Canadian DMCA will criminalize emailing your kids' class photos to their grandparents

Michael Geist continues his ongoing series on activities that will be illegal under Canada's new copyright act, the so-called Canadian DMCA (Bill C-61). Today, backing up DVDs and scanning school photos:
Diane, who is four years old, is a huge fan of the popular TV character Dora the Explorer. For her birthday, she received four Dora DVDs. Given Diane’s habit of scratching them, her dad has begun to create backup versions. That day, Diane brings home her kindergarten class photo, which was taken by a local photographer. Josee digitizes the photo and sends a copy to Diane’s grandmother.

If Industry Minister Jim Prentice’s Bill C-61 becomes law, all of these copying activities arguably violate the law.

Bill C-61 does not allow users to make backup copies of DVDs. The act of backing up the DVD is an infringement. Moreover, in order to make the backup copy, users must typically circumvent the copy-protection on the DVD, also an act of infringement.

For decades, Canadian copyright law has vested copyright in commissioned photographs – like school photographs – in the person who commissions the photo. Bill C-61 reverses that practice so that copyright now belongs to the photographer. (repeal of Section 13.2) Assuming the photograph came with an all rights reserved restriction, the act of distributing the digitized photo to Diane’s grandmother now violates the law. (Section 29.21 (1)(e))

I'm pretty sure that every Canadian reading Boing Boing knows about this law and what's wrong with it, and I hope you've all contacted your MPs. But the point of these posts is to help you communicate to your less tech-savvy friends about these issues. Did you email your grandmother a photo of your kids' kindergarten photos? Call her up and tell her that you won't be able to do it again with the grade one pics next year unless she calls up her MP and puts him on notice that he'd better oppose the CDMCA or lose her vote. Did your brother back up his DVDs to his laptop when he went away to university? Call him now and let him know that he'll be a criminal next year unless he calls and writes to his MP and lets her know what he thinks of Bill C-61. Link


  1. Why shouldn’t the person who commissions the photograph have the right to negotiate how many or few rights they wish to license from the photographer, or purchase control outright.

  2. Well, here’s a real, and frequent example from the US, where the copyright vests with portrait photographers, not commissioners:

    Your old aunt dies. You got to Kinko’s to have her wedding photo enlarged to sit next to the casket. Kinko’s says, “I’m sorry, but absent any hard proof that the photographer vested copyright in your aunt, I need to assume that this copyright belongs to him, so you can’t have this photo (or any other portrait photos) for the funeral.” The only way to get around it is to track down the descendants of a photographer who took your aunt’s wedding photos fifty years ago and ask them for a license (and pay whatever they charge).

    There’s nothing about the existing system that precludes commissioners and photographers negotiating for different rights — the only thing Canadian law says today is that, absent any other agreement, the photographer is assumed to have assigned copyright in photos to his clients.

  3. if the default assumption is work for hire, it becomes very difficult for the photographer to enforce any license that is more restrictive than default. Of course, even with default WFH assumption, you could still argue that Kinko’s could demand the person requesting the enlargement prove that they in fact were the ones who commissioned the work in the first place, which is more or less back at the start of the problem. :)

    (yes, I’m a strong advocate of OSS/CC, and the entire output of both my professional and hobbyist work is freely licensed… but I do wonder about the balance of power in enforcing legitimate, negotiated rights in more restrictive licenses, and where to make the neutral point between the rights of users and the rights of the creator.)

  4. Ok firstly I am against silly copyright laws that penalise the paying customers. But from UK photographers law, it is already illegal to copy a photographers image. What you pay for is the actual physical photograph (and labour, time, equipment) not the rights to it, the copyright always belongs to the photographer until they sign it away, and many photographers are usually reluctant to do that. I used to work as a lab guy and we couldn’t reproduce photographers images, if they had a copyright on the back (which most do). It’s always been like this, people just assume they own the image.

    That said there isn’t a way to really enforce this if you scan it in from home (which I usually suggested, as the photographer usually doesn’t mind / care if you do). Like #2 example, how would the photographer or authorities find out about it to stop it, and would they waste manpower on enforcing it. Plus laws around images are always vague and nothing seems to be concrete.

