Canadian copyright law joins the 20th century

Canada recently changed its copyright law to align more closely with the rules of the World Intellectual Property Organization (or WIPO.) It is no surprise that most of the recent changes in copyright law have been driven by the explosion in digital technology and the internet. I came away a bit surprised, however, after I learned about the changes to the Canadian law.

One big surprise is how far ahead of the U.S. much of the rest of the globe, particularly the European Union and other nations like Japan and Australia, have been as they keep moving copyright law forward to:

…create strong criminal penalties for copyright piracy. France, New Zealand, UK and South Korea enacted graduated response legislation to promote the legal purchase of creative products and services and to discourage online file sharing.

….publish a proposed directive on collective management of copyright and related rights in music. …. adopted a directive on orphan works. …. are considering laws to require search engines like Google to compensate publishers for caching, indexing and making headlines and snippets of news articles.

When the Canadians passed their recent Copyright Modernization Act one commentator wrote:

…depending on the issue and country or territory, we find ourselves at par with, in front of, or often behind, our trading partners in dealing with the challenges posed by digital technologies.

… unlike the US, Canada did not enact a formal notice and takedown regime.

…law contains no express provisions entitling rights holders to obtain orders blocking foreign pirate web sites like the Pirate Bay.

….in the U.S. leading ISPs and creative industries have cooperated to develop a voluntary notice regime that unlike the bare minimum prescription in the Canadian law, contains escalating provisions intended to educate and curb file sharing by repeat infringers. Canada did not adopt a form of graduated response that has the proven effect of increasing legitimate sales of cultural products and services.

It was interesting to note how the U.S. is still leading much of the developments in the world of copyright law. As the world’s leader in generating intellectual property I would expect that. On the other hand, with polarization of so much of American politics and the accompanying gridlock, such leadership could just as easily not come from this country.

The other big surprise I encountered in my annual “look into the status of copyright law” was to learn what rights the new Canadian law just gave to Canada’s photographers.

They finally, officially own the copyright their photographs even if they were produced on assignment. As I understand it, under the previous Canadian copyright law, all other artists owned the copyrights to their work. But the law singled out photography as being different. In photography’s case, the ownership of the copyright went to the individuals or organization that assigned the photographer to create the work. To own the copyright to their work, Canadian photographers were previously required to have that transferred BACK to themselves explicitly in a written/signed contract.

Amazingly, Canadian photographers are the last in the industrialized world to have all legal rights to their photographs! The change in the law was 20 years in the making and was one stated goal of the new Canadian copyright law to “…give photographers the same rights as other creators”.

American law, while hardly in the forefront, has been ahead of the old Canadian law for a while. In the system in the United States, the default assumption is that copyright belongs to the creator (the photographer) and the party assigning the work can only secure that copyright through a written/signed contract.

After reading about the belated change in the Canadian law and seeing how other nations approach some of the same issues, I am still a supporter of conventional copyright laws. I am aware that makes me “old school.” But like in many situations where one party in a disagreement is described as “old school,” that party has history behind them (and they may in fact be right.)

Though many people, including some photographers advocate strategies like “copy left “(vs copyright) or creative commons, I am not among them. I would love to see this country move toward the kind of serious enforcement mechanisms created by the European Union and Japan. I worry that the opposite will happen and the big corporations that make the money off of the content will water down American copyright law.

I have blogged elsewhere sharing my thoughts on the changing nature of copyright law. The fact that Canadian photographers just won the rights to full ownership of their work reminds me where I stand on changes in the copyright law. For me, the bottom line is simply this: Until the advocates of any new copyright strategy can show me how people, other than lawyers, agents, academics and other intermediaries are making money, and by that I mean the photographers, I would argue to stick with what has worked for me.

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