The Supreme Court of Canada in Ottawa / photo by Flickr user detsang
There was a flurry of media attention this summer when CARFAC and RAAV—two non-profits representing Canadian artists—got the go-ahead from the Supreme Court of Canada to try and make the case for setting mandatory minimum artist fees at the National Gallery of Canada. While the development is an exciting one for many in the Canadian art scene, it is also just the latest step in a complicated situation. Here are five things many may not know about CARFAC and RAAV’s dispute with the National Gallery of Canada.
1. Exhibition fees in Canada fall under copyright law—yes, copyright law—and under copyright, fees are to be negotiated individually.
On June 8, 1988, many artists across Canada rejoiced when the Copyright Act was amended to include an Exhibition Right. As The Right of Public Presentation – A Guide to the Exhibition Right by Wanda Noel explains, this was considered a triumph as it meant that (under certain conditions) each time an artwork was publicly exhibited, its creator was entitled to a royalty fee. Under the Copyright Act, fees are to be negotiated directly with individual copyright holders (usually artists, as creators of the work) or a person authorized in writing to negotiate individual rights on the copyright holder’s behalf.
2. Fees for artists’ professional services, and other related matters, fall under the Status of the Artist Act. This act states that mandatory minimum fees for such services and matters can be negotiated collectively by artist associations.
In 1992, the Canadian government adopted the Status of the Artist Act, which was designed to cover artists’ professional services and terms of engagement. Under the SAA, Canadian artists can be represented by a professional association that negotiates terms of compensation on their behalf with federal “producers” who commission artists’ services. CARFAC and RAAV are authorized to act as an association in this regard and negotiate “scale agreements” for provision of artist services.
3. The Supreme Court appeal against the National Gallery regarding certain mandatory minimum fees—and the NGC’s reasoning for refusing to grant them so far—hinges on this conflict in law between individual and collective negotiation.
In 2007, the National Gallery—which has refused requests for an interview with Canadian Art on this topic—received a legal opinion stating that it did not need to bargain in regards to mandatory minimum exhibition fees given that such fees fell under Copyright Act (individual fee negotiation) rather than the Status of the Artist Act (collective minimum fee negotiation). This is what sparked ensuing lawsuits and legal actions between the NGC and CARFAC. (See timeline below.) In March 2013, when the Federal Court ruled in the NGC’s favour, the gallery issued a release stating it was “very happy” with the decision and said 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.” It changed its tune when the Supreme Court granted CARFAC and RAAV the opportunity to appeal in August 2013. An gallery release following that decision states, “By granting CARFAC/RAAV’s application, the Supreme Court considers that this case raises an issue of public importance that goes beyond the immediate interests of the parties to the case. The National Gallery of Canada welcomes the clarity that the Supreme Court of Canada will bring to this matter.”
4. Not all organizations that represent artists in Canada agree that mandatory minimum National Gallery fees are a good idea.
SODRAC, a reproduction rights society, has long sided with the National Gallery of Canada; it believes mandatory minimum artist fees are not a good idea. Though SODRAC representatives declined to be interviewed for this article, the society has retained intervener status at certain points in the legal proceedings between the NGC and artist organizations. In an April 2012 e-newsletter, SODRAC informed its members that “SODRAC took part in [a tribunal hearing] in order to defend the principle that it alone can negotiate on its members’ behalf as regards tariffs and the conditions for use of its members’ works.” That e-newsletter added that agreements regarding minimum fees “do not apply to artists who elect under the Copyright Act to transfer the exclusive management of their copyrights to a collective management society such as SODRAC, which customarily negotiates the conditions for use of your works by museums and other users.”
5. Many galleries in Canada, including the NGC, voluntarily pay many of CARFAC’s suggested minimum fees already. But CARFAC believes that setting mandatory—and legally binding—minimum fees with the NGC is still important, because artists have so few reliable income streams.
Artist Karl Beveridge has been involved in CARFAC and RAAV’s negotiations with the NGC for roughly 10 years. He notes that “there are not many ways artists can actively improve their livelihoods. We can lobby the Canada Council, but lobbying is a ball game. And you can’t control the market—that is, whether your work will sell or not. So setting mandatory minimum fees are the only way we have that we can negotiate an improvement in our livelihoods.” Beveridge also says that if CARFAC and RAAV win the case, it would set an important national precedent, prompting major regional museums to follow suit.
Timeline: Artist Fees in Canada
1968 – Canadian Artists’ Representation (the predecessor of today’s CARFAC) distributes its first suggested fee schedule to Canadian galleries.
June 8, 1988 – Copyright Act amended to include Exhibition Right.
June 23, 1992 – Status of the Artist Act adopted, allowing designated artists’ organizations to negotiate mandatory minimum fees for artist services.
December 2003 – Negotiations begin between CARFAC, RAAV and the National Gallery of Canada on setting mandatory minimum exhibition and artist fees.
July 2007 – National Gallery of Canada receives legal opinion stating that exhibition fees, since they fall under the Copyright Act, should be negotiated individually, not collectively.
January 29, 2008 – The National Gallery advises CARFAC and RAAV that “In the present state of our laws, your certificate to bargain collectively is limited to services and cannot automatically extend to Copyright matters.”
April 22, 2008 – CARFAC and RAAV file a complaint with the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT) that the National Gallery of Canada failed to bargain in good faith.
October 26 and 27, 2010 – CAPPRT hears initial arguments in in dispute between CARFAC, RAAV and the National Gallery of Canada.
February 2012 – CAPPRT orders the National Gallery of Canada to restart negotiations with CARFAC and RAAV.
September 5, 2012 – The Federal Court of Appeal hears arguments from the National Gallery of Canada appealing the CAPPRT decision.
March 4, 2013 – The Federal Court of Appeal finds that the NGC did not bargain in bad faith and that CARFAC and RAAV are not allowed to negotiate minimum binding copyright fees on a collective basis.
May 3, 2013 – CARFAC and RAAV apply for leave to appeal the Federal Court of Appeal decision.
August 15, 2013 – The Supreme Court of Canada grants CARFAC and RAAV permission to appeal the Federal Court decision.
May 14, 2014 – Projected date for Supreme Court of Canada appeal hearing.