  5. I’m sorry, it’s just not the case that copy shops in the US take a “how would the photographer or authorities find out about it to stop it, and would they waste manpower on enforcing it” attitude. Since K-Mart paid out a high-six-figure settlement to photographers for reproducing portraits, no major copy shop has been willing to take that risk. It’s virtually impossible to get your portrait shots enlarged, retouched or reproduced at a Wal-Mart, K-Mart, Kinko’s, etc. What’s more, these shops have been known to turn away such requests for photos that are *not* studio portraits because they “look too professional” and *might* be studio portraits.

  6. @#5

    I meant scanning and printing the image at home not taking it to a printer, as I already said I worked at as a printer at jessops and wouldn’t print those images. Those companies are trying to protect the photographers rights (as I said they own the rights), even if some are over zealous in their approach. I was just saying it was already illegal (well here in the UK, don’t know about Canada) to reproduce things like school pictures and pro portraits.


    Then the paradox folds the universe until it becomes a polaroid.

  7. This situation describes my family perfectly. I have three small kids, and have backed up 213 DVDs on my HP home server, and view them through Vista Media Center via Xbox 360 on our 55″ rear projection tv.

    The craziest thing about this bill is that if I illegally downloaded all the movies, I would be liable for a maximum of $500 per movie. But since I circumvented DRM on DVDs that I OWN, I would be liable for a maximum of $20,000 per movie.

  8. The real problem with C-61 is that it puts photographers in the priveleged position among creators of being able to contract away their consumer’s fair-dealing rights. You can’t do that if you write a work or compose a work, but you will if you photograph a work.

    Photographs are already problematic in copyright law because the information that you need to determine (a) whether copyright subsists in the work; (b) if so, when that copyright expires; and (c) if so, who owns the copyright, is almost never inherent to the physical work. C-61 exacerbates that by also making it impossible for a stranger to the work to know what he or she is allowed, as a matter of fair dealing, to do with the work.

    After all, if your house is threatened by a wildfire, you take your photo albums and your cats. You don’t root around for the receipt from your portrait photographer which contains the fine print as to what you can or can’t do with the work.

    That information should be contained in the act, and not subject to contractual over-ride.


  9. “it is already illegal to copy a photographers image.”

    Quite right! Including scanning and sending the standard kindergarten class photo.

    And it’s not just images. Try taking music charts – even of your OWN MUSIC – to a diligent copy shop. I’ve seen a guy turned away, even though he’d written the tunes he wanted to photocopy. The photocopy dude just won’t take the chance.

    The trouble isn’t just that this particular copyright law sucks, though it may. It’s that the very notion of intellectual property is at odds with social use of creative work.

    IP exists because the ability to record (even if only by making marks on paper) and therefore to copy and promulgate exists.

    At one time all music (for example) was oral, and organic, and thus not perceived to be anyone’s properly. As much as I enjoy making a few bucks in royalties, I kinda yearn for such a time.

  10. Interesting clip about the amount of fine for infringement from the Globe this morning (not from Geist!):

    It’s a fantastic piece of strategy. As the American experience has demonstrated, if you want a public-relations fiasco on your hands, sue a single mother (or a 12-year-old, or a puppy) for an obscene amount of money. But $500 is a fine that flies beneath the media’s carefully honed outrage radar. It’s the kind of fee that’s easier to pay than to fight – and that’s what people will do.

    Keep them low and they’ll pay!

  11. @#9

    I was pointing out that the law already exists (though it may be a bit vague), at least here in the UK. It’s a good law as it helps prevent people stealing photographers pictures without paying, there are a few big publishers and ad companies that do steal photographers images. As for school pictures, the photographers probably don’t care if you do get copies but printing companies cover their backs by refusing to any at all.

    The IP law would go too far if it said you couldn’t emulate another image, lets say a pose of a model and style. And saying that the idea of the image is theirs and theirs alone. My company got a cease and desist from O2 because we use a promotional image of some bubbles on a blue graded background, because they had the copyright to the image (of what bubbles? of air?) and only they could use images of bubbles. They just lost a court battle with someone else on a simlar issue, we’re tempted to send them another one of images ;p

  12. it’s still mind-boggling to me that canada did not learn from our mistake. the dmca is a bad idea for us here in the states, and it’s a bad idea for the rest of the world.

