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

[Jon-o Addleman]

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any unpublished work - it's hard to track down the photographer who did 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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