Page:The copyright act, 1911, annotated.djvu/146

  After the new Act comes into operation the period of fifty years from making will be substituted and will apply both to old and new works, and the publication or non-publication of the photograph will not affect the term of copyright. After the fifty years has expired there will be no proprietary right of any kind in the photograph, even although unpublished. In the case of an unpublished photograph the protection depends on whether the author has the necessary qualification of nationality or residence. In the case of a published photograph the protection or continuation of protection depends on whether it has been first published within the territorial limits previously defined.

The Act sets up a fictitious author, and thereby gets rid of the difficulty of ascertaining in the case of photographs who it was who actually exposed the plate, or, as the author was defined in one case, who was the effective cause of the picture which was produced.

The owner of the negative when the photograph is taken is the first owner of the copyright, except where "the negative was ordered by some other person and was made for valuable consideration in pursuance of that order". This probably leaves the law very much as it is at present with regard to the copyright and ownership of the negative in the case of photographs taken b}' a professional photographer. In the ordinary transaction between a professional photographer and his customer the presumption will be as before, that the copyright vests in the customer ; but that, by the custom of the trade, the property in the negative remains with the photographer. The presumption that copyright vests in a person who sits to a photographer may be rebutted where the circumstances show that the photographer was not commissioned to take the photograph, but took it on his own behalf,