  13. @13

    Oh…WE learned. Unfortunately WE are not the ones in charge. That would be the politicians who…well…have an aversion to learning it seems. Or answering questions, meeting/talking with the public…you know, the ones who elected them…

    It’s sad, but for some reason, I don’t see the Liberals and the NDP forcing an election over this. This will defiantly be a confidence vote (most things have been so far) which means, if defeated, we go to an election. No one seems to want that right now, though, there have been AMPLE opportunities to do so.

  14. I know that I’m out of step with the majority here, but I rather like the idea of a law that makes it a criminal offense for people to email me pictures of their kids.

    Perhaps we could get rid of the other provisions of the Canadian DMCA and just leave that one in.


    Sorry for the caps, but I had to shout that.
    My damn kids face is belongs to her/him and until the child is old enough, the parents/guardians should be able to manage their kids copyrighted works ie; paintings, stories, etc.

    This has gone too far, losing the freedom to scan and email a picture of your own family!?!

    My fuckin god, what country do we live in again?

  16. The very notion of giving a work-for-hire photographer rights to the photograph seems ridiculous to me. For one, they have been paid for their work up front — royalties are not their method of payment. Not to mention, why should the photographer have rights to a photo of you, your family, your house, and everything else in that picture? Quite the opposite, I would hope that I, the person in the photograph, had all rights to how that photograph could be used — after all, it’s a photograph of me!

    Lastly, and perhaps most importantly, is that a reasonable person would not expect that they would not have any rights to the photograph which they commissioned and which portrays their likeness. How many parents make copies of their kids’ photos to send to their family? How many make copies of their wedding photos to send to their friends? This isn’t being done to spite photographers; it’s being done because they have no reason to believe otherwise.

    It’s unfortunate that other countries have already set the precedent for such unreasonable rules. Rather than impose them on Canadians, I’d like to see other countries take a second look at their own laws. As with any law, one must always ask, “Why is this necessary?”

  17. Woolie as you your original question. Because it takes all protections/control away from the consumer for copying, displaying, modifying or distributing the work. It puts consumers, who have little if any understanding of what their rights are (and even if they did know, what rights would they negotiate for?) at the mercy of the photographer who does know the ins and outs of the law.

    As it stands now, if the photographer wants to bargain for more rights over those commissioned works, there is nothing in the law that says they can’t and, trust me they ask and do get additional rights.

    Suppose I take a photograph of Diane’s kindergarten class photo. Then what?

    Richard Prince is that you? ;)

  18. Amusingly, here in Canada Sears Portrait Studio currently charges you $50 extra to get the rights to your commissioned picture.

    It sounds like they shouldn’t be doing that.

  19. Reveng, you have to be a little careful with that argument, because if you tweak it just a little, it sounds like an argument against allowing photography in public — “I would hope that I, the owner of that building, had all rights to how that photograph could be used — after all, it’s a photograph of my property!” Just because someone is the subject of a photograph doesn’t mean they own it.

    That said, portraiture to me is pretty clearly work-for-hire. Commercial or fashion photography is not, because someone is going to be using your work to make lots of money and you should have a right to some of that. Here is where a Creative Commons license comes in very handy to differentiate the cases.

    My boyfriend, who is a professional photographer, doesn’t shoot many weddings. When he does, he generally includes in the contract a price for buying the rights to reproduce the images, so the couple can do what they want with them (he also includes a written form with his signature and contact info to prove to anyone that he has given them these rights). He retains copyright in the image, since it is his artistic work — he can use it in his portfolio, on his website, etc. and can continue to make money off of it. But the couple has every right to make prints, send digital copies to their family, etc.

    I think that’s a fair model. It allows the photographer to profit from his/her work, but allows the subjects of the photograph to freely enjoy non-commercial use of their portraits.

  20. Suppose I take a photograph of Diane’s kindergarten class photo. Then what?

    Then the same as if you had scanned it. Illegal copy. The same reason you often can’t take photos in art galleries.

