Towards A Fair Deal: Recommended Action
Previous: Part III - Canadian Solutions?
In the Introduction and Part I of this paper we discussed the justifications for copyright and illustrated the types of copyright contracting practices in the marketplace that undermine the benefits authors are supposed to derive from copyright legislation. In Part II, we looked at European legal provisions which underscore the primacy of authors’ rights, and in Part III we examined certain domestic legal mechanisms that are to some extent available to some Canadian creators, such as recourse to legal doctrines found in Anglo-Canadian case law, participation in collective societies, and status of the artist legislation.
There may be no single best way to improve the situation of creators in Canada, but there is at least one obvious way and a number of other avenues that should be explored. As well as a mandatory labour relations regime for creators outside the jurisdiction of the labour boards established by the federal Status of the Artist Act and Quebec’s 1987 act, a variety of measures should be implemented. Certainly the need to address the economic needs of creators is irrefutable, particularly in light of the fact that self-employment of creators has been rising at one of the highest rates among OECD countries.186 Canada has made an important beginning with its status of the artist legislation providing for labour relations regimes despite the need to address the difficulties affecting its effectiveness where it already exists and the need to extend it to creators working in activities under provincial jurisdictions outside Quebec.187
In addition to status of the artist legislation with a framework for mandatory labour relations, the legal provisions protecting creators in European jurisdictions provide many referential sources for Canadian legislators to consider. In this regard we are encouraged by the observation of Moyse quoted in Part I to think that there may be legislative changes to improve the position of creators, because “the Canadian Parliament is more inclined than any other legislature to stay attuned to external developments in order to mould its own rules.”188 The European concern with assisting authors when they are negotiating with contractual partners who generally have superior bargaining strength is encapsulated by Von Lewinski in the following comment:
In order to reduce the negative effects for authors of the typical imbalance residing in such contractual agreements, European legislators often have introduced protective, mandatory legal provisions that limit the freedom of contract and, at the same time, strengthen the author’s position. Other means of strengthening the author’s position vis-à-vis that of a publisher, producer or other exploiting business include a broad array of statutory remuneration rights to be administered by collecting societies; such rights that are subject to collective administration are usually more beneficial to authors than full exclusive rights which have to be licensed under conditions that are too often dictated by the more powerful party.189
These ideas should not be alien or novel in Canada, given the influence and impact of droit d’auteur in Canadian copyright law and Canada’s long history of adherence to droit d’auteur principles in international copyright law.
Canada has already implemented two instances of remuneration rights, one with respect to performance in public of a published sound recording or its telecommunication to the public for the “equitable remuneration” of performers as well as producers of sound recordings, and the other with respect to copying for private use for the remuneration of authors (composers and lyricists), performers and also producers of sound recordings of musical works that is funded by a levy on blank audiotapes and other audio recording media. A statutory retransmission regime also exists although few creators benefit from it.
With respect to legal provisions limiting freedom of contract, Canada’s Copyright Act could be amended to:
All of these provisions are justifiable either as a means of clarifying issues of ownership or control or as a means of correcting “market failure”, where the contract reached by the contracting parties is not mutually beneficial and one party is forced to accept patently unfair terms. Adopting them or similar provisions as well as adopting new rights, such as droit de suite with respect to artistic works and moral rights for all performers, and extending rental rights to all authors and performers, would be an initiative in keeping with harmonizing Canada’s law with like-minded jurisdictions, a goal commended by the Supreme Court of Canada in light of the on-going globalization of cultural industries,190 but something that has yet to be done by Canadian courts specifically in favour of creators.
In rendering its decision in CCH v. Law Society of Upper Canada, the Supreme Court of Canada took measures to harmonize the interests of users under Canadian copyright law with user interests under American copyright law. It did this by aligning the factors to be considered when determining whether dealing is ‘fair’ under a fair dealing exception with the statutory factors to be considered in a fair use determination under U.S. law. We wonder if it would have come to the same conclusion if Canadian creators’ rights had been harmonized in other respects with their European counterparts or if at least more heed was paid to the difference in interests between rightsholders who are natural persons and large corporate rightsholders.
