Part Two: The Commissioning Rule
A. Background
I. The Copyright Act 1994 and the Commissioning Rule
13. The default rule regarding first ownership of copyright is expressed in section 21(1) of the Act and provides that the author of a work is the first owner of any copyright in that work. The author of a work is the person who creates the work. There are two exceptions from this default position:
- Section 21(2) provides that, where an employee creates a literary, dramatic, musical or artistic work in the course of his or her employment, the employer will be the first owner of copyright; and
- Section 21(3) provides that where a person commissions, and pays for or agrees to pay for, the creation of a photograph, computer program, painting, drawing, diagram, map, chart, plan, engraving, model, sculpture, film, or sound recording, the commissioner, not the creator, is the first owner of copyright in the work produced.3
14. This paper is only concerned with the commissioning rule in section 21(3) of the Act. Commissioned works should be distinguished from works created in the course of the author's employment (as, for example, referred to in section 21(2) of the Act). A person is "employed" for the purposes of the Act if employed under a contract of service or a contract of apprenticeship.4 A contract of service exists where the relationship between the two persons is that of an employer and employee.
15. In contrast, to commission simply means to order or request and the underlying agreement is a contract for services where the relationship is that of a commissioner or employer and an independent contractor. For the commissioning rule to apply, the commission must pre-date the making of the work commissioned. Whether a work is "commissioned" is ultimately a matter of fact to be decided in the circumstances of each case.
16. According to section 21(4) of the Act, the commissioning rule is subject to any agreement to the contrary.
17. The commissioning rule is also subject to section 26 of the Act, which relates to Crown copyright.5 According to section 26(1) the Crown is the owner of any copyright subsisting in any work created by any person who has been employed or engaged by the Crown under, inter alia, a contract for services. However, similar to section 21(4) of the Act, this rule can be overridden by contract. Essentially it means that the commissioning rule does not apply to works commissioned by the Crown. First ownership of these works is governed by section 26 of the Act, which places first ownership of copyright with the Crown as the commissioner. Please note that section 26 of the Act is not subject of this review.
18. The commissioning rule is further subject to section 28 of the Act, which relates to copyright vesting in certain international organisations.6
19. The author's moral rights (the right to be identified, the right to object to derogatory treatment, and the right to object false attributions) and the right to privacy of certain photographs and films are independent of copyright ownership in the work. The commissioning rule does not affect the moral rights enjoyed by authors of commissioned works.
20. However, additional protection for those who commission photographs or films for private and domestic purposes is afforded by section 105. Section 105(1) provides:
A person who, for private and domestic purposes, commissions the taking of a photograph or the making of a film has, where copyright exists in the resulting work but is owned by some other person, the right-
- Not to have copies of the work issued to the public; and
- Not to have the work exhibited or shown in public; and
- Not to have the work broadcast or included in a cable programme7.
II. History of Commissioning Rule
21. The existence of the commissioning rule in New Zealand can be traced back to the 19th century.8 Section 2 of the Fine Arts Copyright Act 1877 (NZ),9 for example, provided:
… when any work of art … shall be made or executed for … any other person for a good or a valuable consideration, the person so … making or executing the same shall not retain the copyright thereof … but the copyright shall belong to the person for on whose behalf the same shall have been made or executed….
Although it is clear that the commissioning rule and its predecessors have had a long history, the underlying reasons for the introduction of these provisions are not always certain.
22. Under the Copyright Act 1908 (NZ) which consolidated, inter alia, the Fine Arts Copyright Act 1877 (NZ) and the Photographic Copyright Act 1896 (NZ), copyright in a "work of art" that has been commissioned was owned by the commissioner, unless there was an agreement to the contrary. A "work of art" included a wide range of works, namely paintings, drawings, engravings, useful ornamental designs, sculptures, photographs and negatives of photographs.
23. However, under the Copyright Act 1913 (NZ) the application of the commissioning rule was limited to engravings, photographs and portraits. The 1913 Act basically followed the Copyright Act 1911 (UK) which applied the commissioning rule only to those categories of work.
24. The commissioning rule was again expanded in scope under section 9(3) of the 1962 Act (NZ), adding paintings, drawings and sculptures. These additions were not discussed in either the Dalglish Committee Report10 or the Parliamentary debates on the Bill. Under the 1962 Act (NZ) the commissioning rule was further applied to film and sound recordings. The inclusion of sound recordings may have been the result of the 1962 Act (NZ) largely being based on the Copyright Act 1956 (UK), which included sound recordings in its commissioning rule.
