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Riddle me copyright

|Written By Sarah Dale-Harris
Riddle me copyright

With all the discussion surrounding the proposed amendments to the Canadian Copyright Act, you just know I couldn’t resist throwing in my own two cents. 

While I agree that there appear to be some significant issues that could arise as a result of the proposed amendments in bill C-32 — relating to privacy, digital locks, ISPs, user-generated content, etc. — I can also appreciate that trying to keep up with the advances we have seen in technology is a nearly impossible task within the context of a statutory framework such as the Copyright Act.

Remember the “living tree” analogy from law school? As far as I can tell, whether or not bill C-32 comes into force as is, which isn’t likely given its predecessors, the courts are sure to be heavily relied upon to sort out what it all actually means.

To provide a little context and an example of one of the proposed reforms, did you know under the proposed amendments you’ll need to ensure you have a written contract with your wedding, or any other, photographer otherwise technically, legally, he or she will hold the copyright in the photographs you paid him or her to take?

Title in copyright, currently and under bill C-32, can be transferred (assigned) only if it is done in writing. While the individuals in the wedding photo example may have personality rights enforceable against the photographer were he or she to try and commercialize the photographs, in the absence of a written instrument that explicitly transfers copyright to you, who paid for them to be taken, ownership of copyright in the photographs remains with the photographer.

And what of the “moral rights” in those photographs? Presumably there will also have to be an explicit waiver of those rights by the photographer, otherwise putting horns, a trident, and tail on your now ex’s photograph and posting it on the Internet could technically be an infringement of the photographer’s moral rights. A slightly mad illustration perhaps, but you can see where this is going. Think: Canada geese in the Eaton Centre.

The statute, and the proposed amendments to it, may be all well and good (subject to certain hotly debated exceptions); however, the reality is, who can actually afford to assert the law and benefit from the remedies provided under it? In principle, anyone. In reality, only those who either have the sophistication to be able to represent themselves or those who have the means to pay a lawyer to assert or enforce their rights for them.

Practically speaking, is the guy who sent a demo of a proposed video game off to a company and had his ideas blatantly ripped off going to be able to assert his rights against a company with far deeper pockets than him? Probably not.

Is he going to have to resort to the court of public opinion to show the world how this company does business? And if he does, will anyone actually care? Probably few — though you never know these days with access to social media being what it is.

Will he ever (particularly given his chances at present) get into an already fiercely competitive market by way of a big player if he goes the route of publicly chastising the company? If anyone actually sees, hears or reads about it, not likely if he is perceived as a troublemaker.

This is a real example. Even if he could afford to do something about it, he doesn’t want to because he has more great ideas to share and hopefully capitalize on. Of course this time, he is going to have a lawyer prepare the agreements to protect him — assuming the company will sign them. Oh yes, and that he can afford to enforce them if things don’t work out next time.

So where does this leave the individual who does not have the benefit of a union, endless financial resources, or lawyer friends who are willing to litigate for free? Sure she or he might have the rights, but what good are they if they can’t be meaningfully enforced? That said, with the success i4i Inc. has had enforcing its patent rights against Microsoft Corp. by way of its access to a patent litigation fund, maybe a copyright (or more general intellectual property) litigation fund will spring up some day?

Bill C-32’s progress is sure to be of interest to many, academic or otherwise; however, the moral of this story is that unless you are some kind of luddite who uses two tins and a string as a means of communication, there isn’t much chance that bill C-32 won’t affect you.

However controversial he or his site might be, Michael Geist’s blog is a great resource. If you are interested in wading through the proposed amendments to the Copyright Act, you can find a redlined version of the statute on his web site for ease of reference.

Sarah Dale-Harris is a lawyer in the intellectual property, technology & interactive entertainment groups at Davis LLP. Sarah can be reached at 416-365-3522 or at sdale-harris@davis.ca. She sends out a “very special thanks to Sharon Griffin for brainstorming with me on this one.”

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