Neither the differences in the legal regimes of the European jurisdictions discussed nor the constitutional issues associated with the Canadian federal government’s authority to legislate in respect of “Copyrights”191 vis-à-vis provincial jurisdiction over “Property and Civil Rights in the Province”192 should present immutable barriers for Canada’s policymakers to consider and employ provisions similar to the ones we have discussed. Of course, for such provisions to qualify constitutionally they would need to be implemented in a way such that in “pith and substance” they remain part of, and sufficiently integrated in, what is already a constitutionally valid legislative scheme193 - in this instance, the Copyright Act, which is designed to provide creators with rights in respect of their original works, subject to certain statutory exceptions. A consideration of the context in which the Copyright Act was enacted and the reasons that creators are vested with rights at all should provide ample justification for such amendments and, as Beaulieu and Lorinc remind us, there is neither determinism nor inevitability in copyright reform; only policy choices.194
Any proposal for copyright reform should take into consideration its effect on contractual relationships between creators and their producers or distributors, including practices with respect to moral rights waivers and levels of compensation on a cultural sector-by-sector basis and, in the visual arts sector, practices concerning the exhibition right in publicly-funded government and non-government institutions. In addition to recommendations with respect to providing education and information on the exhibition right for artistic works to both public exhibitors and artists, the consultants engaged by Canadian Heritage to study the exhibition right recommended that the department “should consider developing a funding condition on their grant application forms that would require respect for the ER as a prerequisite to support.”195 Requirements for royalty payments already exist with respect to some federal and provincial grants to book publishers and similar provisions could ensure that the contracts between artists and public galleries would contain a provision with payment for the exhibition right. Consideration should be given to extending the principle to government aid to producers in other sectors as well; for example, existing aid to magazines could be tied to levels of payment for the writers and illustrators they engage.
We are discouraged by the glacial pace of copyright reform in Canada and the failure to implement even those revisions that few oppose. Creators caught in crossfire between users and large corporate producers are, in our view, well advised to look to solutions outside as well as inside the Copyright Act. We refer to government grants, taxation policy, employment insurance, guaranteed income for senior creators and insolvency legislation, as well as status of the artist legislation that will bring those producers who have not already accepted scale agreements to the bargaining table and strengthen the bargaining rights of creators where such agreements already exist.
As Dietz has said, and we have quoted in Part II above, simply granting more and more rights to a creator under copyright law is “far from a sufficient answer” where what is given by the legislators “is often taken from him at a ridiculous consideration” by his contractual partner. With this in mind, Canadian policymakers should also look to improve upon existing status of the artist legislation so that creators and producers actually have to negotiate and, under some circumstances, to submit their differences to arbitration. Canada’s status of the artist legislation may be unique, but some elements of it are shared with the new German law that looks to negotiated industry agreements to establish common standards of fairness. However, the following comment by Von Lewinski in a comparison of the rights of audiovisual performers in the United States and Europe is also instructive:
The protection of performers in the United States is mainly based on individual contracts and collective bargaining agreements where conditions are laid down which may, to some extent, even secure a higher level of protection than what is secured in European countries. The key to such success is certainly the strength of the US guilds which do not find any comparable counterpart in Europe. Performers in Europe are protected on the basis of economic rights – both exclusive rights and statutory remuneration rights – and moral rights. Due to a lack of sufficiently strong performers’ unions in Europe, their bargaining position is usually quite weak; the law envisages improving this situation by protective provisions of contract law and by the extension of tasks for collecting societies.196
In Canada, as in Europe, contract negotiations by collective societies are also part of the solution to imbalance between creators and producers. In the words of Dietz:
…we all know the deficiencies of the contractual regime in the field of rights management by individual contracts, in particular also in view of many unclarified questions in case of transborder use and conflict of laws. Whether and how far authors and performers (and other neighbouring rights owners) can share in income from exploitation of works or performances or other protected matter, is often a question of bargaining power or often its lack. When such administration of rights (be it legal remuneration rights) is entrusted to collecting societies, there is at least a probability, backed by traditional distribution rules or, partly, also by legal provisions, that authors and performers get an adequate share.197
This would appear to be borne out by the experience of the Nordic countries where creators have a long tradition of acting collectively and undoubtedly enjoy better conditions than their colleagues in most other countries. This is attributable in large part, though not entirely, to the negotiation of standard contracts between creators’ organizations and publishers’ organizations.198 Jan Gehlin, a Swedish judge and author, has written about the position of creators in Sweden:
…the last decades have witnessed a profound change in the artist’s situation, thanks to artists’ trade union-type efforts and self help. And in this change Swedish authors have played a leading role. Where the authors themselves are concerned, one could even almost speak of a revolution. Acting methodically and purposively, they have demanded that society as a whole, and especially their own contracting opposite numbers, shall regard their organization as a trade union, with the same rights to negotiate, sign collective agreements and take industrial action as any other trade union representing wage-earners.199
It is also noteworthy that the new German Law to strengthen the contractual position of authors and performers uses, as a measure of fairness of remuneration, the standards negotiated between associations of creators and associations of users of works or individual users. We note too, in a number of countries, that equitable remuneration is negotiated between such associations in connection with a levy.