25. The 1985 amendment to the Copyright Act 1962 added models as a category of protected subject matter and also added them as a category of works to which the commissioning rule applies. There is no direct reference to the reasons for the inclusion of models in the commissioning rule. However, the Industrial Property Advisory Committee in its two reports11 concluded that there should be consistency between the rights arising from designs that originate from models with those that originate from drawings. This may, to some extent, explain the inclusion of models, as drawings were already within the scope of the commissioning rule.
26. Section 21(3) of the current Copyright Act 1994 added computer programs to the list of works covered by the commissioning rule. This was the result of the Industrial Property Advisory Committee recommending that first ownership of copyright in commissioned computer programs to be vested in the commissioning party.12 Section 21(3) additionally applies to diagrams, maps, charts, and plans. The inclusion of these types of graphic works, however, was carried over from the 1962 Act (NZ). The term "engraving" was already covered by the commissioning rule under the 1962 Act and its definition included all these additional terms.
27. The Copyright Act 1994 further included section 105(1) of the Act, with a similar provision in the UK legislation. Section 105(1) of the Act is a limited privacy right and provides a person commissioning the taking of a photograph or the making of a film for private and domestic purposes the right to restrain the use to which the copyright owner can put it. It recognises the private or domestic nature of many commissioned photographs and films, and the likelihood that many consumers will sign standard form contracts transferring their copyright to the photographer or filmmaker often without a full understanding of the implications for subsequent use of that work.
III. The Rationale Behind the Commissioning Rule
28. The evolved rationale of the commissioning rule was summarised by the Department of Justice in 1994:13
There are two reasons for the existence of the commissioning rule. One is that if a work is made pursuant to a commission and has been paid for, the commissioner should be entitled to copyright in the work. In many instances, the commissioner will often have directed or influenced the nature of the work created. The other rationale is that works such as photographs, paintings and even plans are frequently commissioned by members of the public for private or domestic purposes. These people will usually not appreciate the existence or the implications of copyright protection and would not be likely to bargain to obtain copyright.
29. The rule also reflects the economic rationale for copyright that it provides a return on investment. In addition, it has been argued that commissioners provide opportunities for creative works to be made which might not exist otherwise.14
30. The Ministry invites views on the rationale behind the commissioning rule.
B. International Approaches and Developments
31. The treatment of ownership of copyright in commissioned works varies across different countries. This section considers the position in a number of relevant jurisdictions.15
32. The United Kingdom (UK), Australia, Ireland, and Canada, have either amended or repealed their commissioning provision or are in the process of doing so. The scope of the commissioning rule in these jurisdictions is or was limited, as it previously only applied to photographs, portraits and engravings, and in some cases to film and/or sound recordings.16 The UK and Ireland have both repealed the commissioning rule, but their copyright legislation sets out similar protections for private commissioners of photographs and films such as provided by New Zealand's section 105. Australia's copyright legislation has a commissioning provision that applies to photographs for a private and domestic purpose, paintings or drawings of a portrait, and engravings. It vests copyright with the commissioner but allows the commissioned person to restrain uses not contemplated at the time of the agreement. In Canada, the commissioning rule currently applies to photographs, portraits and engravings. Canada, however, is in the process of amending its copyright legislation and has proposed to repeal the commissioning rule. Individuals who commission a photograph for personal or domestic purposes would be able to make personal and non-commercial uses of that photograph. In the United States (US) a commissioning provision applies to nine categories of works.
I. The United Kingdom
33. United Kingdom copyright legislation has provided the model for various copyright statutes in New Zealand, including the Copyright Acts of 1913, 1963 and 1994. It is therefore useful to review some of the key developments of the commissioning rule in the UK.
34. One of the early statutes that had a provision relating to first ownership of copyright in commissioned works was the Fine Arts Copyright Act 1862. It provided that the copyright in commissioned paintings, drawings and photographs belonged to the commissioner unless there was an agreement to the contrary. "It appears that the provision as to commissioned pictures was made to prevent the unauthorised copying of portraits."17
35. The Copyright Act 1911 (UK) expressly referred to portraits and provided that the commissioner of an engraving, photograph or portrait would be the owner of copyright in these works, subject to an agreement to the contrary.
36. In 1956, the UK enacted a new Copyright Act and added sound recordings to the list of commissioned works. It vested copyright ownership in the person who commissioned the taking of a photograph, a painting or drawing of a portrait, the making of an engraving or of a sound recording, subject to an agreement to the contrary. The rationale behind the 1956 provisions was to provide a measure of protection for the privacy of individuals.
