[politics] Re: [d@DCC] Senate Bill S-9
jonathan.addleman at mail.mcgill.ca
Mon Nov 1 15:53:45 EST 2004
Wallace J.McLean wrote:
> I said that commercial portrait photographers do not take little
> Johnnie's school picture because they are struck by the creative urge;
> they take it because they are paid to do so.
> That is not to say there is no creativity involved in taking that
> picture. I haven't said there isn't. But it remains, an absolute and
> undeniable fact, that these types of photographs are NOT created
> because of the artistic spirit moving within the poor, downtrodden
> creator; they ONLY exist because someone came into the studio and
> ordered Package 6B to enclose in their Christmas cards.
Seems to me that that's how MOST art is produced, and of course, a huge
amount of non-Art creativity as well. Is a band recording a song under
contract doing it out of artistic exuberance? Or is the money they're
(hopefully) getting out of it their main motivation? What about a
journalist writing an article for a newspaper? What about me writing up
some documentation during some software testing at work? Who should get
the copyright in these cases?
I don't really see anything special about photography, except in that
it's a kind of professional creativity that many people are familiar
with - not many people directly hire software programmers or journalists.
My take on things is that the Copyright Act simplified says this:
The 'author' of a creative work is the one who gets initial copyright,
and who determines the duration of that copyright. (life +50 years).
Those rights are transferable in various ways, but the duration, and
such things need to be determined by the identity of the creator themselves.
A work for hire is just that - I hire a creator to create something.
That doesn't make me a creator. Unless a contract is signed to transfer
some of those rights from the creator to the commissioner, the creator
retains those rights just as if he had created it himself.
It gets messy, requiring contracts for what maybe should be simple stuff
though. But I believe that a lot of the issues that arise are common to
any unpublished work - it's hard to track down the photographer who did
some school photos, but it's also difficult to track down who was the
copyist who wrote out the sheet music for a song, or even the arranger
in many cases. The problem here is really that the duration of copyright
is so ridiculously long though, and has nothing to do with who actually
has the copyright in the first place.
The other messy issue is deciding just who is the 'creator' in the case
of a work with many people working on it. That's going to exist in any
context though, whether money is exchanged or not. Like the thread from
a month or so ago about 'authorship' of a movie, who is the creator?
Should everyone involved have a stake in the authorship? Maybe so. Maybe
not. It gets messy, but I don't think 'the one with the money' should
become the author in any case.
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