2.0 Introduction

This study was conducted jointly by DAMI©¹ and the Creators’ Copyright Coalition (CCC). DAMI© was responsible for research in Quebec, while the CCC was responsible for the rest of Canada. Resolutely assuming the task of listening to the voices of creative artists and performers, this study deals with issues related to copyright and contractual practices.

Thanks to the DAMI©–CCC partnership, the situation can be analyzed on a nationwide scale, even though each study is somewhat autonomous – for instance, with regard to provincial legislation on the status of the artist that distinguishes Quebec from the rest of Canada.² In addition, the differences linked to the civil law and common-law judicial systems mean that contractual practices take place in two distinct normative spheres. This being said, far from being barriers, these differences, once recognized, can easily be integrated into the analysis.

2.1 The Objective of the Study

This qualitative study takes account of both the diversity of practices and the common issues. Twelve artists’ associations and seven collectives were interviewed, as were several government representatives, who gave us a general perspective on the situation.

As mentioned above, two aspects are studied specifically – copyright and contractual practices, which, one might say, are two sides of the same coin. This division might lead one to believe that the categories are mutually exclusive, but of course this is not the claim set forth here. Rather, the decision to organize the material this way makes it possible for us to look at questions linked to copyright via exceptions, recent jurisprudence, infringement, and challenges posed by new technologies. The portion of the study dedicated to contractual practices envisages copyright, whether individual or collective, within the contract. Elsewhere, contractual practices reveal uses that, although they are not directly related to copyright, demonstrate how certain related notions are handled. The way in which the parties to a contract seize on certain notions, detail them, or distance them from their copyright niche is a subject that has not been closely enough studied, in our opinion. The interviews conducted revealed this, stripping away theoretical notions to show concrete practices.

The realities expressed reflect the multiplicity of practices. Given the space available, we try to highlight both the uniqueness of the respective artistic fields and the connections between them. We are dealing with artists, and as problematic as their activity may be to define, it shares some common characteristics.

One of the difficulties with the type of synthesis that follows is oversimplification. The risk is that we might lose sight of the reality on which the work below is based. This seems important to say at the outset, especially because the interviews reveal a complex reality that belies common perception. Examples will be used to illustrate remarks where relevant.

2.2 Context of the Study

The Copyright Act is currently under review. The Quebec statutes on the status of the artist were recently amended.³ These are not the only reasons for undertaking a study such as this, however. It seemed opportune, at this time, to bring gather information about the realities of working artists in different fields and paint a portrait of the situation.

The impact of new technologies is also very relevant, since we are addressing issues related to copyright and to the contractual framework of professional practices. It was important to take a closer look at this phenomenon, which sometimes overshadows other issues. We shall see its importance in different sectors.

The Théberge, Desputeaux, and CCH decisions also have changed the rules of the game in copyright. The interviewees were asked to comment on these cases, and their remarks are included below. It is appropriate to say a few words here about these cases.

The Théberge decision⁴ ruled that transferring an image from a paper poster to a canvas, a technique called ink transfer, is not a reproduction in the sense of the Copyright Act. It also ruled that the Copyright Act must strike a balance: “The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator . . .”⁵ The notion of balance has also been taken up in recent cases in the copyright field.

The Desputeaux decision⁶ ruled that the paternity of a work may be decided through arbitration. It is not a question of public order that would be placed beyond the reach of arbitration.

In the CCH decision,⁷ the Supreme Court interpreted the term “research” in section 29 of the Copyright Act as follows: “. . . the Law Society did not infringe copyright by providing single copies of the respondent publishers’ works to its members through the custom photocopy service. Although the works in question were ‘original’ and thus covered by copyright, the Law Society’s dealings with the works were for the purpose of research and were fair dealings within s. 29 of the Copyright Act.”⁸  Furthermore, according to the Supreme Court, the Law Society was not authorizing infringement of copyright by making self-service photocopiers available to users of the library.

On the extent of the fair dealing exception, the decision reads, “The fair dealing exception, like other exceptions in the Copyright Act, is a user’s right. In order to maintain the proper balance between the rights of a copyright owner and users’ interests, it must not be interpreted restrictively.”⁹

Thus very important decisions have been handed down by the highest court in the land, and their impact has yet to be fully assessed. Another decision by the Supreme Court was handed down after the interviews took place: Society of Composers, Authors and Music Publishers of Canada v. Canadian Association of Internet Providers.¹⁰ In this case, the Court had to decide the extent of the responsibility of Internet service providers with regard to the payment of royalties for musical works protected by the Copyright Act. It was decided that since the ISP is only an “agent,” it is not making a communication to the public by telecommunication.

3.0 Methodology

The research methodology was qualitative. A total of twenty-two interviews were conducted, divided as follows: twelve with artists’ associations, seven with collectives, and three interviews with four government representatives. Except for the last category of respondents, the interviews took place in person. Michel Beauchemin, coordinator of DAMI©, identified the organizations to be interviewed.

The preliminary contacts and appointments for meetings were made by e-mail and telephone. Most of the interviews took place over a three-week period: the weeks of 24–28 May, 31 May–4 June, and 7–11 June.

Two separate interview guides were written, one for artists’ associations and one for collective societies. It did not seem realistic to have only one guide, given the distinct roles of the two groups. The number of questions and the questions themselves varied from one interview guide to the other; the main difference being in the more detailed line of questioning covering contractual practices for artists’ associations.

With each group, if one of the questions from the interview guide was not relevant, it was simply put aside. For artists’ associations, the interviews generally lasted around two hours; for collectives, approximately an hour and a half. The interviews were recorded. It was explained to the interviewees that the interview guide was used as a guideline for the interview. Except for the first interviews, which were pre-tests, the interview guide was sent to participants beforehand.

The three interviews conducted with four government representatives were shorter and more informal. The interviews took place by telephone and lasted about 45 minutes. They were not recorded. The purpose of these interviews was to obtain an assessment from a few government respondents who are or have been in contact with representatives of creative artists and performers. Having targeted the individuals, we simply asked them for their evaluation of the situation in their respective fields, given the issues raised in this study.

The organizations and individuals interviewed are listed in Appendix 1. The interview guides are in Appendix 2.