There seems to be a lot of misinformation and speculation about the actual regulation of aerial drone photography and video online – especially with crazy interactions between photographers and pedestrians like this grabbing headlines.

In this article DIYP interviews both Transport Canada and the Office of the Privacy Commissioner of Canada to find out what legal requirements are in place for both the recreational and commercial use of unmanned aerial vehicles (UAVs) and what people, places or things can and cannot be legally photographed or filmed from the air in Canada.

If you are an aerial photographer in Canada – you might not like some of the answers from the Canadian authorities – but don’t shoot the messenger. If you don’t live in Canada, I think you will still find the Canadian regulations very interesting.

Aerial Drone Photography Regulations

Every country seems to have different degrees of regulation of unmanned aerial vehicles (aka “UAVs” aka “drones”, aka “quadcopters” aka “multicopters” aka “flying menace of doom”).

If you live in the UK, or plan on operating a UAV in the UK, DIYP recently featured the Civil Aviation Authority’s regulations for small unmanned aircraft operations within London and other towns and cities.

We hope to post a similar interview with the Federal Aviation Administration (FAA) in the US shortly.

But for now, we are very interested to find out what is your opinion of the Canadian regulations – please leave a comment below.

The following questions and answers are as received from Transport Canada and The Office of the Privacy Commissioner of Canada.

DIYP Interview With Transport Canada and Office of the Privacy Commissioner of Canada Regarding Aerial Drone Photography

Question 1:

What is the Transport Canada regulatory definition of a remote controlled quad-copter or multi-copter flown for the specific purpose of recording still photography or video (commonly referred to as a “drone”)? Size? Weight? Method of remote control?

Commercial vs. recreational use?

Answer 1:

Transport Canada (TC) does not differentiate these aircraft based on whether it can take photographs or not. Instead the delineation of model aircraft and unmanned air vehicle (UAV) is based on the purpose of the operations, i.e. recreational or non-recreational.

Model aircraft and Unmanned Air Vehicles (UAV) both meet the definition of “aircraft” in the Aeronautics Act.

In the Canadian Aviation Regulations, a model aircraft is defined as an aircraft when the total weight of which does not exceed 35 kg (77.2 pounds), is mechanically driven or launched into flight for recreational purposes and is not designed to carry persons or other living creatures. Once the aircraft no longer meets this definition it is considered a UAV. As an example, once it is no longer used for recreational purposes (i.e. not flown for pleasure or relaxation) it will be regulated as a UAV.

The operation of any UAV, independent of their size, weight or method of remote control, requires a Special Flight Operations Certificate (SFOC).

TC avoids using the term drone to describe an UAV. While the term drone is commonly used to describe a UAV, the term is not used by the UAV industry as it can have very different meanings and/or connotations.

Question 2:

Is there a regulatory difference between traditional Radio Controlled model airplanes and helicopters flown for pleasure versus remote controlled quad-copters or multi-copters flown for the specific purpose of taking photographs or recording video?

Answer 2:

No. As described previously, the differentiation between model aircraft and UAVs is based on the purpose of the operation, not whether the UAV is capable of taking pictures or videos. CAR 602.45 was put in place to allow sporting enthusiasts to operate model aircraft for personal enjoyment. This same regulation applies to the use of kites. The applicable regulation can be found here:

http://laws-lois.justice.gc.ca/eng/regulations/SOR-96-433/page-179.html#docCont

Question 3:

What are the Transport Canada operational restrictions for a remote controlled quad-copter or multi-copter flown for the specific purpose of recording still photography or video (as defined in question 1)? Maximum Altitude? Minimum Altitude? Clearance from objects? Distance from operator? Autonomous flight – ie. flight between pre-defined GPS locations? Use of First Person View (FPV) systems? Minimum distance from airports?

Flight over public property? Flight over private property?Flight over populated areas?

Flight over crowds of people or individuals? Flight over built up areas – ie. cities, factories, urban areas? Flight over areas with a high volume of low flying human-carrying aircraft – ie. Niagara Falls or Grand Canyon?

Answer 3:

For model aircraft the CARs specify that: “No person shall fly a model aircraft or a kite or launch a model rocket or a rocket of a type used in a fireworks display into cloud or in a manner that is or is likely to be hazardous to aviation safety.”