So it seems that negotiation between creators’ organizations and producers’ organizations is a common thread that links Canadian status of the artist legislation with the new German law, with collective bargaining in the Nordic countries and elsewhere, and even with negotiation-based levies in some countries. The result in most instances other than levies will be scale or minimum terms agreements. Legislation does not need to provide complete solutions to address the power imbalance between creators and producers and cannot be expected to do so, but it is our view that the law should at least open the door for negotiation between creators and producers and, where necessary, for mediation and compulsory arbitration. It is also our view that this will not happen in Canada for most creators’ organizations without effective status of the artist legislation that will force producers to the bargaining table or keep them there, and that advocating such legislation must be a priority for creators and their organizations.
While the cultural industries are responsible for a significant portion of our economy and to a large degree for our cultural identity, the evidence is clear that it is difficult, often impossible, for creators to earn a decent living in Canada through their art alone. Creators are key to a vibrant and flourishing culture, and if their economic situation is a real concern to our society, then alternatives such as we have discussed in this paper must be explored and implemented. We submit that the contribution of Canadian creators merits our collective efforts to ensure them, in the words of Paul Siren and Gratien Gélinas in the foreword to their 1986 task force report on the The Status of the Artist, an “equitable and just place in our society”.
The authors wish to thank Maryse Beaulieufor her report “Comparative Study: Contractual Practices and Copyright (July 25, 2005) which was prepared as part of this project, and Fernande Ouellet for her 2005 report on current contract issues for artists in Europe.
1. A.Dietz, “Amendment of German Copyright Law in Order to Strengthen the Contractual Position of Authors and Performers” (2002) 33 IIC 828 at 841-842.
2. R.S.C. 1985, c. C-42.
3. Hill Strategies Research Inc., “A Statistical Profile of Artists in Canada Based on the 2001 Census,” Statistical insights on the arts, v.3, n.1 (September 2004) at 2-3. In which, artists are referred to as those Canadians 15 or older reporting employment or self-employment earnings in any of the following nine occupation groups: actors; artisans and craftspersons; conductors, composers and arrangers; dancers; musicians and singers; other performers; painters, sculptors and other visual artists; producers, directors, choreographers and related occupations; and writers. Hill Strategies Research Inc. notes that the earnings statistics it reports include wages, salaries and net self-employment earnings, but exclude government transfers, investment income and pension income. Moreover it notes that the earnings statistics include amounts received from all employment in 2000, not just the position at which the respondent worked the most hours.
4. Ibid. at 15.
5. Ibid. at 5.
6. Ibid. at 15.
7. Quill and Quire survey, September 1999.
8. Information provided by the American Federation of Musicians, Canada.
9. The Status of the Artist in Ontario, Summary of Consultations, (Ontario Ministry of Culture and Communication, 1992) at 3.
10. Ibid.
11. Canadian Professional Writers Survey, a profile of the freelance writing sector in Canada, May 2006, Quantum Communications.
12. Ibid. at 30.
13. Pour Mieux Vivre, (Quebec: Ministry of Culture and Communications, 2004) at 10-11. It should be noted that since 1995, Quebec creators other than performers have had an advantage over creators elsewhere in Canada because of a tax deduction for income from copyright up to $30,000, and recently a similar benefit has been extended to performers and income averaging introduced for creators with higher incomes.
