The copyright claws come out in EU catwalk photo battle

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The publication of this comment is part of a cross-posting agreement between Medialaws and IPilogue (IP Osgoode Law School blog):http://www.iposgoode.ca/2013/03/the-copyright-claws-come-out-in-eu-catwalk-photo-battle/

Tout arrive en France, especially for folks following recent intellectual property news. The European Court of Human Rights (ECHR) released a key judgment in January in a case that pitted copyright against freedom of expression.
Case Synopsis
Three fashion photographers were assigned to photograph fashion shows in March 2003 by la Fédération française de la couture, a professional union established in 1968 by French fashion houses that oversees the taking and distribution of photographs from their runway shows. The photographers put these photos up on a website of their choice, violating the image copyright held by la Fédération. The photographers argued to the ECHR that the copyright restrictions – and subsequent French court fines of €255,000 for violating these restrictions – infringed freedom of expression rights under Article 10 of the European Convention of Human Rights.
26. Les requérants soutiennent que des photographies de défilés de mode constituent une « information », et que leur diffusion sur un site Internet relève de l’exercice de la liberté d’expression même si l’objectif poursuivi est commercial. Ils ajoutent que les lourdes condamnations prononcées contre eux caractérisent une ingérence dans l’exercice de cette liberté…
In my opinion, the ECHR handed down a fair and balanced judgment. It dismissed the appeal, discounting the expression argument because the photographs were used for a commercial nature unrelated to public debate. At the same time, however, the ECHR maintained that in cases where a public value is demonstrated, freedom of expression could trump copyright.
32. Sur ce dernier point, le Gouvernement souligne que les Etats disposent d’une marge d’appréciation plus importante lorsqu’il s’agit de restreindre l’expression sur un sujet qui ne relève pas d’un « débat d’intérêt général ». Or, d’une part, la médiatisation et le caractère public des défilés de mode ne suffiraient pas à en faire un sujet de cette nature. D’autre part, les photographier ne reviendrait pas à contribuer à un débat de nature politique ou sociale ou à mettre en cause une personnalité publique. Selon le Gouvernement, il n’y aurait aucunement atteinte aux droits et libertés fondamentaux de quiconque si de tels événements devaient ne pas être médiatisés. [Emphasis added]
Wrote Professor Dirk Voorhoof of Ghent University and Inger Høedt-Rasmussen of Copenhagen Business School on the official EHRC blog,
It is, in other words, no longer sufficient to justify a sanction or any other judicial order restricting one’s artistic or journalistic freedom of expression on the basis that a copyright law provision has been infringed. Neither is it sufficient to consider that the unauthorised use, reproduction or public communication of a work cannot rely on one of the narrowly interpreted exceptions in the copyright law itself…
Additional background commentary in English is here and here.

Canadian Comparison
There are two key distinguishing factors in the Canadian legal system that would impact how a similar case would play out domestically.
First, there is uniqueness to our judicial infrastructure as compared to France. Decisions of the highest domestic courts in each EU member country are subject to application to the ECHR; EU laws and courts supersede French courts. In Canada, however, the decisions of the Supreme Court are subject to no further judicial review; case appeals – based on Charter of Rights and Freedoms challenges or any other grounds – are firmly decided by our country’s highest court. Any photographers levied a fine by the Supreme Court of Canada would not have the opportunity to appeal to a similar multi-national human rights court.
Secondly, our Copyright Act would likely determine the matter in contract law, and in much the same way as did the French court. The Copyright Act section 13(1) gives the author of a work first ownership rights, unless section 13(3) is invoked, which emphasizes that work created under a contract so stipulating can remove first ownership from creators.
Where the author of a work was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright. Under Canadian law, much of the result would depend on whether the specific facts militated towards an interpretation that the employment agreement was a contract of service or a contract for service.
Section 13(3) only applies if the work was created under a contract of service (Massie & Renwick Ltd v Underwriters’ Survey Bureau Ltd, 1940 SCC), not to independent contractors, who work under a contract for service (671122 Ontario Ltd v Sagaz Industries Canada Inc, 2001 SCC). Factors to consider when evaluating the degree of independence of an employee include the creator’s control over accomplishment of the task, the creator’s ability to hire assistant staff, the system of compensation, or the amount of tools or materials provided by the creator (Community for Creative Non-Violence v Reid, 1989 US).
Certainly these creators would try to argue that a union photography contract isn’t a contract of service or apprenticeship, but without an explicit agreement to the contrary, my opinion is that the argument would likely fail on the facts.
The photographers had little leeway in terms of how to complete their task. They runway shows were predetermined and the photographers had to show up when and where the shows were happening. Their overall agency in the experience was minimal. Certainly the photographers by use of their own personal camera and positioning can impact the photographs, but within a much larger artistic experience dictated by others; the setting, the staging and the infrastructure of the showcases were not within the control of the photographers. Moreover, the photographers had no ability to engage in additional sub-contracting. The system of accreditation was tightly controlled, and far outside the photographers’ control. Quite honestly, their role was to point and click.
And generally speaking, the idea of claiming to be an independent contractor is antithetical to the notion of a union contract. The issue is where the contract sat on the spectrum of autonomy. Certainly a union contract by its very nature leans more toward the idea of employees and association as opposed to independent, solo contracting. A union photography job would, in my opinion, best be interpreted as a contract of service and the authors would consequently not own the copyright.

Conclusion
Ultimately, I believe the content and balance of this decision is strong. Non-commercial freedom of expression is a right that should be interpreted widely.
The EU multinational legal structure is an interesting scenario, but not one that I would choose for our continent. My skepticism of American juristic culture aside, a domestic court that factors in adverse systems of oppression unique to a country’s borders and history while still following international human rights trends seems like the better balance.

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