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Background on CARFAC-RAAV’s negotiations with the National Gallery of Canada

In 1967, the National Gallery of Canada (NGC) sent a letter to artists who were participating in a major exhibition of Canadian art, and asked for permission to make reproductions of their work. They did not offer to pay the artists for the exhibition or the reproductions, but the gallery was planning to sell those reproductions for their own profit. Artist Jack Chambers wrote to the other artists in the show, calling for a united refusal to work for free. They succeeded, and it started a national debate between artists and museums about fair payment. A year later, CARFAC (then known as Canadian Artists’ Representation) was born.

Forty-five years later, CARFAC is still at odds with the National Gallery. Artists are fighting for the right to negotiate mandatory minimum artist fees, in accordance with our certification under the Status of the Artist Act. On March 4th, the Federal Court of Appeal handed down a ruling that CARFAC’s certification does not allow us to negotiate binding minimum copyright fees on behalf of Canadian artists exhibiting at the National Gallery.

Why is CARFAC negotiating on behalf of artists?

While CARFAC is not a formal trade union, we negotiate working conditions for visual artists, and recommend a minimum standard of fees that artists receive when their work is exhibited or reproduced. We work with two pieces of legislation that give us the tools to do this work: the Copyright Act and the Status of the Artist Act (SAA).

For years, CARFAC negotiated the payment of artist fees with public art museums, and over time it became accepted in principle and practice. In 1988, we convinced the government to add the Exhibition Right to the Copyright Act. This right allows artists to require payment when their work is, “presented at a public exhibition, for a purpose other than sale or hire.”Canada is unique in having this kind of benefit in its Copyright law, and countless artists have been paid when their work is shown in a public museum or artist-run centre as a result.

In 1980, Canada signed the UNESCO declaration calling to improve the financial situation of artists. As a direct result, the federal Status of the Artist Act was born. The Act recognizes the important role of the artist in society, and promotes an understanding of the unique way in which artists typically work, as self-employed creators. The Act allows professional artist associations, such as CARFAC and RAAV to be certified to negotiate collective agreements with federal institutions, which cover things like payment and working conditions. Once an agreement is approved by their members, it is legally binding.

CARFAC-RAAV and the National Gallery of Canada

Negotiations with the National Gallery started in 2004 and for two years, we worked together on standard contracts that the gallery would use when they work with visual artists. Over this time, several discussions about copyright fees also took place. Suddenly, in 2007 the gallery told us they did not recognize our right to negotiate minimum copyright fees for visual artists, claiming that there is a conflict between the Copyright Act and the Status of the Artist Act. This was in contradiction with a previous decision from the tribunal that oversees the SAA (CAPPRT) in which the complementary nature of the two laws was clearly established. In 2008, we filed a complaint with CAPPRT against the gallery for negotiating in bad faith, in an effort to force them back to the negotiating table.

CARFAC and RAAV have always wanted to reach a mutually beneficial agreement with the gallery. We tried to bring them back to the table to negotiate copyright many times before, and even after, filing our complaint. An unsuccessful mediation session was held in 2009, and following this, labour lawyer David Yazbeck helped us revive our case before CAPPRT, on a pro-bono basis. The hearing took place over the course of a year, and in early 2012, the Tribunal found the gallery guilty of bargaining in bad faith. Shortly after, the gallery asked for a judicial review with the Federal Court of Appeal where CAPPRT’s decision was overturned by a split vote of two to one.

The issue and the impasse

In essence, the National Gallery believes that the Copyright Act, which protects the rights of individual artists, trumps the Status of the Arts Act, which allows artists to organize collectively. They believe that because CARFAC and RAAV do not have copyright assignments from all individual Canadian artists, we do not have the right to negotiate minimum fees for their work. They argue that artists have a right to accept less than the minimum fee we are attempting to negotiate for them. We argue that under SAA, we are able to negotiate minimum working conditions for artists, which includes minimum fees for copyright. Artists may negotiate higher fees, on an individual basis, if they wish to do so. What we are asking for is similar to a minimum wage for use of an artist’s work.

Most working relationships between artists and museums are based on the use of the artist’s copyrighted work. While artists spend a great deal of time preparing for exhibitions, this is only a small part of what they offer and are paid for. Contracts usually lay out how the artworks will be used, and what the artist will be paid for that use. Taking copyright out of this equation is like the equivalent of an employer telling a union that they refuse to negotiate salaries, but will discuss vacation pay.

Most agreements bargained under SAA are concluded within two years, and most of them include payments for copyright royalties. According to CAPPRT, it would be unusual and inconsistent not to include copyright in an agreement negotiated under SAA.

The Federal Court of Appeal decision

Three federal judges ruled on whether CAPPRT was correct in their decision that the gallery bargained in bad faith, and whether or not CARFAC-RAAC could negotiate copyright in a scale agreement. The dissenting judge agreed with CARFAC that there is nothing unusual about us wanting to “negotiate the minimum fees and conditions upon which their members will provide services, including licenses to use existing works.” He also said that it is natural to assume that “granting a license to use a work is a service provided by an artist to a producer.” The other two judges disagreed: “Requiring artists to charge a minimum royalty for the use of their work bares consequences… since it means that the artists concerned cannot ask for less, even if this is the only way in which they can usefully exploit their copyright.”

Next steps

We are now considering our options, which may include an appeal to the Supreme Court of Canada. Even if it turns out that artists should, legally, have a right to be paid less, CARFAC and RAAV will continue to fight to ensure this is not a choice that artists are pressured to make.