14. Ibid. at 3.
15. G. D’Agostino, “FREELANCE AUTHORS FOR FREE: Globalization of Publishing, Convergence of Copyright Contracts and Divergence of Judicial Reasoning”, http://www.copyright.bbk.ac.uk/contents/publications/workshops/theme2/agostino.pdf at 2. We note with interest emerging models of digital distribution of works which would appear to provide authors with the lion’s share of revenue generated thereby. See for example, Boing Boing’s new ‘Digital Emporium’ http://www.boingboing.net/2006/09/18/introducing_the_boin.html .
16. Maryse Beaulieu and John Lorinc, “CCC-DAMI© Research Project on The Working Conditions of Creators in Quebec and Canada” (February 2005), http://www.creatorscopyright.ca/documents/lorinc-beaulieu.html at 24 – 49 [Beaulieu and Lorinc].
17. Supporting Culture and Innovation: Report on the Provisions and Operation of the Copyright Act, (Ottawa: Industry Canada, 2002) at 2 [Supporting Culture and Innovation].
18. Théberge v. Galerie d’Art duPetit Champlain inc., 2002 SCC 34 at para. 31 [Théberge].
19. Ibid.
20. CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13. CJ McLachlin stating at para 12: “The exceptions to copyright infringement, perhaps more properly understood as users' rights, are set out in ss. 29 and 30 of the Act.”
21. Teresa Scassa, “Interests in the Balance” in Michael Geist ed. In the Public Interest: The Future of Canadian Copyright Law (Toronto: Irwin Law, 2005) at 52-53.
22. For a discussion of the difficulties in capturing the number of “artists” in Canada see supra note 3 at 3.
23. P. Bernt Hugenholtz, “THE GREAT COPYRIGHT ROBBERY: Rights allocation in a digital environment” (Paper prepared for A Free Information Ecology in a Digital Environment Conference, NYU School of Law, March 31 – April 2, 2000), http://www.ivir.nl/publications/hugenholtz/PBH-Ecology.doc.
24. Jane C. Ginsburg, "The Concept of Authorship in Comparative Copyright Law" (January 10, 2003) at 4. Columbia Law School, Pub. Law Research Paper No. 03-51. Available at SSRN: http://ssrn.com/abstract=368481 or DOI:10.2139/ssrn.368481.
25. In this regard see Maryse Beaulieu, “Comparative Study: Contractual Practices and Copyright, July 25, 2005 (unpublished).
26. Supra note 24 at 3.
27. This will be rectified for audio performers when Canada implements the WIPO Performances and Phonograms Treaty, concluded in 1996 and signed by Canada in 1997.
28. In both the European Union and the United States the basic term of copyright is now life of the author plus 70 years measuring from the end of the year of death, through respective passage of Council Directive 93/98/EEC harmonizing the term of protection of copyright and certain related rights in 1993 and the Sonny Bono Copyright Term Extension in the United States in 1998.
29. W.Cornish, “The Author as Risk-Sharer”, 15th Annual Horace S.Manges Lecture, Columbia Law School: March 2002, http://www.oiprc.ox.ac.uk/EJWP0304.pdf [Cornish].
30. However, scholar Jane Ginsburg has made a noteworthy argument that both traditions were marked at an early stage by both a recognition of personal rights springing from the act of creation as well as the utilitarian motivation of advancing public instruction. See J. Ginsburg, “A Tale of Two Copyrights” in B. Sherman and A. Strowel, eds., Of Authors and Origins: Essays on Copyright Law (New York: Oxford University Press, 1994) at 134 – 135.
31. See for example Feist Publications Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991) at para 19. For a contrary characterization, see Eldred v. Ashcroft, 537 U. S. 186 (2003) at 21-22.
32. D. Vaver, “The Copyright Mixture in a Mixed Legal System: Fit for Human Consumption?” vol 5.2 Electronic Journal of Comparative Law, (May 2001), http://www.ejcl.org/52/art52-3.html.
33. In particular a portion of the Second Treatise of Government, chap.V, “Of Property”: “Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his. Whatsoever then he removes out of the state that nature hath provided, and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men: for this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good, left in common for others.
34. P.Gaudrat, “Legislation versus Technology: is the need for Copyright Legislation diminishing?” (Paper prepared for Management and Legitimate Use of Intellectual Property Conference, July 10, 2000) at 45.
35. D. Gervais & E. Judge, Intellectual Property: The Law in Canada (Toronto: Thomson Canada Limited, 2005) at 10-11.
36. Théberge supra note 18 at para 116, Gonthier for the minority citing P. Moyse, "La nature du droit d'auteur: droit de propriété ou monopole?" (1998) 43 McGill L.J. 507 at 562.