37. Alternative approaches to balancing the interests of commissioners and authors were discussed in the UK as a result of the Whitford Committee Report.18 The majority of the Committee recommended that copyright in all commissioned works should belong to the author, subject to the commissioner having an exclusive licence for all purposes that could reasonably be said to have been within the contemplation of the parties, and the commissioner having the power to restrain any exploitation for other purposes against which he could reasonably take objection. The exclusive licence concept was not adopted as it was thought to introduce too much uncertainty.
38. The UK repealed the commissioning rule in 1988. Section 11(1) of the Copyright, Designs and Patents Act 1988 (UK) provides that the author of a work is the first owner of the copyright and no exception is provided for commissioned works. However, section 85 of the 1988 Act sets out the same rights of restraint for private commissioners of photographs and films that formed the model for New Zealand's section 105. During the House of Lords debates19 it was acknowledged that the "current law is anomalous" in the way that it treated different categories of work in different ways. Privacy concerns related particularly to photographs and films, whereas with paintings it was considered that the commissioner would usually be in possession of the physical object. In regard to section 85 of the 1988 Act it was also noted that there is a limit to the extent to which copyright law may be used to protect privacy. The practical impact on the reallocation of copyright ownership is limited as the commissioning rule had applied only to a narrow range of works.
II. Australia
39. Section 35(5) of the Copyright Act 1968 (Cth) provides that when a photograph for a private and domestic purpose, painting or drawing of a portrait or the making of an engraving is commissioned, the commissioner is the first owner of copyright. This position may be modified by agreement. Where the purpose for commissioning is made known to the author at the time of the agreement, the commissioner can restrain its use for any extraneous purpose. A private or domestic purpose is defined in section 35(7) of the 1968 Act as including a portrait of family members, wedding party or children. Sections 97(3) and 98(3) of the 1968 Act vest copyright in the commissioner in the case of commissioned sound recordings and cinematograph films.
40. Section 35(5) was amended in 1998 by the insertion of the words "for private or domestic purpose" after the word "photograph". The Senate Legal and Constitutional Legislation Committee recommended in its minority report section 35(5) of the Act to be amended to give commercial photographers first ownership in copyright. The Australian government accepted that an amendment of s 35(5) of the Act was desirable for commercial photographers, who had been seeking this reform for a number of years. Other works affected by the commissioning rule were not discussed.
III. Canada
41. Section 13(2) of the Copyright Act 1985 provides that a person commissioning a photograph, portrait or engraving is the first owner of copyright, unless there is a specific agreement to the contrary.
42. Canada is in the process of reforming its copyright law. In June 2005, Bill C-60, an Act to amend the Copyright Act, was introduced in Parliament. However, because of the early held election in January 2006, it will be necessary to introduce a new and possibly similar bill sometime after the election, which Cabinet will have to approve.
43. Bill C-60 proposed to repeal section 13(2) of the 1985 Act. First ownership of copyright in commissioned works would rest with the author. However, an individual who commissions, and pays for, a photograph for personal or domestic purposes would, subject to an agreement to the contrary, be able to make personal and non-commercial uses of that photograph.20 The Standing Committee on Canadian Heritage21concluded in its Interim Report on Copyright Reform22 that existing federal and provincial privacy legislation would best address the concerns of consumers who commission photographs for private or domestic purposes.
IV. Ireland
44. Section 23 of the Irish Copyright and Related Rights Act 2000 vests copyright primarily in the author. Where a work is commissioned, copyright remains with the author (and not the party commissioning and paying for the work), unless specifically assigned to the commissioning party.
45. However, section 114(1) gives the person who, for private and domestic purposes, commissions the taking of a photograph or the making of a film, the right not to have the work, or copies of the work, made available to the public.
46. Under section 10 of the repealed Copyright Act 1963 a person who commissioned the taking of a photograph, or the painting or drawing of a portrait, or the making of an engraving, and paid or agreed to pay for it, was considered the owner of copyright in that work. A similar right was provided to a person who commissioned the making of a sound recording or film.
