Bill C-11 Committee on March 13th, 2012

[Charlie Angus, NDP, Timmins—James Bay, ON]

We will be moving our motion.

[The Chair, NDP, Glenn Thibeault]

Are you're moving amendment NDP–13?

[Charlie Angus, NDP, Timmins—James Bay, ON]

I'll pass it over to Mr. Benskin and Mr. Nantel.

[Pierre Nantel, NDP, Longueuil—Pierre-Boucher, QC]

Thank you, Mr. Chair.

Our goal with this bill has always been to reflect the reality as closely as possible. And obviously, when we talk about photographs, clear factors come into play in terms of the distinction between commercial and private use.

The New Democratic Party would like clause 38 of Bill C-11 amended in order to clarify the term “personal purposes” by replacing it with the term “private or non-commercial purposes”. The amendment is a technical one intended solely to prevent future legal disputes.

The term “personal purposes” makes photographers quite uneasy, as the committee has clearly seen. Even though the bill does indeed clearly establish the notion of photographic property, the term “personal purposes” is much more open to interpretation than the term we are proposing, “private or non-commercial purposes”. Replacing the term in question would more clearly define the right to use photographs and copies of them without infringing on copyright. The reason is simple: the definition of “private or non-commercial purposes” allows people to use photographs as they please, so long as that use does not adversely affect the copyright owner's ability to market or sell the photographs in question.

Clause 38 of the bill pertains first and foremost to photographs or portraits commissioned for personal use. So it is appropriate that the use of the work in question pertain strictly to the person who decided to obtain it, as long as that person does not market the photograph for personal gain. This amendment would therefore protect the creator, as we would like to see happen in real life, while allowing the user to derive full enjoyment from the photograph on a personal, not commercial, level.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Nantel.

Mr. Benskin.

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Ultimately the photographers community is very pleased that they've finally gotten inclusion in the Copyright Act. As my colleague said, they're just looking for clarification to make sure that the wording is consistent with the rest of the act.

They don't have any issue with people taking a photograph and putting it up on Facebook for their own personal use, but they want to be able to sell copies of a photograph that they've taken for somebody. For example, in the case where a person is going to be promoted and the company asks them if they have a photograph, normally the company would go to the photographer to ask for a photograph or to ask them to make a photograph. The photographer wants to be able to maintain their right and their ability to sell any photographs that are made.

Again, this is a simple fix to the wording, in line with what's used in the rest of the act, just to clarify the difference between personal use and private use.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Benskin.

Mr. Lake.

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I'd actually like to go to the officials on this one, just to give some clarification.

Could you speak first of all to the purpose of the clause within the bill, and then to how this amendment would affect that clause?

[Robert DuPelle]

Well, in an earlier clause the government proposed an amendment in relation to the rules currently in place for commissioned photographs. Under the current act, there's special treatment with respect to commissioned photographs in terms of who is the first owner of copyright. There was an amendment in this bill to remove that special treatment in relation to commissioned photographs. In this clause, the bill includes an exception for the purposes of individuals who commission photographs, so that they will be able to use these photographs to a certain extent.

There are two descriptors used in relation to the use of the photograph and the reasons for which the photograph was commissioned. With respect to the use, the terms “private” and “non-commercial” purposes are used to describe the uses that are permitted. In relation to the purpose for which the photograph was commissioned, the descriptor “personal” purposes is described.

Those are the types of commissioned photographs that would be, in a sense, eligible for this exception. Because there are two different descriptors, two unique descriptors are used to describe those things.

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. DuPelle.

Back to you, Mr. Lake. Anything further?

[Mike Lake, Conservative, Edmonton—Mill Woods—Beaumont, AB]

I'm good.

[The Chair, NDP, Glenn Thibeault]

Is there any further discussion?

Mr. Benskin.

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

I would like to ask if the meaning of "personal purpose" is clear. Where else does it appear in the bill?

[Robert DuPelle]

Unfortunately, I don't have that information handy at the moment, in terms of tracking where it may or may not be used elsewhere. I can say that private or non-commercial is certainly different from personal purposes, and to change personal purposes to private or non-commercial would change the meaning of the provision.

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Can you expand on that, please?

[Robert DuPelle]

Private or non-commercial suggests more than one possible purpose for the use. It could be private, or it could be non-commercial.

The intent behind having a photograph commissioned is simply personal. It would have to be a photograph that was commissioned for personal purposes. It doesn't contemplate the notion of non-commercial.

[Tyrone Benskin, NDP, Jeanne-Le Ber, QC]

Thank you.

[The Chair, NDP, Glenn Thibeault]

Thank you, Monsieur DuPelle and Mr. Benskin.

(Amendment negatived)

Mr. Regan.

[Geoff Regan, Liberal, Halifax West, NS]

I seek consent to move the following motion. It was originally to replace lines 29 and 30, as the clerk and I discussed.

[The Chair, NDP, Glenn Thibeault]

You're good to go now, Mr. Regan.

[Geoff Regan, Liberal, Halifax West, NS]

That's right. I couldn't have changed 29 if theirs had passed.

The motion is that Bill C-11 in clause 38 be amended by replacing lines 29 and 30 on page 38 with the following:

personal purposes and made for valuable consideration, if that use of the photograph or portrait does not have a substantial adverse effect, financial or otherwise, on the exploitation or potential exploitation of the photograph or portrait or copy of them, or an existing or potential market for it, unless the individual and the

[The Chair, NDP, Glenn Thibeault]

Thank you, Mr. Regan.

Does Mr. Regan have the consent of the committee to move this amendment? Yes.

Mr. Regan, you have five minutes now if you'd like to talk a little more about your amendment.

[Geoff Regan, Liberal, Halifax West, NS]

This again is a concern of photographers, in terms of clarity about the use of photographs they have sold. We have heard from photographers that someone might get a photograph for a personal purpose but end up distributing it very widely, perhaps not for profit, so it would be non-commercial, yet it would still have an effect on their enjoyment of the photograph or their ability to reproduce it and make a dollar.

That's what they're looking for in this. I'd like to hear from the officials what they feel this would do and what problems they see with it. Apparently they don't favour it.

[The Chair, NDP, Glenn Thibeault]

So have you asked that question of the officials, Mr. Regan?

[Geoff Regan, Liberal, Halifax West, NS]

That's what I'm doing now.