AIPA NEWS: MAY 2006
After 12 years the New Zealand government has finally decided to review the “Commissioning Rule” – the glaring error in our copyright law that encourages the exploitation of local artists.
Section 21(3) of the 1994 Copyright Act states “where a person commissions, and pays 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.”
This gives the commissioning party copyright to an artist’s work by default, and as the copyright holder they have the exclusive right to determine how the creator’s work is used. For commercial artists, like professional photographers, the loss of copyright can have serious financial and career limiting repercussions.
For example, a commissioner can tell a photographer that they only want to use an image in a certain media, territory, or time period, but as soon as the photo is taken they own the copyright and can use it wherever, whenever, and in any media they choose. Many instances have been reported where the client has told an artist that the usage will be minimal in order to obtain a reduced creative fee, but then the work has appeared in media far in excess of the initial specified use.
Once they have the copyright the commissioner can also licence the work to other parties – effectively competing against the original creator of the work. International publishing companies often on-sell editorial imagery in order to increase their profits.
The law in its current state places New Zealand photographers at a distinct disadvantage in many ways.
Pro photographers have learnt the only viable option is to issue an agreement (such as the AIPA terms and conditions) that negates the Commissioning Rule so they retain the copyright to their own creations. However, many photographers new to the industry are simply unaware of the Commissioning Rule and/or its implications and only learn after they've been taken advantage of. In certain sectors of the market (such as editorial) some clients don’t allow artists to contract out of the Commissioning Rule, stating that the law entitles them to the copyright regardless of how much, or how little, they are willing to pay. Young artists who should be protected by the law are the most at risk.
The AIPA stance on this issue is clear. The Commissioning Rule must be repealed so that all freelance artists retain copyright for their work, regardless of whether they are commissioned or not. By doing so the government will bring our copyright law back in line with international convention. It’s not unreasonable for us to expect the same basic rights as our colleagues in Australia, the UK, USA and Europe.
This is a common sense decision, but as past reviews have shown us that doesn’t mean it will actually happen. Unless photographers like you, whether a full-time professional or not, voice your concern and contempt for the Commissioning Rule then the law is unlikely to change.
So what can you do?
You can support the AIPA submission. Email the following message to copyright@aipa.org.nz:
“I support OPTION 2: Repeal section 21(3) of the Act so that the author of any commissioned work is the first owner of copyright” (Insert your name and date)
In order to keep up the pressure on our government download an already formatted letter from the AIPA website and send copies to your local MP, and Prime Minister Helen Clark.
You could also download the discussion document from the Ministry of Economic Development website (www.med.govt.nz) and write your own submission.
Your immediate action is vital - submissions close on May 31 st. It could be 12 more years before there is another chance to repeal the Commissioning Rule so please TAKE ACTION NOW!
Aaron K
AIPA President