For UAV operations, operational restrictions and limitations are contained within the Special Flight Operations Certificate (SFOC) which must be obtained prior to conducting operations. SFOCs are processed on a case by case basis and will provide specific operating conditions such as maximum altitudes, clearance from persons and property, operating areas, coordination with Air Traffic Services, etc.

The CARs currently require anyone conducting UAV operations to obtain and comply with the provisions of an SFOC. An individual assessment of the associated risks is conducted for each operation before a certificate is issued. A SFOC can only be issued once the certificate applicant demonstrates that the risks associated with the operation of the UAV will be managed to an acceptable level. It is essential that the certificate holder be aware of the responsibility to ensure that the UAV operation is conducted in such a way that the safety of persons and property on the ground and other airspace users is not jeopardized.

Of note, the use of autonomous UAVs, which are those UAVs that do not permit human intervention, are prohibited in Canada.

Question 4:

Are there any restrictions on what can be photographed or filmed from an aerial remote controlled quad-copter or multi-copter? Public property? Private property? Private installations – ie. factories, plants, industry, buildings, homes etc. Public installations – ie. roads, bridges, power plants, ports, etc.? Identifiable people in public spaces (ie. a park or a beach)? Identifiable people in private spaces (ie. a backyard or privately owned land)? Unidentifiable people?

Answer 4:

Transport Canada’s mandate does not include addressing privacy issues for any aviation activity. For privacy issues, please contact the Office of the Privacy Commissioner of Canada.

Editor’s Note: This question was posed to the Office of the Privacy Commissioner of Canada who’s mandate is to oversee compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA), Canada’s private sector privacy law. However, the Office refused to directly answer the question, although they were able to provide the following key points:

Generally speaking, under PIPEDA, consent is required for the collection, use and disclosure of personal information in the course of commercial activities.

PIPEDA does not apply to personal information collected, used or disclosed for journalistic, artistic or literary purposes.

If the collection of personal information is used for commercial purposes of any kind, PIPEDA would generally apply and informed consent must be obtained. There are always exceptions and our Office would examine each complaint on a case by case basis.

Depending on the specific circumstances, a commercial photographer may or may not be able to rely on the journalistic or artistic exemptions.

Given our role, we cannot make pronouncements with respect to legalities without having examined a particular situation in detail, for example, in the context of a complaint which could be brought to our office for investigation. As you can imagine, each and every situation is different and each needs to be looked at on a case-by-case basis.

From our point of view, it would not be a bad practice for a business to consult with legal counsel to ensure its activities are congruent with the various laws which may apply to that business. You have asked whether PIPEDA would require a commercial photographer to seek consent for the collection, use and disclosure of photographs of private property. Again, we would reiterate that we look at issues on a case-by-case basis and consider a number of factors. We would have to look at the specific circumstances to determine whether or not a particular practice was compliant with PIPEDA. We have identified for you the exemptions and some of the issues at play. Again, a business that wishes to ensure it is compliant with PIPEDA may wish to consult with legal counsel to ensure its activities are congruent with the various laws which may apply to that business. Legal counsel would be in a position to examine the specific circumstances and advise appropriately.

When asked to clarify if the Personal Information Protection and Electronic Documents Act applied to private property or only to individuals, the Office of the Privacy Commissioner of Canada responded with: Taking photographs of private property could potentially involve the collection of personal information. Again, it would depend on the specific context and the issue would need to be assessed on a case-by-case basis.

Unfortunately, the information provided by the Privacy Commissioner isn’t exactly helpful to photographers who want to avoid a confrontation with a belligerent security guard or overzealous police officer. If you are a Canadian photographer that would like a real answer to what should be a simple question, I suggest that you contact the Office of the Privacy Commissioner of Canada yourself – click here.

Question 5:

If a quad-copter or multi-copter operator launches and retrieves their aerial vehicle from public property (ie. they are not trespassing on the ground), is permission from property owners required to record aerial photography or video of private property?

Answer 5:

The issuance of an SFOC does not relieve the UAV operator from compliance with other relevant acts, regulations, laws from any level of government. Again, as per the previous answer, specific issue regarding privacy should be addressed to the Office of the Privacy Commissioner.

