Thursday September 7, 2017

Copyright Law: Should Canada Adopt Photoshop Disclaimers?

Authored by: Marc J. Belliveau Posted in: Intellectual Property

This fall the Federal government will undertake a mandated review of the Copyright Act.  The statute has a provision that requires it be reviewed every five years to keep up with technological advances in the digital world and to address emerging intellectual property issues. 

There is potential for push back from content owners and collectives regarding fair dealing “user” rights that the Supreme Court of Canada have enshrined into Canadian copyright law.  More generally, there will be an opportunity for numerous policy stakeholders to present arguments and justifications for new amendments to our copyright laws that will benefit Canadian consumers and creators.

Consumer Protection

A new consumer protection law in France coming into effect on October 1, 2017, might inspire a push for a similar law in Canada – applicable to advertisers, commercial photographers and the publishing industry. The new law, although more focused on public health issues than copyright per se, imposes a legal obligation on advertisers to affix a notice (“photo retouched” or “touched-up photography”) if a photo of a model has been altered using computer software such as Photoshop.

The stated purpose of the new French law is to combat eating disorders, such as anorexia, by formally disclaiming retouched body image photographs. The express notice requirement intends to inform the public that the photo has been retouched. The disclaimer must be “in an accessible, readable and clearly differentiated form in the advertising or promotional message.” It’s not clear whether the notice should be as prominent as those displayed on cigarette packages, but issues such as size and placement will likely soon be clarified.

The new public health obligation is applicable to all photographs for commercial use of models inserted in advertising messages distributed in advertising displays (e.g. newspapers, magazines, posters, billboards) and in the media (e.g. websites). Oddly, television ads are not subject to this obligation. A violation of this new rule is punishable by a fine of 35,500 Euros (roughly $55,000 CDN) and that fixed minimum amount can be increased to up to 30% of the advertising expenditures related to the impugned photograph.

The wording of the new law suggests that only photo-editing concerning the body shape of models (slimmed down or thickened silhouette) is subject to the disclaimer requirement, while other Photoshop modifications such as altering skin tone, hair colour or wrinkles, are unaffected. 

Canadian Perspectives

In Canada, advertising guidelines are established in the Canadian Code of Advertising Standards published by Advertising Standards Canada, a self-regulating organization, and enforced based on consumer complaints. Nothing in the Code explicitly addresses the use of photo-shopped models and the public health concerns mentioned above.

The Competition Bureau has the mandate to prosecute false and misleading advertising under the Competition Act, but the unhealthy use of software to alter the shape of models appears to have not yet hit its radar screen.

Aside from potential liability issues for advertisers and publishers under such a regime, the Photoshop disclaimer also raises potential violations of photographers’ moral rights in their reproduced works. The Copyright Act protects a photographer’s honour and reputation from prejudice arising from the distortion, mutilation or modification of their work, or where the photograph is used in association with a product, service, cause or institution.

As mentioned at the outset, the copyright law review process about to commence in Canada may be the appropriate venue for advertising stakeholders and public health experts to push for a Photoshop disclaimer like the one enacted in France. Such an initiative would represent a concrete step towards improving issues of distorted body images in Canada by preventing the promotion of unattainable ideals of beauty and tackling eating disorders among young Canadians.

If you would like more information on intellectual property matters, please contact Marc Belliveau.

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