37. Interestingly, the Supreme Court of Canada took this position notwithstanding the fact that it would be another couple of decades before Parliament codified moral rights in the Copyright Act.
38. Royal Commission on Patents, Copyright, Trademarks and Industrial Design: Report on Copyright (Ottawa: Queen’s Printer and Controller of Stationery, 1957).
39. Ibid. at 9.
40. Ibid.
41. Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886, 828 U.N.T.S. 221, as last revised 24 July 1971, http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html.
42. Ibid.
43. Ibid.
44. P.Drahos, “The Universality of Intellectual Property Rights: Origins and Development”, http://www.wipo.int/tk/en/hr/paneldiscussion/papers/pdf/drahos.pdf.
45. Supra note 32.
46. http://www.unhchr.ch/html/menu3/b/a_cescr.htm.
47. Article 27(2) “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is author. Available at: http://www.un.org/Overview/rights.html
48. Supra note 46.
49. L. Bently, Between a Rock and a Hard Place: The Problems Facing Freelance Creators in the UK Media Market Place (London: Institute of Employment Rights, 2002) at 11.
50. In 1998, following amendments of the Copyright Act introducing some rights for performers, Canada finally signed and ratified the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, usually referred to as the Rome Convention, which had been drawn up in 1961 and gave minimal protection to performers of musical works as well as to phonogram producers and broadcasters.
51. Eric J. Schwartz in P.Geller, ed., International Copyright Law and Practice (New York: Matthew Bender, 2005) para 7[1][b][ii], USA-123 [International Copyright Law].
52. http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm
53. 2004 CanLII 32254 (ON C.A.) at para 51.
54. See generally Beaulieu and Lorinc, supra note 16.
55. Ibid. at 38.
56. Heather Robertson v. The Thomson Corporation, Thomson Canada Limited, Thomson Affiliates, Information Access Company and Bell Globemedia Publishing Inc., 2006 SCC 43, judgment delivered on October 12, 2006.
57. The Strategic Review Group, Study of the Exhibition Right, November 2000, Canadian Heritage, at iii.
58. Ibid. at 25.
59. Ibid. at 26.
60. Ibid. at 43-44.
61. Darlene C. Chisholm, “Profit-sharing Versus Fixed Payment Contracts: Evidence from the Motion Picture Industry”, (1997)13 The Journal of law, Economics & Organization 169.
62. Silke von Lewinski, “The Protection of Performers in the Audiovisual Field in Europe and the United States”, Creators’ Rights in the Information Society, ALAI, Budapest 2003, at 883.
63. A. Dietz in International Copyright Law, supra note 51 at GER-56-57.
64. Ibid. at GER-55.
65. Ibid. at GER-65.
66. A. Lucas and P. Kamina in International Copyright Law, supra note 51 at FRA-54-58.
67. Art. L. 131-3(1), Law No. 92-597 of July 1, 1992 as cited by A. Lucas and P. Kamina, ibid.
68. Ibid. at FRA-63.
69. Supra note 63 at GER-58.
70. Loi relative au droit d’auteur et aux droits voisins June 30, 1994, Art. 3(1)(3).
71. Act No. 2121/1993 sets out the following interpretive rules concerning copyright contracts as described by I. Stamatoudi in International Copyright Law at para 4[2][c], GRE-23: “If the contract does not provide whether the assignment or licence is exclusive or non-exclusive, it is presumed that it is non-exclusive; If the contract does not fix the duration of rights that it transfers and nothing else derives from business usage, this duration is limited to five years; If the contract does not fix the geographic reach of rights that it transfers, this reach is limited to rights effective within the country where the contract was concluded; If the contract does not fix the means of exploitation for which it transfers rights, these means are limited to those necessary for the fulfillment of the aims of the contract. The Contract may not transfer all rights in all future works. Nor may it transfer rights with regard to means of exploitation unknown at the time of the transfer.
72. Ley de Propiedad Intelectual, Art. 43 as cited by A. Bercovitz and G. Bercovitz in International Copyright Law supra note 51 at para 4[2][b], SPA-34.
