(2) Where, in the case of an engraving, photograph or portrait, the plate or other original was ordered by some other person and was made for valuable consideration, and the consideration was paid, in pursuance of that order, in the absence of any agreement to the contrary, the person by whom the plate or other original was ordered shall be the first owner of the copyright.

and

Author of photograph

(2) The person who

    (a) was the owner of the initial negative or other plate at the time when that negative or other plate was made, or

    (b) was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate,

is deemed to be the author of the photograph and, where that owner is a body corporate, the body corporate is deemed for the purposes of this Act to be ordinarily resident in a treaty country if it has established a place of business therein.

The current Copyright Act:

See Copyright Act (R.S.C., 1985, c. C-42) Ownership of Copyright 13.(1)

13. (1) Subject to this Act, the author of a work shall be the first owner of the copyright therein.

Note the following from Copyright Act (R.S.C., 1985, c. C-42) Miscellaneous - Permitted acts

32.2 (1) It is not an infringement of copyright

. . .

    (f) for an individual to use for private or non-commercial purposes, or permit the use of for those purposes, a photograph or portrait that was commissioned by the individual for personal purposes and made for valuable consideration, unless the individual and the owner of the copyright in the photograph or portrait have agreed otherwise.

Authorship of a photograph is now not defined in the Copyright Act. A case from 1997 shows how the author of a photograph might be defined. The following is from Ateliers Tango Argentin Inc. et al. v. Festival d'Espagne et d'Amerique Latine Inc. et al. (1997) 84 C.P.R. (3d) p. 58. (this case is not available online)

While the photographer was not the person who operated the camera, the person who took the photo was acting under the photographer's direction. The author of a work is the person who conceives, expresses ideas, composes and creates the work as a result of his labour, qualities and personal efforts. There was no doubt that the photographer was the true creator of the work and the owner of the copyright therein.

Fair Dealing in Canada now includes parody and satire.

29. Fair dealing for the purpose of research, private study, education, parody or satire does not infringe copyright.

Here are some cases involving parody from the U.S. courts. See LUTHER R. CAMPBELL AKA LUKE SKYWALKER, ET AL., PETITIONERS v. ACUFF-ROSE MUSIC, INC. and ROGERS v. KOONS, 960 F.2d 301 (2nd Cir. 1992).

Rights management information protection is now part of the Copyright Act.

41.22 (1) No person shall knowingly remove or alter any rights management information in electronic form without the consent of the owner of the copyright in the work, the performer’s performance or the sound recording, if the person knows or should have known that the removal or alteration will facilitate or conceal any infringement of the owner’s copyright or adversely affect the owner’s right to remuneration under section 19

(2) The owner of the copyright in a work, a performer’s performance fixed in a sound recording or a sound recording is, subject to this Act, entitled to all remedies — by way of injunction, damages, accounts, delivery up and otherwise — that are or may be conferred by law for the infringement of copyright against a person who contravenes subsection (1).

For more about Rights Management Information (RMI) protection see The Protection of Rights Management Information: Modernization or Cup Half Full? by Mark Perry and The protection of rights management information by Industry Canada.

Keep in mind that copyright and moral rights infringement can be still done in small claims court. The specific part of the Copyright Act allowing this was repealed (37. [Repealed, 2012, c. 20, s. 45]) then added to a later section (Concurrent jurisdiction of Federal Court 41.24). See Dolmage v. Erskine, 2003 CanLII 8350 (ON SC)

The Small Claims Court in Ontario clearly has jurisdiction to hear a claim for damages for infringement of copyright or moral rights.

Section 37 of the Act reads "[t]he Federal Court has concurrent jurisdiction with provincial courts to hear and determine all proceedings.....for the enforcement of a provision of this Act or of the civil remedies provided by this Act."

An example of a small claims court copyright case is Don Hammond Photography Ltd. v. The Consignment Studio Inc., 2008 ABPC 9 (CanLII)


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To clarify. In Canada there is no such thing as "a work made for hire." A work made for hire is a U.S. legal term defined in Title 17, Chapter 2, § 201 (b)

(b) Works Made for Hire. — In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

Note that the employer becomes the author in a work made for hire situation.

In Canada, the employer is only the first owner of the copyright; the employer is not the author of a work. See Copyright Act (R.S.C., 1985, c. C-42) Ownership of Copyright 13.(3)

Work made in the course of employment

(3) Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright, but where the work is an article or other contribution to a newspaper, magazine or similar periodical, there shall, in the absence of any agreement to the contrary, be deemed to be reserved to the author a right to restrain the publication of the work, otherwise than as part of a newspaper, magazine or similar periodical.

The author of a work retains his or her Moral Rights in a work. Moral Rights in Canada are strong when compared with Moral Rights in the U.S. Canadian law. Copyright Act (R.S.C., 1985, c. C-42) Moral Rights 14.1

Moral rights

    14.1 (1) The author of a work has, subject to section 28.2, the right to the integrity of the work and, in connection with an act mentioned in section 3, the right, where reasonable in the circumstances, to be associated with the work as its author by name or under a pseudonym and the right to remain anonymous.

    Marginal note:No assignment of moral rights

    (2) Moral rights may not be assigned but may be waived in whole or in part.

    Marginal note:No waiver by assignment

    (3) An assignment of copyright in a work does not by that act alone constitute a waiver of any moral rights.

In the U.S. moral rights in a photograph are limited to those which qualify as a "work of visual art"

A “work of visual art” is—

(1) a painting, drawing, print or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the case of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered by the author and bear the signature or other identifying mark of the author; or

(2) a still photographic image produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author.

A work of visual art does not include—

(A)(i) any poster, map, globe, chart, technical drawing, diagram, model, applied art, motion picture or other audiovisual work, book, magazine, newspaper, periodical, data base, electronic information service, electronic publication, or similar publication;

(ii) any merchandising item or advertising, promotional, descriptive, covering, or packaging material or container;

(iii) any portion or part of any item described in clause (i) or (ii);

(B) any work made for hire; or

(C) any work not subject to copyright protection under this title

See § 106A . Rights of certain authors to attribution and integrity for Moral Rights in the U.S. Note that under (B) above, a work made for hire is not a work of visual art and there are no Moral Rights in that work.

Herman Surkis wrote:
Seems nobody is doing it so:

THANK YOU!

Hi Herman. Thanks.
I thought it would be useful to have a more detailed post of the changes so that Canadian photographers could refer to it. Canadians have waited a long time for these changes. Canadian photographers should understand that they have strong Moral Rights in their works. Moral Rights is something that most U.S. photographers don't have; there are strict guidelines in § 106A of Title 17 Visual Artists Rights Act of 1990 (VARA) regarding which photographs qualify for protection.