V. The United States
47. Section 201(b) of the US Copyright Act 1976 provides that the author of a work will be the copyright owner, except where the work is "made for hire". In that case, the copyright owner is the employer or other person for whom the work was prepared, subject to agreement to the contrary. Section 101 of the copyright law defines a work "made for hire" as:
- a work prepared by an employee within the scope of his or her employment;
- a work specially ordered or commissioned for use as a contribution to a collective work (such as a magazine), as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.23
48. These nine categories of works to which the commissioning rule applies tend to relate to works done by freelance authors at the instance, direction, and risk of a publisher or producer, where it was argued that it would be unfair to allow such authors to terminate assignments of rights. Other exceptions (contributions to collective works, parts of motion pictures) were based on the fact that the resulting work involved numerous authors and that permitting terminations of grants of rights to such works would cause chaos. Commissioned photographs appear to most commonly come under the category of "contribution to a collective work", e.g. magazine or periodical.
C. Commissioned Photographs
49. Over the last several years, individuals and organisations in the photography industry have voiced their concerns relating to the commissioning rule as it applies to photographs. In 1959, the report of the Dalglish Committee, when reviewing the Copyright Act 1913, discussed and rejected a submission that would have limited commissioners' ownership of copyright in commissioned photographs. The Committee was of the view that a change in law could cause serious inconvenience to commissioners. For example, a commissioner who subsequently wished the commissioned photograph to be reproduced would be forced to go to the original photographer, who might refuse to permit any reproduction or it might prove difficult to trace the photographer. The Committee further argued that the agreed price for which professional photographers offer to do certain work is presumably calculated on the basis that they do not acquire copyright in the photograph. It also referred to the possibility of entering into an agreement reserving the copyright in their works and regarded the whole matter to be one of business arrangement.24
50. The Commerce Select Committee considered the issue in 1994 when it considered the current Act. It argued that granting ownership to the commissioner by default was necessary to protect the members of the public who commissioned works, such as family or wedding photographs. The Committee considered that professional photographers would have sufficient knowledge of copyright, and therefore more bargaining power, to negotiate with commissioners to have copyright in commissioned works assigned to them.25
I. The Key Issues
51. Professional photographers often derive their income or parts of it from taking photographs for commercial entities, for example publishing or advertising businesses. In many cases, the commercial entity will commission the photographer. Section 21(3) of the Act provides default copyright ownership to the commercial client. Advertising and illustrative photographers argue that the commissioning rule puts them in a weak position when negotiating with commissioners, such as large commercial clients.
52. In the absence of an agreement to the contrary, photographers being commissioned by commercial clients may not have any rights to restrain any subsequent use of their work and the commissioner will have unlimited use of their works. This applies irrespective of whether the purpose for commissioning has been made known to the photographer. However, photographers have submitted that, where a photograph has been commissioned for a particular purpose, that purpose may have determined the price but not any subsequent usage of the work.
Example
Section 21(3) of the Act dictates that an advertising company which commissions a photographer to take a photograph for an advertising campaign retains copyright in the photograph. This provision grants the advertising company the right to, inter alia, reproduce the photograph for any subsequent purposes. However, section 21(3) of the Act merely creates a default rule which can be overridden by an agreement to the contrary.
Question 1
What is the industry practice relating to commissions by commercial clients?
- Are most commissioned photographs commissioned by commercial or private clients?
- To what extent and in what way is copyright ownership of the photographs subject to contractual agreements?
- What is your view on, and experience of, subsequent use of commercially commissioned photographs? To what extent are commercially commissioned photographs subsequently used where the photographer is not the owner of copyright?
- Does the purpose for which a work is commissioned determine the price paid? Are subsequent uses of the photograph usually considered when negotiating the price?
53. By treating commissioned photographers differently from creators not covered by the commissioning rule, the rule may undervalue the creative talents of photographers. Equally, it has been argued that assigning copyright to the commissioner reflects the investment in the creation of the work and the commissioners' creative input into the creation of the work.
Question 2
From your experience, who has more creative input into the taking of a commissioned photograph: the commissioner or the photographer?
54. Any change in the commissioning rule may incur high compliance costs for commissioners, e.g. transaction costs to obtain permission to make subsequent use of the work may increase. For example, it may be difficult to locate the photographer or his or her successor in title.
55. Many photographs are commissioned for private or domestic purposes. Private or domestic purposes relate to non-commercial situations within the personal or domestic sphere. Such situations include, for example, graduation ceremonies, weddings and other special occasions, portraits of families, babies, and pets. Consumers who commission photographs for private or domestic purposes may have certain expectations of retaining copyright in those photographs, including the expectation to be able to subsequently use the commissioned photograph and to be asked for permission when others, including the photographer, may wish to use the photograph. They may also have insufficient knowledge or power to bargain with photographers about the issue of copyright. The commissioning rule is based on the notion that private commissioners usually do not appreciate the existence or the implications of copyright protection and would not be likely to bargain to obtain copyright. A change in the commissioning rule may, therefore, undermine private commissioners' expectations and put them in a weak position when negotiating the terms and conditions of the commissioning arrangement. The onus to negotiate the issue of copyright ownership would be shifted from the photographer to the private commissioner. However, a frequent use of standard form agreements, transferring copyright ownership to the photographer, may reflect that the default position is undermined by current practice. Also, section 105 of the Act provides some level of protection. Regardless of who owns copyright, those who commission photographic or cinematic works for domestic or private purposes can restrain some use to which the copyright owner might put it.
