[BCMA] an archives question - Canadian copyright disagreement

Wed Feb 10 15:58:59 PST 2010

I was told in copyright training a few years ago that the opposite of
what Jim is saying regarding photos. (This was almost certainly at a CMA
or BCMA Conference using a very knowledgeable speaker on copyright in
Canada)  See my earlier posting. 

Many people fall into the trap of assuming that US and Canadian
copyright laws are the same. Many references in museums/archives and on
the Internet will be about US copyright law and in typical US fashion
they do not say that they are talking about US law, they assume that
everyone knows. 

As I recall, we were told that in Canada it is automatic that whoever
paid the photographer to take the photo owns the copyright, NOT the
photographer. The instructor told us that most photographers do not know
this little oddity of Canadian copyright law, so they stamp their photos
as being under their copyright, but they have no legal right to do so.
Then we the customers are told by the photographers (who believe it
themselves) that THEY own the copyright and as we are not copyright
experts, we the people go along with it. 

Remember too that Canadian copyright is different from US copyright. 

Barbara responded with a valuable link. Here is a quote from that web
reference Canadian Intellectual Property Office:

Ownership

Generally, if you are the creator of the work, you own the copyright.
However, if you create a work in the course of employment, the copyright
belongs to your employer unless there is an agreement to the contrary.
Similarly, if a person commissions a photograph, portrait, engraving, or
print, the person ordering the work for valuable consideration is the
first owner of copyright unless there is an agreement to the contrary.
The consideration must actually be paid for the copyright to belong to
the person commissioning the photograph, portrait, engraving, or print.
Also, you may legally transfer your rights to someone else, in which
case, that person owns the copyright.

http://www.cipo.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr00
506.html#no10 

An interesting point too is that if you hire a photographer for your
wedding for example, then sign a contract with them, and IF that
contracts states that copyright then belongs to the photographer ... but
then without having the contract in hand, how is a museum or archives to
know if it was signed over? Catch-22. (another old movie reference)

No disrespect to my colleague Jim ... but obviously we need a legal
eagle Canadian copyright expert to give us chapter and verse, especially
on such a complex topic. I shall look for my notes from the copyright
training, but as I have moved several times since then, they are buried
very deeply. I am thankful that this is not an episode of "Paperchase"
with John Houseman as Professor Kingsfield. For those who remember the
old TV series will know what I am talking about. For those who do not
remember ...well, have a look on YouTube
http://www.youtube.com/watch?v=cZJEhlIefxA  Pretend that you are the new
student name Hart, then sit back, watch and relax!   

;-)

"Facts, Mr. Hart, facts. The law deals with facts, not opinions." [As I
remember him saying it]

Then of course there are Kingsfield's opening remarks "The study of law
is something new and unfamiliar to most of you, unlike any other
schooling you have ever known before. You teach yourselves the law, but
I train your minds. You come in here with a skull full of mush and, if
you survive, you'll leave thinking like a lawyer."

Maybe that is why many of us in the museum field went in for the Arts at
university. Maybe it was because we did not want to be rich, if it meant
thinking like lawyers.

;-) 

COLIN

Colin MacGregor Stevens,

Manager,

New Westminster Museum and Archives,

302 Royal Avenue,

New Westminster, BC, 

V3L 1H7

Phone Office:    604-527-4639

Work Cellular : 604-830-6965

Fax:                  604-527-4641

E-mail: cstevens at newwestcity.ca <mailto:cstevens at newwestcity.ca>  

Web Site: www.newwestminster.ca 

-----Original Message-----
From: Moderated BCMA subscriber listserv. [mailto:bcma at lists.vvv.com] 
Sent: Tuesday, February 09, 2010 4:15 PM
To: bcma at lists.vvv.com
Subject: Re: [BCMA] an archives question

Unless the purchaser specifically purchased copyright as well, the
photographer has the rights.  That is why some photographers actually
stamp the back of the photograph with their copyright stamp.  If the
purchaser wanted another print made, they had to go back to the
photographer.

In your case, since the donor assigned copyright to the archives, you've
got it not the purchaser.

In another case where the photographer was employed to take pictures
such as a newspaper, you have to know the employment agreement as to who
owns the copyright, the photographer or the newspaper.

Jim Millar

Manager/Curator

Port Moody Station Museum

	----- Original Message ----- 

	From: Moderated BCMA subscriber listserv.
<mailto:bcma at lists.vvv.com>  

	To: bcma at lists.vvv.com 

	Sent: Tuesday, February 09, 2010 1:35 PM

	Subject: [BCMA] an archives question

	Hello all:

	A local town photographer donated over 50 years of photographs
and negatives to our archives. Copyright of the collection was assigned
to the archives at the time of donation. But a question has arisen. Some
of the photographs are portraits of local residents. These are people
who paid to have their photographs taken. In these cases who owns the
rights to the photographs? Is it the archives, photographer or
purchaser? 

	Thanks for your thoughts in advance.

	Ron Denman

	Director

	Chilliwack Museum and Archives

	45820 Spadina Avenue

	Chilliwack, BC V2P 1T3

	Phone: 604-795-5210; Fax: 604-795-5291

	www.chilliwack.museum.bc.ca
<http://www.chilliwack.museum.bc.ca/> 

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