73. P. Bernt Hugenholtz and Lucie M.C.R. Guibault, Study on the Conditions Applicable to Contracts relating to Intellectual Property in the European Union, Final Report, Institute for Information Law, Amsterdam, The Netherlands, May 2002 [Hugenholtz].
74. Supra note 63 at GER-58, and Dr. Alberto Musso in International Copyright Law, supra note 51 at ITA-43-44.
75. District Court of Amsterdam, 24 September 1997 (De Volkskrant) in Informatierecht, AMI 1997, at 194, as cited by H.C. Jehoram in International Copyright Law, supra note 51 at NETH 35.
76. Article 2(2) of the Dutch Copyright Act 1912.
77. Hugenholtz, supra note 72.
78. Ibid. at 51.
79. Ibid. at 97.
80. Ibid. at 110 - 111
81. Ibid. at 89, 110.
82. Ibid. at 60.
83. Ibid. at 72-73.
84. Ibid. at 83-84.
85. Ibid. at 99.
86. Law No. 92-597 of July 1, 1992 as cited by A. Lucas and P. Kamina supra note 66 at FRA-75.
87. Supra note 63 at GER-67.
88. Supra note 25 at 17.
89. Dr. Alberto Musso in International Copyright Law, supra note 51 at ITA-65.
90. Article L. 131-4, supra note 66 at FRA-70.
91. Ibid.
92. Article L. 131-6 of the I.P. Code, ibid.
93. Ibid. at FRA-71. See also Hugenholtz, supra note 73 at 71-72.
94. Ibid. at FRA-75.
95. Ibid. at FRA-76.
96. Supra note 72 at para 4[3][a], SPA-37.
97. Ibid.
98. Hugenholtz, supra note 73 at 34.
99. A. Strowel in International Copyright Law, supra note 51 at BEL-36, and Dr. J. Barta and Dr. R. Markiewicz in International Copyright Law, supra note 51 at POL-29.
100. Hugenholtz, supra note 73 at 82.
101. Law to Strengthen the Contractual Position of Authors and Performing Artists of March 22, 2002, amending the Copyright Law of September 9, 1965, as last amended by Article 16 of the Law of December 13, 2001.
102. Supra note 1 at 832.
103. K.Gutsche, “New Copyright Contract Legislation in Germany: Rules on Equitable Remuneration Provide ‘Just Rewards’ to Authors and Performers” [2003] E.I.P.R. 366 at 367.
104. The following is the text of Section 11, with the italicized portion representing the new language provided by the Amendment: “Copyright shall protect the author with respect to his intellectual and personal relationship with his work, and also with respect to utilization of his work. At the same time it serves to secure an equitable remuneration for utilization of his work.” Supra note 1 at 834.
105. As translated by Cornish supra note 29.
106. Ibid.
107. Ibid.
108. A. Dietz, unpublished Dec 2005 presentation to Franco-German conference, Paris.
109. Hugenholtz, supra note 73 at 36.
110. A. Dietz in International Copyright Law, supra note 51 at GER-56-57. See also Hugenholtz, supra note 73 at 85.
111. Hugenholtz, supra note 73 at 43.
112. Ibid. at125.
113. Ibid. at 74.
114. Ibid. at 100-101.
115. Ibid. at 101.
116. Ibid. at 43, 85 and 116 See also A. Dietz in International Copyright Law, supra note 51 at GER-68
117. Hugenholtz, supra note 73 at 74.
118. Ibid. at 100 and 125.
119. A. Dietz in International Copyright Law, supra note 51 at GER-68.
120. Jan Gehlin, The Swedish Writer and His Rights, The Swedish Institute, revised edition 1980, at 15, 45.
121. A Shortcut to Writers’ Rights, A Brief Overview of the Norwegian System, 2001, at 7, 33.
122. Ibid. at 33.
123. Ibid.
124. “Authors right situation in Sweden, in general and specifically for journalist”, undated handout from the Swedish Union of Journalists.
125. Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art
126. Ibid., Preamble, recital no. 4.
127. Carola Streul, Droit de Suite Management in the EU, June 2004, EVA (representing European collective societies for the visual works), at 9 [Streul].
128. Alexander James Weatherall, Harmonizing the Droit de Suite; a legal and economic analysis of the EC Directive and an overview of the recent literature, Hamburg 2003, www.bepress.com/gwp/default/vol2003/ISC1/ent22 at 11 [Weatherall].
