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

Lesson in communication law

The guy driving this car needs a lesson in communication law - and I'm providing that to him free of charge right now. If you know him, please send him the link to this blog.

I was out taking pics last night and decided to try my hand at panning shots of traffic - mostly motorcycles and the odd car that caught my eye. I had taken several pics when this guy turned his car around, came up to me spouting terms like "invasion of privacy" and demanded I erase the pic from my camera because I didn't ask his permission to take his picture.

I told him I didn't need his permission to take his picture and I wasn't going to erase it. He threatened to call the cops and also to sue me. I told him to call the cops and his lawyer, adding I would wait for the police to come. I'll spare you the details, but the exchange went on for quite a while before he eventually went away.

Here's what this guy needs to know

I am guaranteed the right to express myself through photography, and I have the freedom to publish the photos I take. The Charter of Rights and Freedoms guarantees my right to take photographs of anything. With rare exceptions under the Security of Information Act, I can take photos of anything or anyone in public, without permission, and it is not against the law.

Don't just take my word for it. Here's what the Charter says:

• Canadian Charter of Rights and Freedoms, 2.b):
  freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
  
  
• Canadian Charter of Rights and Freedoms, 7.:
  Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

As for the Privacy Act, it protects personal information submitted to the government from improper use or distribution. It does not apply to photography.

Here's the pertinent point from the Act:

• Privacy Act, 2.:
  The purpose of this Act is to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information.

Here are a few other points this guy needs to know.

• I cannot be fined or charged by a private citizen, property owner, or security guard. These people do, however, have every right to sue me if they believe I have done damage to them.
• Nobody can threaten to destroy my camera, lenses, film, other property, nor can they threaten me with physical harm. Nobody can actually destroy my property, forcibly delete photos, expose your film, or harm me. Police can not interfere with my lawful enjoyment of my camera. If anyone harms me or damages my property, I can sue them under civil law to recoup the damages. I may even be able to file criminal charges.
  
  Criminal Code, 264.1 (1) ("Assault"):
  Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive a threat
  (a) to cause death or bodily harm to any person;
  (b) to burn, destroy or damage real or personal property;
  
  Criminal Code, 430 ("Mischief"):
  Every one commits mischief who wilfully
  (a) destroys or damages property;
  (b) renders property dangerous, useless, inoperative or ineffective;
  (c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
  (d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
  
  
• Nobody can force me to delete photos (with the exception provisions under the Security of Information Act.) According to the Canadian Copyright Act, my photos are owned and copyrighted by me, for my lifetime, and 50 years after my death. My photos are my private property. Willful destruction of private property falls under Criminal Mischief.
  
  Copyright Act, 6.:
  The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author, the remainder of the calendar year in which the author dies, and a period of fifty years following the end of that calendar year.
  
  Copyright Act, 10.:
  (1) Where the owner referred to in subsection (2) is a corporation, the term for which copyright subsists in a photograph shall be the remainder of the year of the making of the initial negative or plate from which the photograph was derived or, if there is no negative or plate, of the initial photograph, plus a period of fifty years.
  (2) The person who
  (a) was the owner of the initial negative or other plate at the time when that negative or other plate was made, or
  (b) was the owner of the initial photograph at the time when that photograph was made, where there was no negative or other plate,
  is deemed to be the author of the photograph and, where that owner is a body corporate, the body corporate is deemed for the purposes of this Act to be ordinarily resident in a treaty country if it has established a place of business therein.
  
  Criminal Code, 430 ("Mischief"):
  Every one commits mischief who wilfully
  (a) destroys or damages property;
  (b) renders property dangerous, useless, inoperative or ineffective;
  (c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
  (d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
  
  
• Nobody can report that you broke a law to the police when you have not, or make false statements to discredit you during an investigation, according to the Criminal Code.
  
  Criminal Code, (Misleading Justice) 140.(1):
  Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by
  (a) making a false statement that accuses some other person of having committed an offence;
  (b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
  (c) reporting that an offence has been committed when it has not been committed;
  
  Criminal Code, (Extortion) 346. (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.
  

So there's the lesson in communication law for my friend in the car. I know there's a lot of information in the post, so let me summarize with one salient point.

I don't need your permission to take your picture.

Privacy Act, 2.:
The purpose of this Act is to extend the present laws of Canada that protect the privacy of individuals with respect to personal information about themselves held by a government institution and that provide individuals with a right of access to that information.

My thanks to Ambient Light for making my legal research rather easy. Ambient light focuses on Canadian Laws. For American laws, visit attorney Bert Krages' site.

Ironically, I probably would have deleted this pic once I got home and saw how unspectacular it was. Instead, I now have a reason to publish it.