Example
Section 21(3) of the Act dictates that a couple who commission a photographer to take their wedding photographs retain copyright in those photographs. This rule grants the couple the right to, inter alia, restrain any other person, including the photographer, from using the photograph in a way that would infringe the couple's copyright in them. However, section 21(3) of the Act merely creates a default rule which can be overridden by an agreement to the contrary. In the case of the couple not being the owner of copyright in the wedding photographs, section 105 of the Act provides that they have the right to restrain uses and communication to the public of the commissioned wedding photographs. This means, for example, that the couple can restrain the copyright owner from publishing their wedding photographs in brochures or showing them in an exhibition.
Question 3
What is the current practice relating to commissions by private clients?
- To what extent, and in what way, is copyright ownership of privately commissioned photographs subject to contractual agreements?
- What is your view on, and experience of, subsequent use of privately commissioned photographs?
- Is the level of protection provided by section 105(1) of the Act appropriate? Please explain.
Question 4
Are there any other significant copyright issues relating to commissioned photographs, other than those identified above?
Question 5
Who should have ownership of photographs commissioned by commercial or private clients? Please explain.
II. Discussion
56. The commissioning rule possibly disadvantages professional photographers in the context of commissions by large commercial entities. Members of the photography industry have indicated that, in practice, photographers rarely contract out of the default position. Similarly, photographers argue that they are unfairly disadvantaged where a work is used for subsequent purposes but those uses are not reflected in the price paid. It is acknowledged that subsequent uses of commissioned works may be subject to an agreement between the photographer and the commissioner. However, this assumes that the photographer has sufficient bargaining power.
57. By providing copyright to the commissioner of a photograph, the default position also potentially undermines the creative talent of photographers. It is acknowledged that in many cases the commissioner may have creative input into the creation of the photograph by directing the outcome of the photograph. However, it will be the photographer who decides the composition, light, point of focus and other specific settings that make the taking of a photograph an act of artistic creativity.
58. A change of ownership rules relating to commissioned photographs may incur higher transaction costs for commissioners. However, these costs are not unique to commercial clients but are incurred by everyone who wishes to use copyrighted material. Publishing and advertising businesses may already have systems in place to obtain permission to use photographs in which they do not own copyright.
59. Provisions that limit subsequent use of privately commissioned photographs are designed to provide protection to private commissioners, but it is important to acknowledge significant private consumer interests. Given the private nature of the photographs taken, control over subsequent use is of key concern to private commissioners.
60. One way of acknowledging the issue of privacy is granting private commissioners first ownership of copyright in commissioned works and thus control over subsequent use of the works. This may reflect reasonable expectations of private commissioners to own copyright in their commissioned photographs and put the onus on the stronger party (the photographer) to obtain agreement to the contrary. Another way of acknowledging the private nature of a work is limiting certain secondary uses while granting ownership to the photographer. Section 105 (1) of the Act already provides some protection of the commissioner's privacy by limiting certain subsequent uses of privately commissioned photographs or films.
D. Other Works Affected by the Commissioning Rule
61. In addition to photographs, computer programs, paintings, drawings, diagrams, maps, charts, plans, engravings, models, sculptures, films, and sound recordings are covered by the commissioning rule. At this stage, is not clear whether individuals or industries have substantial issues with the commissioning rule relating to these types of work. The Ministry only has limited anecdotal evidence of concerns and can not easily draw from experiences in other jurisdictions, which take different approaches as already outlined in Section B above.26
62. The Ministry, therefore, invites submissions on any substantial issues relating to the commissioning rule as it applies to works other than photographs. Persons making submissions are particularly invited to provide information on the commissioning rule's relevance in practice, its effect on individuals and businesses, and the possible need for any change of the rule.
