Copyright Fees: another riot in Canada?

June 25, 2011

What if museums had to keep paying fees to display art that they have acquired and art that they have on loan?

Canadian Artists’ Representation/Le Front des Artistes Canadiens (CARFAC) and the Regroupement des Artistes en Arts Visuels du Québec (RAAV), are currently seeking to establish copyright fees for any works by Canadian artists displayed or owned by the National Gallery. This movement rests upon two unique pieces of Canadian legislation regarding rights of copyright owners and collective bargaining.

Canadian artists, as owners of the copyright in the works they have created, enjoy mostly the same rights as American artists do under 17 USC 106. Since 1988, when The Copyright Amendments Bill C-60 was passed, they have enjoyed an additional and unique right to exhibit. Any work created by a Canadian artist after 7 June 1988 cannot be displayed without the copyright holder’s permission. This limits the concept known as the First Sale Doctrine under US law (17 USC 109), which allows purchasers of works to publicly display their lawful copies. In effect, the Canadian right could mean that a fee must be paid to the artist each time a work is exhibited. However, Canadian artists have traditionally accepted a lump sum payment upon sale of the work to a museum to cover future exhibition.

Earlier this year, the Canadian Museums Association sought the abolition of the exhibition right altogether. This is perhaps why the artist groups are now seeking to enforce their rights by way of their collective bargaining power. Enacted in 1992, The Status of the Artist Act [SAA] gives Canadian artists another unique right over and above their US counterparts – the right to collectively bargain. It “recognizes the right of certified groups to bargain collectively on work issues with Canadian ‘federal producers’, a definition that the museum meets.” CARFAC and RAAV are certified under the Act.

The National Gallery is arguing that the collective bargaining power was intended to help artists address services, not intellectual property. This may explain why visual artists have not traditionally wielded this collective bargaining power, unlike performing artists in industries with more services. These negotiations have been underway for awhile, and in 2009 the National Gallery released a statement that, “The breakdown in negotiations with the CARFAC/RAAV under the Status of the Artist Act results from CARFAC/RAAV’s interest in concluding agreement on copyright issues outside the boundaries of their certification.”

How should Canadian law weigh the rights of artists against public interest in the traditional institution of the museum?

Read the article at The Art Newspaper