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