I. The Key Issues
63. The first point to consider is whether or not the commissioning rule should continue to apply to those categories of works referred to in paragraph 61. Its perceived advantages and disadvantages, its relevance and effect in practice are important issues to be taken into account. The issues raised in the context of commissioned photographs, as outlined in Section C above, may be of relevance for other types of commissioned works as well, in particular, the question of bargaining power, subsequent use of those works and the protection of privacy. However, other issues may be specific to the type of work.
64. The commissioning rule may create difficulties and uncertainty where several types of works are commissioned but different default ownership rules apply.
Example
Multimedia works are compilations and, therefore, considered literary works. Literary works are generally not covered by the commissioning rule. However, the commissioning rule would apply to a computer program that may underlie a multimedia work. This means that where a multimedia work is commissioned, including the writing of the computer program, the commissioner would, according to section 21(3) of the Act, be the copyright owner of the computer program driving the multimedia work, but not of the multimedia work itself.
Question 6
What are the advantages and disadvantages of the commissioning rule as it applies to works other than photographs?
Question 7
Does the commissioning rule reflect industry practice or does industry practice depart from the default position, and if so, in what way?
Question 8
How do industry and individuals deal with situations where several works are commissioned, but different default ownership rules apply?
Question 9
Does the commissioning rule cause uncertainty as to how to define ownership of works covered by the rule?
65. A second issue is whether or not works commissioned for private and domestic purposes should be treated differently from works commissioned for commercial purposes. There may be relevant similarities to commissioned photographs for private and domestic purposes, as outlined in paragraphs 55.
Question 10
What is the current practice relating to commissions by private clients?
- To what extent, and in what way, is copyright ownership of privately commissioned works subject to contractual agreements?
- What is your view on, and experience of, subsequent use of privately commissioned works?
66. Section 105(1) of the Act provides some protection of the commissioner's privacy by limiting certain subsequent uses of privately commissioned photographs or films where the commissioner is not the owner of the commissioned work (for example, because he or she has a signed a standard form contract transferring copyright to the author of the work). This provision recognises the personal or private nature of many photographs and films and the ease of making copies of those works publicly available. Similar privacy issues for consumers who commission works other than photographs and films for private and domestic purposes have not be brought to the Ministry's attention, but it welcomes submissions on this issue.
Question 11
Have there been any substantial privacy issues with privately commissioned works other than photographs or films which should be addressed by section 105(1) of the Act?
67. At present, there does not appear to be any need to extend the scope of the commissioning rule in section 21(3) of the Act to other works not currently covered. Clearly, the issue of extending the commissioning rule is only relevant if there is enough merit in general for this rule to continue to exist. Relevant types of work currently not covered by the commissioning rule include literary works (other than computer programs), dramatic and musical works such as works of dance, and other artistic works such as collages. The Ministry is not aware of any substantial problems in New Zealand resulting from the default rule in section 21(1) that the author is the first owner of copyright where these other types of work are commissioned. However, anecdotal evidence suggests that there is some confusion, particularly in the area of publishing among freelance writers, given that the commissioning rule does not apply to literary works.
68. It is important to bear in mind that the commissioning rule is an exception to the fundamental principle of copyright law set out in section 21(1). Any exception would, therefore, need to be carefully considered.
Question 12
Are there any reasons to extend section 21(3) of the Act to other categories of works?
Question 13
Are there any other significant issues, other than those identified above, relating to the commissioning of works other than photographs?
E. Broad Set of Options
69. Depending on the approach taken, there are several options:
Option 1
No amendments to sections 21(3) and 105(1) of the Act.
Option 2
Repeal section 21(3) of the Act. The author of any commissioned work is the first owner of copyright.
Section 105(1) of the Act continues to apply to photographs and films commissioned for private and domestic purposes, or be extended to certain other types of works (yet to be specified).27
Option 3
Amend the scope of works in section 21(3) of the Act. The scope of works included in the commissioning rule is narrowed or expanded and the commissioner of those types of work (yet to be specified) is the first owner of copyright in the work.
Section 105(1) of the Act continues to apply to photographs and films commissioned for private and domestic purposes, or be extended to certain other types of works (yet to be specified).
Option 4
Limit the purpose of commission in section 21(3) of the Act. The author of certain types of works, status quo or yet to be specified, commissioned for private or domestic purposes is the first owner of copyright.
Section 105(1) of the Act continues to apply to photographs and films commissioned for private and domestic purposes or be extended to certain other works (yet to be specified).
70. Any change to the commissioning rule would not be retroactive and, therefore, not affect works that have already been commissioned or created.
Question 14
What are your views on the options presented and why? Which of the above options do you support and why? Do you suggest any other options?