129. Clare McAndrew and Lorna Dallas-Conte, Implementing Droit de Suite (artists’ resale right) in England, The Arts Council of England, undated (researched 2000-2001), www.artscouncil.org.uk/documents/325.pdf at 11.
130. Streul, supra note 127 at 13.
131. Weatherall, supra note 128 at 22.
132. Bernt Hugenholz, “The Future of Copyright Levies in the Digital Environment”, Willem Wanrooij, “Remuneration Systems for Private Copying in Europe”, and Vincent Salvadé, “The Rights to Remuneration in Switzerland” in Creators’ Rights in the Information Society, ALAI, Budapest 2003, at 295, 373 and 511.
133. Council Directive 92/100/EEC of 19 November 1992 on rental and lending right and on certain rights related to copyright in the field of intellectual property.
134. Silke von Lewinski, “The Protection of Authors and Artists by Contract, Introductory Notes”, ALAI Congress 1997.
135. François Dessemontet, “Authors’ and Performers’ Protection through Individual Contracts”, General Report, ALAI Congress, 1997, at 53.
136. Supporting Culture and Innovation, supra note 17 at 35 states that “[T]he Government of Canada is committed to bringing the Copyright Act in conformity with the WCT and WPPT once the issues involved are thoroughly analysed and appropriately consulted upon.”
137. Re: Song Corp. [2002] O.J. No. 13, Bankruptcy Court File No. 31-38843.
138. [1974] 3 All E.R. 616.
139. 1989 C.A. 750
140. Q.B. 1990 S-6909
141. Ben Challis, “EXTENDING THE TERM:Should the UK recording industry have new obligations as well as new rights if the copyright term for sound recordings is extended?” http://www.musiclawupdates.com/index_main.htm.
142. Paul Siren and Gratien Gélinas, The Status of the Artist, Report of the Task Force, August 1986.
143. Tenth Anniversary Report 2003.2004, Canadian Artists and Producers Professional Tribunal, at 14.
144. Loi sur le statut professionnel et les conditions d’engagement des artistes de la scene, du disque et du cinema, L.R.Q., chapitre S-32.1.
145. Ibid., section 1.
146. Ibid., section 6.
147. Ibid., section 18.
148. Ibid., section 26.1 provides for producers to withhold and send the amount of dues to the artists’ organization as agreed or fixed by the Commission.
149. Ibid., section 24.
150. Ibid., section 27.
151. See www.craaap.gouv.gc.ca under “Registre”.
152. Supra note 144, section 8.
153. Ibid., section 40.
154. Ibid., sections 29 and 31.
155. Ibid., section 33.
156. Ibid., sections 31 – 33.
157. Ibid., section 35.1 (2004, chapter 16, section 8) An Act to amend various legislative provisions concerning professional artists
158. Ibid., section 34.
159. Ibid., section 35.
160. Ibid., section 35.1
161. Loi sur le statut professional des artistes des arts visuals, des métiers d’art et de la literature et sur leurs contrats avec les diffuseurs, L.R.Q., S-32.01.
162. Section 3 defines a “diffuseur” in the official French version of the act, translated as “promoter” in the unofficial English translation to mean “any person, body or corporation who or which, as its main or secondary activity, operates for profit or not a circulation enterprise and enters into contracts with artists”. Throughout our paper we use the term “producer” very broadly to encompass all those who enter into contracts directly with creators to produce, distribute or exhibit their works or to retain their services in productions or performances.
163. Bill 42, An Act to amend various legislative provisions concerning professional artists was enacted in 2004. Section 10.1 of S-32.01 allows the Commission to recognize an association of professional artists who create dramatic works, but only with respect to the public performance of works that have already been created.
164. Regroupement des artistes en arts visuals du Québec (RAAV) was founded in 1989 and Conseil des Métiers d’art du Québec (CMAQ) in 1988. The other two associations recognized by the Commission are UNEQ and AQAD. See CRAAAP website www.craaap.gouv.gc.ca.
165. Supra note 161, sections 31 to 34.
166. “Creator, an Act for you! , a leaflet published in 1996 by the Commission de reconnaissance des associations d’artistes, reciting section 31 of the act in slightly simplified form.
167. An Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters, R.S.Q., chapter 32.01, section 34. English translation of the Editeur official du Quebec (unofficial version).
