That was just raised by Monsieur Cornellier. I don't know if he's an expert on how AP contracts with their photographers or doesn't. I don't think we can make assumptions that it's working fine in the U.S. when none of us is completely familiar with the way the U.S. law is crafted. I certainly am not an expert on it. I can only speak to what's happening in a Canadian context in the way our newspapers and CP deal with our photographers.

The Chair: I understand your comments. However, when the question of other jurisdictions is raised, it's quite notable that the U.S. experience is absent from the discussion at this table. That's why I think it is appropriate to raise it, and perhaps it's something our researchers will look into.

Mr. Cornellier.

Mr. André Cornellier: In fact, copyright in the U.S. is very clear: all the rights belong to the photographer and there are no exceptions, none whatever. It is only if you're a staff person, then the copyright belongs to your employer, as it is here. We don't discuss that; we have no problem with that issue and we don't want to change it.

Also, in the U.S., privacy law is state law. Every state has a privacy law, exactly like we do in Canada. It's not a federal law; it's a state law. So there are 50 privacy acts in the U.S. and they deal very well with it.

Obviously, some are stronger than others. We can talk about California, which probably has the strictest one in the whole world. On top of the privacy act they also have a publicity act, which means that if you're an actor, you have the right for your image not to be disseminated in a film without your consent; the producer has to go to you. So they have another level added to the privacy act in California, a level most other states don't have. They don't feel they need that because they don't have so many stars in Oregon or in Ohio.

So basically, I think the U.S. example comes very, very close to home here. The copyright law doesn't prevent the photographer...it's the Privacy Act. We don't see litigation going on, and there's no real problem with it.

» (1730)

The Chair: Thank you.

I think it is important that we find a Canadian solution, definitely. I just always try to share different practices. Quite obviously, the U.S. experience is missing, and it's not at all that I think we should follow the U.S. method.

I hear the bells ringing, so thank you all very much for coming.

Ms. Marrelli, if you and your experts come up with something on how we can deal with this problem, please feel free--as all of you should--to forward additional information to us.

Thank you all for coming. The meeting is adjourned.