    The problem here is not that the image is copyrighted, it’s who owns the copyright. If the photographer owns your kid’s school photos, your wedding photos, etc then you can not reproduce them without permission.

    For decades, Canadian copyright law has vested copyright in commissioned photographs – like school photographs – in the person who commissions the photo.

    This I was unaware of. I had always assumed that the photographer own the rights. At least that’s the way it’s always been presented to me by the photographers.

  21. Seems like a bit of a Mexican standoff. Without a model release, the photographer can’t do anything with the photos either. For a release to be valid, the subject has to sign and receive compensation for it.

  22. First, “Suppose I take a photograph of Diane’s kindergarten class photo. Then what?” That’s a derivative work, arguably, and falls under the fair use doctrine. the Dead gramma wedding photo might even be in public domain at this point, so there is that too. I don’t want to and will not argue to defend corporate ass-covering retail print shops policies. They do what they have to do, go use the self service machines if you want to break a copyright.

    Second, infringing copyright isn’t a criminal offense, it’s a civil one, against a private party, so it isn’t “illegal”.

    Third, well, I have a photographer in the family. A photographer who owns a studio and makes his living and feeds his kids off the sales of portraits of high school seniors, grade school kids, families, what have you. The way this works is people pay a nominal fee for a studio session, which barely covers the cost of film (or the $30,000 digital camera, or the building, staff, or whatever). Then the customers get a low quality rough print of the negatives, the “proofs”. They get to look at those, decide which they like, and then order images from the photographer in whatever sizes and quantiites. School photos are the same deal.

    People often (maybe 10-20%) take their proof books to kmart and just make their own prints off the low res copies and never come back to order prints. This breaks an agreement with the photographer, infringes his copyright, and undermines his business model. It’s completely untenable.

    One of the schools he photographs for needed to make IDs for the kids, so they told the parents to bring in a wallet and have it photocopied at school. This is a total slap in the face to him, he owns the rights to the photos. So he went into the office of his kid’s school, and had to tell them what the law and their contract said, and why what they asked wasn’t okay. They had no idea.

    If you want to buy the rights to your images, get the giant RAW files, or the negatives, you’re welcome to do it. But it will cost more. Wedding photography is not the same as studio work. the photographers are much more likely to be freelancers without established studios or lab connections, and often do work for hire, but they’re semi-amateurs too. Professional photographers get burned out on weddings really fast.

    Now that printing and scanning are so easy, he just doesn’t give people proofs anymore. He went all digital, and has people order photos from the studio display. After that, if they infringe his copyright and distribute wallets and copies, he can’t really stop them, but at least it won’t bankrupt him.

    Making copies of, and distributing someone else’s photos, even if they are photos of you and yours, is not the same as backing up DVDs because your kids scratch them. Backup your photos if you want to as well. But just because you have it doesn’t mean you can do what you want with it.

    Well that’s a long tirade. We have copyright law for a reason. It protects creatives work so that they can make a living off of it. Portrait photographer’s don’t work for hire, they make money off prints. If no one orders prints, then they change their model or go under.

  23. I’m a professional portrait/wedding photographer in the US. Our laws already grand copyright (of everything) to the creator, not the client.

    For me, this is really important – being a photographer is a very expensive and difficult business. I often work 12-18 hour days for my clients, and my pricing is based on the assumption that they will buy prints and albums from me. I do offer brides an unlimited license to my digital files when they book a complete package with me, because I know it’s important to people that they be able to email and print their own photos – but if the law allowed someone to pay for just one small print and suddenly create huge volumes of their own prints by copying it, it would be difficult for me to stay in business – I would need to dramatically increase my prices and stop selling small prints at all.

    I understand the arguments on all sides of this issue – I don’t like the US DMCA one bit and the canadian version sounds pretty bad too – but it isn’t all big evil monopolies. Some of us are small individual creators who live and die by our copyrights – we need _some_ protection, though the full-blown DMCA isn’t the right one.

  24. So everyone has to suffer because photographers have created a bad business model? Why is a bad business model always the customers’ fault? Why is it always the fault of everybody except the person who uses it? Note to self: If I ever end up in a business where I regard my customers as the enemy, get out.

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