Following three previous attempts to amend the Copyright
Act, Bill C-11 came into force on November 7, 2012. The
legislative changes to Canadian copyright law ushered in by Bill
C-11 are far ranging (for a summary of the changes, see:
http://bit.ly/SqR97L). What follows is a summary of the most
important changes in terms of their potential impact on the
advertising and marketing industry.
Ownership of Copyright in Commissioned Photographs
Previously, if a photographer was commissioned to take
photographs, the person or entity that commissioned the photographs
was the owner of copyright in the photographs. Bill C-11 has
changed this arrangement so that now the photographer will own the
copyright in the photographs, absent any contractual provision that
specifies otherwise. Consequently, contracts for a
photographer's services should be reviewed to ensure they
contain provisions indicating both that the photographer assigns
copyright ownership in the photographs that will be created and
undertakes to execute further agreements to give effect, confirm
and evidence such assignment.
New Categories of Fair Dealing: Parody and Satire
Previously, the categories of fair dealing were limited to
private study, research, criticism and news reporting. Bill C-11
has expanded the categories of fair dealing to include parody,
satire and education. Although education will be of limited
application in the advertising and marketing industry, parody and
satire can be used in innumerable ways in the course of an
advertising campaign. However, dealing with works for the purpose
of parody or satire must still be "fair" in all the
circumstance. Further, it is important to keep in mind that the
categories of fair dealing permit a person to use a work without
infringing copyright. Therefore, despite falling within the ambit
of a fair dealing category, a person may still infringe the moral
rights in a work where the work is distorted, mutilated or
otherwise modified to the prejudice of the honour or reputation of
the creator (note: this is not an exhaustive list of the ways moral
rights may be infringed).
The "Mash-up" Exception
Bill C-11 also creates a new exception whereby individuals will
be permitted to use existing copyrighted works in the creation of
new user-generated content (UGC). However, one of the main
conditions that must be satisfied in order to avail oneself of the
exception is that the creation of the new UGC must be done solely
for non-commercial purposes. As such, this exception will likely
have limited application to the advertising and marketing
Previously, statutory damages ranged from $500 up to a maximum
of $20,000 per work infringed, regardless of the commercial versus
non-commercial purpose of the infringement. Bill C-11 has modified
the amount of statutory damages available to the copyright owner in
that the previous range of statutory damages only applies where the
infringement was for commercial purposes. Bill C-11 limits the
range of statutory damages in cases of infringement for
non-commercial purposes to between $100 and $5,000 for all
infringements in a single proceeding regardless of the number of
different works infringed.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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