Background statement on Federal Court of Appeal Ruling in Favour of NGC in SAA dispute

Ottawa - April 3, 2013

Background:

Canadian artists are served by two pieces of complementary legislation: the Status of the Artist Act, a labour law that covers artists’ professional services and terms of engagement, and the Copyright Act, which applies to all matters of copyright, including the "exhibition right."

CARFAC (Canadian Artists’ Representation/le Front des artistes canadiens) and RAAV (Regroupement des artistes en arts visuels du Québec) are professional associations representing Canadian artists.

Under the Status of the Artist Act (SAA) CARFAC and RAAV are entitled to bargain with the National Gallery of Canada (NGC) on behalf of artists. 

The copyright system is different because it deals with artists’ property with a distinct legal framework.  CARFAC/RAAV do not have a collective mandate to deal with copyright. The NGC negotiates copyright, including exhibition rights fees, directly with artists, their estates, or their designated copyright collectives, such as SODRAC, CARCC, etc.

In 2004, the NGC began negotiating with CARFAC/RAAV under the SAA to craft the first-ever collective agreement for the visual arts between a federal producer and Canadian visual artists. These ongoing, important and welcome negotiations under the SAA would formalize for the first time the way in which the NGC compensates artists for professional services, including installing exhibitions, producing new work, giving lectures, guided tours, attending media events and other services, and develop standard professional service fee payment schedules.

The negotiations stalled, however, over the issue of whether or not these labour negotiations should also include matters relating to copyright. The NGC took the position that issues of copyright could only be validly negotiated under, and could only be regulated by, the Copyright Act. CARFAC/RAAV took the position that issues of copyright relating to the “exhibition right” and others should be negotiated as labour issues under the SAA.

In 2008, CARFAC/RAAV attempted to resolve this dispute by filing a complaint with the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT). In that complaint, CARFAC/RAAV argued that the NGC was negotiating in bad faith by refusing to discuss copyright matters. Four years later, in early 2012, CAPPRT upheld CARFAC/RAAV’s complaint.

The NGC has always taken the position that concluding a collective agreement for the purpose of artists’ labour, working conditions, fees, salaries and the like was important and necessary. The NGC remained convinced, despite the CAPPRT ruling, that it would be detrimental to the artists to negotiate copyright issues under a labour law. In an attempt to resolve this issue and proceed with negotiations toward a collective agreement, the NGC sought legal clarity by taking the dispute to the Federal Court of Appeal of Canada.

In its 4 March 2013 majority decision, the Federal Court of Appeal of Canada overturned the ruling of CAPPRT (Decision 53) and clarified the copyright issue. The Federal Court of Appeal ruled that granting of copyright, including the 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 the SAA.

The judgment reads: “A copyright is not a ‘service’ under any acceptation, be it at civil law, at common law, under the Copyright Act, or according to the plain meaning of the word be it in French or English.”

The judgment further reads: “The issue in this case is whether the National Gallery’s refusal to negotiate a scale agreement pertaining to matters relating to copyright – specifically minimum fees with respect to the use of existing works – can support the Tribunal’s finding that it failed to bargain in good faith. In my view it cannot, as the Tribunal had no authority to compel such negotiations, let alone deal with them.”

Nonetheless, the NGC’s negotiations with CARFAC/RAAV for a first scale agreement under the SAA have progressed well during this dispute. It is the NGC’s hope that the negotiations will be finalized soon.

The NGC has always and will continue to comply fully with the Copyright Act and pays artists exhibition rights, which it negotiates directly with artists or their assigned collectives.

-30-