[politics] Re: [d@DCC] Senate Bill S-9

[Chris Brand]

Well I've read this thread with interest and find myself understanding
both Wallace and Russell's positions :-)

Ian! wrote :
>Russell refers to the problem of employers owning everything you think
>and do because they pay you a daytime salary.
>
>What you "get" when you pay for ("commission") something isn't obvious.
>With most closed software these days you only "get" a licence to use it.
>
>When you buy a car, you can drive it; but, you can't take the logo off
>the front and use it for yourself.  When you buy music, you can listen
>to it, and maybe even copy it; but, you can't re-sell it.
>
>Neither I nor Microsoft would want the person who pays for the work to
>always and automatically have full rights to it, denying the creator any.

I don't see most of these points as relevant. There's a big difference
between "commissioning" something (paying somebody to create it for you)
and buying something that is already (mass-)produced (like a car or software).

(And software manufacturers certainly claim that they only license you
the right to use the software, but there is a strong argument that
"it looks like a sale and quacks like a sale...").

Russell wrote :
>The issues with
>tracing ownership for photography is insignificant in comparison to large
>complex software works.

At least with software you almost always have a starting point - it's very
rare to find source code or an executable that doesn't tell you who
had the first copyright. With photographs, it is very common for the only
clue to be the people in the photo itself, and not uncommon for it to
be unclear who they are ! (speaking from experience in my own family history
research).
Russell's point that this is only a starting point is well taken - we
all seem to agree that following the copyright trail is very hard, but I
do think Wallace is right that it is made much harder when you have nowhere
to start from :-)
I should also note that portrait photos these days usually do seem to have
copyright info on them.

>> They are "special", because it is they, NOT the photographer, who 
>> provided the impetus, the creative force, for the photograph to be 
>> created in the first place. The photographer did not create the photo 
>> because of his muse, he created it because he was asked, and paid, to 
>> create it.
>
>  Here we simply disagree.  I could just as easily claim it was the
>designer of the clothing that the subjects were wearing, not the
>commissioner, that provided the majority of the creative force.  This gets
>into subjective concepts of creativity which we will never agree on, and
>IMNSHO has no place in the copyright act.

Of course, it's already there in the form of "work for hire" (which I
believe Russell would like to see removed).
To me, this is exactly like "work for hire" and it's just as unclear what
the "right" solution is.

The Act should reward creativity. For the classic case of any artist who
gets struck by a muse, this is easy. For the case where somebody else gets
struck by the muse, but doesn't feel capable of doing the actual creation,
I can certainly see a strong argument that initial copyright should go to
the person with the idea. Then there is a whole spectrum in between,
distinguished mostly by the amount of artistic control that the
commissioner wants, needs and exercises.

Overall, it's very difficult for the Act to assign initial copyright
to the person with the most artistic control. Perhaps, then it does make
sense to leave that to the contract signed by the creator and the 
commissioner.

Chris

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