168. Ibid., sections 38 and 39.
169. Ibid., section 40.
170. Ibid., section 35.
171. Ibid., section 36.
172. Ibid., section 37.
173. Status of the Artist Act, R.S.C. c. S-19.6 (1992, c.33), section 33. Section 44 provides that scale agreements may contain a compulsory check-off for dues which the producer deducts from the artist’s remuneration and sends to the association, whether or not the artist is a member of the association.
174. Ibid., sections 25 and 26.
175. Ibid., sections 28 and 33.
176. Ibid., section 24.
177. Ibid., section 33.
178. Ibid., section 32.
179. Collective bargaining under the Status of the Artist Act, document from February 9, 2005 meeting in Toronto with certified artists associations. Although not referred to in the Status of the Artist Act, through an application to the Ministry of Labour, free mediation services were provided in June 2006 in the course of negotiations between Canadian Actors Equity Asssociation and the Department of Canadian Heritage to assist them in reaching an agreement following a complaint of unfair bargaining. (Information provided by CAPPRT).
180. Supra note 173, section 66.
181. Evaluation of the Provisions and Operations of the Status of the Artist Act, Final Report, September 18, 2002, prepared for the Department of Canadian Heritage by Prairie Research Associates (PRA) Inc., http://www.pch.gc.ca/progs/em-cr/eval/2002/2002_25/11_e.cfm together with the Government’s response indicating that it would do further policy work including consultations with arts community and government departments.
182. Saskatchewan’s Status of the Artist Advisory Committee in 1993 had nevertheless recommended recognition of collective bargaining rights for artists’ organizations and recognition of national and regional collective agreements in the province, with adjudication by the Saskatchewan Labour Relations Board.
183. Ministerial Advisory Committee on the Status of the Artist Final Report, A Report to the Minister of Culture, Youth and Recreation, Regina, October 2003, at 4.
184. Final Report of the Minister’s Advisory Committee on Status of the Artist, July 2006, www.cyr.gov.sk.ca.
185. Submssion to the Minister’s Advisory Council for Arts and Culture, Workers in the Arts and Culture Sector: Status, Organizing and Collective Bargaining Rights, Ontario Federation of Labour, May 2006.
186. Organisation for Economic Co-operation and Development, “Employment Outlook 2000 Chapter 5: The partial renaissance of self-employment” http://www.oecd.org/dataoecd/10/44/2079593.pdf.
187. Saskatchewan has status of the artist legislation but without any labour relations component. The Status of the Artist Act being Chapter S-58.1 of the Statutes of Saskatchewan, 2002.
188. Théberge supra note 18 at para 116.
189. Silke von Lewinski, “International Copyright over the Last 50 Years – A Foreign Perspective” (2003) 50 Journal of the Copyright Society of the USA 581 at 602.
190. Théberge supra note 18 at para 6.
191. Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3. [Constitution Act], s. 91(23).
192. Constitution Act, ibid., s. 92(13). See also ibid., s. 92(16) (“Generally all Matters of a merely local or private Nature in the Province”).
193. Reference re Employment Insurance Act (Can.), ss.22 and 23, 2005 SCC 56 at para 8.
194. Beaulieu and Lorinc, supra note 16 at 13.
195. Supra note 57 at 35.
196. Supra note 62 at 891.
197. Dietz, “Existing Levy Systems – Germany” in Creators Rights in the Information Society, ALAI, Budapest 2003, at 426
198. Trond Andreassen, “Conditions for Writers in the Nordic Countries” in Authors Rights, Handbook of the European Writers Congress, Munich 2000, at 79, about writers.
199. Supra note 120 at 8.
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©2006 Marian Hebb and Warren Sheffer. This study was produced for The Creators' Copyright Coalition and The Creators' Rights Alliance / l'Alliance pour les droits des créateurs with the generous support of the Department of Canadian Heritage, the Canada Council for the Arts and the Government of Ontario through the Ministry of Culture. You may reproduce and distribute this work for non-commercial purposes, in whole or part, provided you give credit to the authors, CCC and CRA/ADC. Please distribute freely. • Webpages: Patrick Davidson • The outline map of Canada used in the logo is from The Atlas of Canada, as compiled and produced by Natural Resources Canada, and is used with permission.
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