Totems? What totems?

Bwa ha ha ha ha! Does this contravene the City of Duncan's totem copyright policy? (see previous post for original photo.)

Sue me, City of Duncan

Here's another photo I took of the totems in Duncan. I did not - and never will - ask for permission to take the photo or to publish it. After sending my letter to the editor and city council as mentioned in my previous post, I was interviewed by a reporter from the Cowichan News Leader and a story about my reaction to the City of Duncan's totem policy requiring authorization for use of images of the totems appeared on the front page of the paper (much to my surprise).

Even more to my surprise, I've gotten requests for interviews from Shaw TV and the CBC! The interviews haven't happened yet, so the coming days should be interesting.

Not to my surprise, Coun. Paul Fletcher, chairman of the city's totem committee sent a letter to the editor calling my concerns "downright silly."

If defending our basic right to freedom of expression is "downright silly," then call me completely stupid because I'm not letting this go. Being called "downright silly" for defending our fundamental freedoms by someone who is not only a professional photographer, but also firmly planted on the left end of the political spectrum is absolutely mystifying.

The city's policy on photographing the totems is wrong on so many levels. As I have stated before, the Copyright Act clearly states it is not an infringement to photograph permanent displays of public art. That alone renders the city's policy useless. Going beyond that, Coun. Fletcher said in his letter that city council "is fully within our rights to control how best these images are used." Wrong again, Coun. Fletcher. Since I'm not infringing on your copyright by photographing the totems, you have zero control over how I use my images of them because the Charter of Rights guarantees me freedom of expression.

Coun. Fletcher's letter to the editor says the simple intent of the policy is "if someone has a project that would result in significant profits we would very likely consider a surcharge or fee to help pay the costs of maintaining and building our public art collection." If that is indeed the intent, it's not reflected in the wording of the policy which states, "the use of the totem images in any form requires approval from the City of Duncan."

Regardless of how well-intentioned the city is in adopting this policy, it's still fundamentally wrong and unconstitutional, and I come right back to the copyright act to demonstrate that.

By the way, this posting is in clear violation of the city's policy as it is written. I challenge the city to do anything about it.

Below is my letter to the editor in response to Coun. Fletcher.


With all due respect to Councillor Paul Fletcher, Section 32.2 of the Copyright Act states:

(1)"It is not an infringement of copyright . . .

(b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work

(ii)a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;"

What part of this does Coun. Fletcher and the Totem Committee not understand? It doesn't matter if the city holds copyright on the totems. They are a permanent public display and it is perfectly legal to photograph them without permission.

If Coun. Fletcher thinks, as he stated in his letter to the editor, our copyright law is "notoriously week," that's too bad. It's the law nonetheless and a municipal policy doesn't trump federal law.

My objection to the policy not about taking photos. It's about trampling a basic freedom guaranteed by our Charter of Rights. As someone who lived in a communist country for three years, I am very sensitive to the protection of basic rights and strongly object to anyone trying to restrict the rights of others. We live in a country where you can wipe your butt with the Canadian flag, call it art and be fully within your rights to do so as long as you are not breaking any other laws. As reprehensible an action that may be, I will defend someone's right to do so.

In presenting 32.2 of the Copyright Act, I believe I have adequately demonstrated the city's policy is completely toothless and plain wrong. I challenge the city to show me any section of the Copyright Act that would support its policy.

Regards

Len Langevin
lml

Taken without permission

Both Duncan newspapers this morning heralded the disturbing news about the newly adopted City of Totems Copyright Policy.

According to the stories that ran in the Citizen and the News Leader, the policy states the City "holds the copyright policy on the totem collection," and that "the use of the totem images in any form requires approval from the City of Duncan," and "Furthermore, the City of Duncan reserves the right to levy a copyright charge on a project-by-project basis."

I have no doubt the city holds copyright on the structures, but the policy disturbs me because it appears to be in contravention of the Canada Copyright Act which clearly states it is not against copyright law to take a photo of any architectural work, or a permanent piece of public art.

Photography of Buildings and Public Art

Copyright Act, 32.2. (1): It is not an infringement of copyright

(b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work

(i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or

(ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;

I applaud the city for wanting to control its copyright of the totems, but this policy clearly oversteps its boundaries, infringes on our basic freedoms and borders on extortion. As much as I believe in protection of copyright, I am very much a defender of personal rights and freedoms. Since it is not against the law to photograph public art, permission is not required to take photographs and no one can be prevented from doing so.

Below is a letter I sent to the Mayor and Council as well as to the editors of both Duncan newspapers.

Totem copyright policy oversteps boundaries, borders on extortion

Dear Mayor and Council ,

Although I applaud anyone for protecting copyright of their intellectual property, the newly adopted City of Duncan Totem Copyright Policy oversteps its boundaries. The policy is saying we now have to ask for permission to do something we have every right to do – a right guaranteed under federal law in the Copyright Act.

It is clearly stated in the Copyright Act that it is not against copyright law to take a photo of any architectural work or permanent piece of public art. Section 32.2 of the Copyright Act states:

(1)"It is not an infringement of copyright . . .

(b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work

(i)an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or

(ii)a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building;

Under The Charter of Rights and Freedoms, we are all guaranteed the right to express ourselves through photography (or any other art form). We furthermore have the freedom to publish the artwork we take. With rare exceptions under the Security of Information Act which covers arsenals, military installation and other items of national security, anyone can take photos of anything in public, without permission, and it is not against the law.

To take the matter even further, the policy – which essentially prevents anyone from doing something that is fully within their rights – borders on extortion. Under the Criminal Code of Canada, section 346 states

(1), "Every one commits extortion who, without reasonable justification or excuse and with intent to obtain anything, by threats, accusations, menaces or violence induces or attempts to induce any person, whether or not he is the person threatened, accused or menaced or to whom violence is shown, to do anything or cause anything to be done."

If the city truly wants to exercise its copyright of the totems, it should be creating (or commissioning artists to create) calendars, postcards or ornaments of the totems and marketing them rather than putting up barriers to photographers who may or may not be creating any of the afore-mentioned items.

City Hall receiving permission requests to photograph the totems does not mean a policy was required. Based on copyright laws, the answer that should be given to anyone requesting permission is "you are fully within your rights to photograph any public art."

Regards

Len Langevin

lml

Ghostly

I love playing with long exposures and putting myself into the pic.

Big Dipper

I spent part of the holiday weekend at Salmon Beach (near Uclulet) which has no electricity. With no street lights to spoil the view, the stars really stand out on a clear night.