Editor’s Note: This question was posed to the Office of the Privacy Commissioner of Canada. However, the Office again refused to directly answer the question. Please refer to the points provided in Question 4.

Question 6:

Can quad-copter or multi-copter operators photograph or record video of private property that would not normally be visible from the ground?

For example:

A private business such as an industrial plant that has erected fences to restrict view from ground level? A private residence such as a condominium that has glass windows so that the interior is not visible from the ground, but can been see through a window from an aerial vantage point?

Answer 6:

For privacy issues, please contact the Office of the Privacy Commissioner of Canada.

Editor’s Note: Once again, this question was posed to the Office of the Privacy Commissioner of Canada who refused provide a direct answer. Please refer to the points provided in Question 4. On the point of photographing the interior of private property through a window, the Office of the Privacy Commissioner did offer the following:

When it comes to other laws that could cover the issues you mentioned, note that our Office can really only speak to the requirements of the laws we enforce – PIPEDA and the Privacy Act (which applies to the federal public sector). You would need to consult other experts with respect to the requirements of the Criminal Code or provincial laws.

Question 7:

Can local authorities (police, city council, conservation authorities etc.) legally restrict the use of remote controlled quad-copter or multi-copters from specific areas?

For example, in the US the National Park Service recently banned the use of quad-copters / multi-copters from Yosemite National Park.

Answer 7:

Yes, land use authorities can control the use of their land. Such authorities may restrict the take-off and landing of any aircraft including model aircraft or UAVs. However, these authorities do not have jurisdiction over the airspace above the city, town, park, etc. Under the Aeronautics Act, only the Minister of Transport has authority to restrict airspace.

Question 8:

If a recreational user and a commercial user are operating the exact same equipment, are there different regulations for recreational versus commercial use? Why?

Answer 8:

Yes, the use of a UAV requires the issuance of a SFOC whereas a model aircraft does not.

As the UAV operator is flying for some form of personal or professional gain, they are held to a higher standard and a greater level of scrutiny is required for the operation to ensure that safety of persons and property on the ground and of other airspace users is maintained. This same philosophy holds true for other recreation and commercial activities. As an analogy, the car and driver of a taxi require different regulations, licenses and insurances than would the driver of a personal vehicle using the same type of car, driving on the same road.

Question 9:

What is the Transport Canada regulatory definition between commercial and recreational use?

Answer 9:

The Aeronautics Act defines commercial use as the use of aircraft for hire or reward, meaning any payment, consideration, gratuity or benefit, directly or indirectly charged, demanded, received or collected by any person for the use of an aircraft.

When an operation is no longer conducted purely for hobby, enjoyment or relaxation, it is no longer considered recreational. Such activities could include, but are not be limited to, commercial aerial photography, law enforcement, academic research, geomatic surveying, agriculture surveying, or training operations.

Question 10:

Would the following four examples be classified as recreational or commercial use?

An amateur photographer / videographer recording aerial photography and video that they publish on a personal website, blog or social media.

A professional photographer / videographer recording aerial photography / video published on their business website or blog or social media, but they do not directly earn income from the published content.

A professional freelance photographer / videographer recording aerial photography / video that they sell to a third party at a later date (ie there is no specific purchase agreement in place when the photos / video were recorded).

A professional photographer / videographer hired to record aerial photography / video under a paid agreement.

Answer 10:

The first example could be considered either recreational or commercial based on the purpose of the individuals website, blog, etc.

The last three examples would all be considered commercial activities and would require the UAV operator to apply for and receive a SFOC prior to conducting operations.

To determine if the intent of a specific operation is considered recreational or not and whether an SFOC is required, we recommend contacting the regional office in the Transport Canada region in which they intend to operate.

http://www.tc.gc.ca/eng/civilaviation/opssvs/regions-139.htm

Question 11:

What specific permits or permission are required for the commercial use of a remote controlled quad-copter or multi-copter flown for the specific purpose of recording still photography or video? How can these be obtained? What information is required? Is there an application fee? How long does the approval process take?

