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Bruce locked the topic of Crown Copyright, but the second last post therein always bothered me:
http://army.ca/forums/threads/21958/post-118073.html#msg118073
Being â Å“on dutyâ ? is not defined in the Copyright Act. Based on the analysis linked above, Crown ownership of copyright would subsist in every photograph taken while a ship is at sea or a unit is deployed in the field. I agree with the intent of the post, but I must disagree on the theory posited.
Ownership of copyright is said to be an enforceable right created by statute in Canada, and hence a legal fiction, dear Anne notwithstanding. It is ownership of the copyright from which the reservation of economic rights flow. What then might be said of the determination of rights as a matter of statutory interpretation where the work is â Å“madeâ ? in the course of employment when compared to a work that is â Å“madeâ ? incidental to employment while â Å“on dutyâ ??
I have always found Parliament's choice of words in 13 (3) of the Act interesting. Here is a link to that provision: http://www.canlii.org/ca/sta/c-42/sec13.html
Arguably, â Å“madeâ ? suggests an original work manufactured with a specific purpose in mind: [see Hawley v. the Queen]. If a work is â Å“madeâ ? incidental to employment, does that satisfy the criteria of having been â Å“made' in the â Å“course of employment.â ? Does employment in the case of copyright import or conflcit with Montreal Locomotive at the time the work was â Å“madeâ ?? There is no evidence to suggest that the CF is exempt from the Copyright Act altogether due to the nature of the works and the information conveyed by the works. Othe Acts of parliament might apply to the information, but not to the ownership of the copyright and the associted rights to economically exploit them.
I think a better word might be â Å“createdâ ?. The idea that Parliament intended a water tight exemption to 13(1) with section 13(3) with the word â Å“madeâ ? is contrary to the public policy of the Copyright Act and cannot be imported in â Å“on duty.â ? There is a long line of case law holding that â Å“createdâ ? by merely giving instructions pre-empts â Å“makingâ ? or 'taking' a photograph, and that the creator is the person giving the instructions, regardless of who took the picture. I think the proposition that ownership of copyright rests with the Crown in photographs taken by all members of the CF with their own equipment, without instructions, lacks an â Å“air of realityâ ?, for lack of a better term. There must be at least some direction or involvement of the Crown indicating Crown reservation of the work 'created' or even 'made.'
The conditions precedent found in Section 12 of the Copyright Act might serve to reinforce the above analysis:
12.Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.
Do not the words â Å“madeâ ? â Å“on dutyâ ? at least import the requirements of â Å“any workâ ? â Å“prepared ..by or under the direction and control of Her Majesty or any government department..â ??
Is the deeming provision of â Å“always being on dutyâ ? [wherever that lies in the military statutes and regs.] legally sustainable in the context of 13(3) to by-pass the words â Å“by or under the direction and control of ... any government departmentâ ? found in section 12?
Here is an interesting example: Ownership of copyright is life plus 50 years, and is roughly 50 years for the Crown. I used to submit photographs to the CF photography contests. Some of those photo's were of a military natue, but even if they weren't, did copyright belong to the Crown if I was on duty when I took them? If I now take these photo's, made calendars or screen savers or publish them in a book, and sold them for motive of gain, could the Crown make out a case and succeed?
This little loophole could be dealt with by amending the terms of contract for service, if such a term doesn't already exist. And ... such a term could be attacked quite handily.
Just my $0.02 and something to think about. [which of course wasn't necessary to begin with.]
Cheers.
http://army.ca/forums/threads/21958/post-118073.html#msg118073
Being â Å“on dutyâ ? is not defined in the Copyright Act. Based on the analysis linked above, Crown ownership of copyright would subsist in every photograph taken while a ship is at sea or a unit is deployed in the field. I agree with the intent of the post, but I must disagree on the theory posited.
Ownership of copyright is said to be an enforceable right created by statute in Canada, and hence a legal fiction, dear Anne notwithstanding. It is ownership of the copyright from which the reservation of economic rights flow. What then might be said of the determination of rights as a matter of statutory interpretation where the work is â Å“madeâ ? in the course of employment when compared to a work that is â Å“madeâ ? incidental to employment while â Å“on dutyâ ??
I have always found Parliament's choice of words in 13 (3) of the Act interesting. Here is a link to that provision: http://www.canlii.org/ca/sta/c-42/sec13.html
Arguably, â Å“madeâ ? suggests an original work manufactured with a specific purpose in mind: [see Hawley v. the Queen]. If a work is â Å“madeâ ? incidental to employment, does that satisfy the criteria of having been â Å“made' in the â Å“course of employment.â ? Does employment in the case of copyright import or conflcit with Montreal Locomotive at the time the work was â Å“madeâ ?? There is no evidence to suggest that the CF is exempt from the Copyright Act altogether due to the nature of the works and the information conveyed by the works. Othe Acts of parliament might apply to the information, but not to the ownership of the copyright and the associted rights to economically exploit them.
I think a better word might be â Å“createdâ ?. The idea that Parliament intended a water tight exemption to 13(1) with section 13(3) with the word â Å“madeâ ? is contrary to the public policy of the Copyright Act and cannot be imported in â Å“on duty.â ? There is a long line of case law holding that â Å“createdâ ? by merely giving instructions pre-empts â Å“makingâ ? or 'taking' a photograph, and that the creator is the person giving the instructions, regardless of who took the picture. I think the proposition that ownership of copyright rests with the Crown in photographs taken by all members of the CF with their own equipment, without instructions, lacks an â Å“air of realityâ ?, for lack of a better term. There must be at least some direction or involvement of the Crown indicating Crown reservation of the work 'created' or even 'made.'
The conditions precedent found in Section 12 of the Copyright Act might serve to reinforce the above analysis:
12.Without prejudice to any rights or privileges of the Crown, where any work is, or has been, prepared or published by or under the direction or control of Her Majesty or any government department, the copyright in the work shall, subject to any agreement with the author, belong to Her Majesty and in that case shall continue for the remainder of the calendar year of the first publication of the work and for a period of fifty years following the end of that calendar year.
Do not the words â Å“madeâ ? â Å“on dutyâ ? at least import the requirements of â Å“any workâ ? â Å“prepared ..by or under the direction and control of Her Majesty or any government department..â ??
Is the deeming provision of â Å“always being on dutyâ ? [wherever that lies in the military statutes and regs.] legally sustainable in the context of 13(3) to by-pass the words â Å“by or under the direction and control of ... any government departmentâ ? found in section 12?
Here is an interesting example: Ownership of copyright is life plus 50 years, and is roughly 50 years for the Crown. I used to submit photographs to the CF photography contests. Some of those photo's were of a military natue, but even if they weren't, did copyright belong to the Crown if I was on duty when I took them? If I now take these photo's, made calendars or screen savers or publish them in a book, and sold them for motive of gain, could the Crown make out a case and succeed?
This little loophole could be dealt with by amending the terms of contract for service, if such a term doesn't already exist. And ... such a term could be attacked quite handily.
Just my $0.02 and something to think about. [which of course wasn't necessary to begin with.]
Cheers.
