Canadian Copyright Bill C-11: Photographs

The following information is not intended to, nor is it to be regarded as a legal opinion or any other form of professional opinion, or point of view for any person, or organization upon which to act. The information is intended to provide only an interpretation of the revisions to the Canadian Copyright Act as it pertains to Photographers and their photographic images. For all clarification of the Act, we recommend consulting a lawyer or referring to the Canadian Copyright Act located on the Government of Canada website.

Effective November 7, 2012, Canadian Photographers became the first owner and author of copyright works they produce, be it an artistic, personal, or the result of a commissioned assignment. Photographers now automatically own the copyright and moral rights of their work.

This ruling applies to all new photos taken after the revised bill became law and not to pictures produced before.

Bill C-11 does, however, provide for exceptions. Certain people and institutions can use photographs protected by copyright without the permission of the photographer, specifically:

1. photographs commissioned for private/non-commercial purposes such as wedding photos, may still be reproduced by their commissioners (client) without the photographer's permission;
2. photographs not protected by technical protection measures (TPMs) may be downloaded from the Internet without the photographer's permission and;
3. general exemptions for reproductions by educational institutions apply to photographs as well as other works and copyright subject matter.

Now that photographers are authors, they do benefit from the moral rights provisions as outlined in the Copyright Act prior to this most recent amendment.

Moral rights consist of the right of "paternity" (the author must be credited); and the right of "integrity" (the author can prevent others from distorting or mutilating the work). Although moral rights always remain with the author and cannot be assigned, they can be waived.

It is recommended that both Commissioners and Photographers agree upon a contract that specifies various business terms such as the use and reproduction of images, licenses sold, payment terms, etc. Regardless, it is always important to acknowledge and specify that the photographer is the author and first owner of the copyright of the images produced; unless such rights have been waived or reassigned in a contract. It is equally important to remember that a quote or an invoice is not a contract, even if it contains some elements of one.