Answer 11:

To conduct UAV operations, the UAV operator must obtain an SFOC from Transport Canada. Please refer to the following page for further details.

http://www.tc.gc.ca/eng/civilaviation/standards/general-recavi-uav-2265.htm

There are currently no fees charged for an SFOC application.

The regulatory standard states that applications must be received at least 20 working days prior to the date of the proposed operation, and this date assumes that the application is complete. However, at present, Transport Canada Regional Offices are receiving an ever increasing number of requests and many applications are taking considerably longer to process.

Question 12:

What are the possible penalties for the commercial use of a remote controlled quad-copter or multi-copter flown for the specific purpose of recording still photography or video operated without the required permits?

Answer 12:

For model aircraft, the only rule that applies prohibits to fly a model aircraft into cloud or in a manner that is or is likely to be hazardous to aviation safety. Violation of this provision is a summary conviction offence.

In accordance with the Canadian Aviation Regulations (CARs), for the operation of UAV without an SFOC, a maximum penalty of $5,000 for an individual or $25,000 for a corporation can be assessed.

Question 13:

Are the penalties for the commercial use of remote controlled quad-copters or multi-copters regularly enforced? What would trigger an enforcement investigation? Can you provide an example(s) of an operator that has successfully been fined/convicted for the commercial use of a quad-copter or multi-copter?

Answer 13:

When TC becomes aware of a violation, it is directed towards our enforcement branch and appropriate action is taken. Please see response provided above for the potential consequences.

Question 14:

Are operators of remote controlled quad-copters or multi-copters required to carry insurance for: Recreational use? Commercial use?

Answer 14:

To obtain an SFOC, the UAV operator must subscribe to liability insurance to the levels stipulated in Section 606.02 of the CARs. Any such insurance policy must cover aviation activities.

The Model Aeronautics Association of Canada (MAAC) provides insurance to their members.

Question 15:

Is there anything else that professional photographers or videographers should know about the operation of remote controlled quad-copters or multi-copters?

Answer 15:

On TC’s website there is a document entitled: “Staff Instructions for the Review and Processing of an Application for a Special Flight Operations Certificate for the Operation of an Unmanned Air Vehicle” which may be found at:

http://www.tc.gc.ca/eng/civilaviation/opssvs/managementservices-referencecentre-documents-600-623-001-972.htm.

Potential UAV operators are encouraged to review this document so they are aware of what is required to conduct UAV operations in Canada.

If the UAV is equipped with a laser, then a Notice of Proposal to Conduct Outdoor Laser Operations(s) will also need to be submitted to TC, which will then be forwarded to Health Canada for an assessment.

http://www.tc.gc.ca/wwwdocs/Forms/26-0754_0910-01_BO.pdf

Please visit our website for additional information:

https://www.tc.gc.ca/eng/civilaviation/standards/general-recavi-brochures-uav-2270.htm

Conclusion

Canadian regulation of model aircraft and Unmanned Aerial Vehicles (UAVs) seems relatively reasonable to me.

Essentially, for purely recreational purposes a drone is simply considered a model aircraft – whether or not it carries a camera.

However, for any sort of commercial activity, it would be considered a UAV which requires a Special Flight Operations Certificate (SFOC).

Of course, a big question is how difficult it actually is to obtain a Special Flight Operations Certificate (SFOC) from Transport Canada and what kind of operational restrictions and limitations will be included. On of the big stumbling blocks could be the requirement to carry commercial aviation insurance, which is likely difficult to find and expensive to carry.

It is also of particular interest that the use of autonomous UAVs, which are those UAVs that do not permit human intervention, are prohibited in Canada.

I would like to sincerely thank Transport Canada for their detailed response to this issue of growing importance.

As for the Office of The Privacy Commissioner of Canada…I think I’ll just leave it up to you guys to discuss their responses in the comments.

What Do You Think Of Canadian Regulation of Aerial Drone Photography?

Are the Canadian regulations reasonable?

Too lenient? Too restrictive?

If you are a Canadian commercial photographer currently operating a UAV – do you intend on obtaining a SFOC for every flight?

What is your interpretation of the responses from the Office of the Privacy Commissioner?

How is the regulation of aerial drone photography different in your country?

Leave a comment below and let us know what you think!