The National Gallery of Canada (NGC) is very happy with the Federal Court of Appeal decision which confirms that the NGC has negotiated in good faith, all along, with CARFAC/RAAV under the Status of the Artist Act (SAA). In its decision, March 4, 2013, the Federal Court ended a lengthy legal dispute between the parties.
The Federal Court has clarified that granting of copyright, including exhibition right, shall not be considered a “service” and that negotiation of this matter falls outside the certification of CARFAC/RAAV and the purview of SAA. The negotiations under SAA will cover terms of engagement for artists’ services. The negotiations for a historic first scale agreement for the visual arts sector under SAA have progressed very well and are now nearly complete.
It is important to underline that Canadian artists are served by two pieces of complementary legislation: the Status of the Artist Act (SAA) which covers artists’ professional services and terms of engagement; and the Copyright Act, which applies to all matters of copyright, including “exhibition right”.
Status of the Artist Act (SAA): Under the SAA, Canadian artists can be represented by a professional association who acts as a union, negotiating terms of compensation on their behalf with federal “producers” who commission artists’ services. It is a labour law. CARFAC and RAAV applied for and were granted legal certification to bargain, on behalf of the visual arts sectors in Canada and Quebec, respectively. Under SAA, the NGC is considered a federal “producer” when it hires artists. CARFAC and RAAV’s certifications entitle them to represent all Canadian and Quebec artists. The NGC was served with notice to bargain by CARFAC/RAAV, who elected to negotiate jointly, in 2004. A great deal of research, legal analysis, definition of terms and court intervention has been necessary over the past eight years given the lack of precedent specific to the visual arts (as distinct from the music, writers and actors guilds, etc) and the complexities arising from the use of existing works already covered by copyright in operations typical for an art museum. While the commissioning of new artworks by the NGC represents a very small number of transactions, the business of presenting contemporary art has become increasingly complex and artists are routinely hired for the planning, fabrication and installation phases, media, interviews, tours, openings and other events. There was never any question that SAA’s scope should cover the development of formal, standardized contracts and rates of pay for these professional services - but the question of whether or not professional services could also include matters relating to copyright, a broad and complex area of compensation, eventually required clarification by the Federal Court of Appeal.
The Copyright Act: Existing artworks are subject to copyright and these rights belong to the creator or their estate. Copyright is property. The copyright holder may manage this directly or assign, in writing, management to a copyright collective. The NGC routinely negotiates with copyright collectives including SODRAC and CARCC (the copyright arm of CARFAC) but many artists choose not to belong to collectives and the NGC may negotiate with artists or their estates directly. The recommended copyright fee schedules issued by CARCC and RAAV, and periodically updated over the years, have successfully provided guidance to the sector but are non-binding and subject to the agreement of the parties. From a practical standpoint, CARCC and RAAV can continue to issue these schedules for their own members, and as a form of advocacy for the rest of the sector, however, negotiation of binding, sector-wide copyright schedules is not legally possible for CARFAC or RAAV within the limits of their certification under SAA.The Gallery will continue to negotiate copyright directly with copyright holders or their assigned collectives.