5.0 Conclusion

The nature of copyright, a property right that developed on the margin of property law, is, as has often been repeated, a property right the object of which, while having a material existence, is related to the intangible. Falling within a distinct legal regime, copyright is, of course, the object of transactions and contracts which allow us to assess these practices. Contract law then takes up the baton. From this point of view, copyright, far from being unique, evolves in an economic universe and is integrated into the larger sphere of trade in which goods pass from hand to hand. However, there is the clear impression that copyright is not merchandise like other merchandise; although it is part of the economic universe, this on its own does not define it or establish its real stature. The present report seems, in large part, to embody these issues. It is thus not surprising that artists have the greatest success when they act together to draw the best advantage from the economic rules that underlie our laws and that are part of a larger societal environment..

It is not easy to summarize in a few statements all of the issues that the different respondents raised. In spite of the plurality of practices, however, there are a certain number of shared elements. There is no doubt that the introduction of exceptions constitutes a constant threat to all respondents. Should the Copyright Act be refocused? The notion that the author is the primary rights holder becomes all the more meaningful when there is an effective fee base and the remuneration attached to these fees is fair.

For the question of copyright to be more than theoretical, there must therefore be rights to be enforced, and the pre-eminence of the author must be a reality. The erosion of creators’ rights may be explained by the advent of new technologies, which, of course, pose legislative challenges and make copyright more fragile.

The contractual relations maintained by artists are divided into collective and individual relations. There is no doubt, after listening to all the respondents, that collective relations are far preferable to individual ones judging by the results. The best way for artists to get what they want and deserve is to be in organizations structured for collective action.

Collective societies are on the same footing, and are an answer to the weakness of individuals negotiating their own contracts. They are a counterweight in negotiating uses, and their strength is proportional to their repertoire.

Although this assessment was probably shared by all when this study was initiated, it is confirmed by this report. It is therefore not surprising that though the professional association and the collective may sometimes have diverging interests, they are allies. The relationship between artists’ associations and collectives is therefore complex; it may be antagonistic, it may be complementary.

Although there are numerous difficulties and arduous circumstances, solutions are nevertheless being sought – negotiated, contractual, legislative, and collective.

Appendix I: List of Artists’ Associations

• APASQ
  (Association des professionnels des arts de la scène du Québec)
  David Gaucher, president
• AQAD
  (Association québécoise des auteurs dramatiques)
  Michel Beauchemin, executive secretary
• ARRQ
  (Association des réalisateurs et réalisatrices du Québec)
  Lise Lachapelle, director general
• CAPIC
  (Canadian Association of Photographers and Illustrators in Communications)
  André Cornellier
• CMA
  (Conseil des métiers d’art)
  Louise Chapados, director, service development, project funding, and training
• CMC
  (Canadian Music Centre)
  Mireille Gagné, general director, Québec
• Guilde des musiciens
  Gérard Masse, president
• RAAV
  (Regroupement des artistes en arts visuels)
  Annie Molin Vasseur, sitting director general at the time of the interview
• SARTEC
  (Société des auteurs de radio, télévision et cinéma)
  Yves Légaré, director general
• SPACQ
  (Société professionnelle des auteurs compositeurs du Québec)
  Francine Bertrand-Venne, sitting director general at the time of the interview

• UDA
  (Union des artistes)
  Anne-Marie Des Roches, director, public affairs
  Sylvie Drouin, consultant, labour relations, and negotiations officer
• UNEQ
  (Union des écrivaines et des écrivains québécois)
  Pierre Lavoie, director general
  Ginette Major, assistant director general

List of Collectives

• ArtistI
  Richard Cayer, assistant administrative director
• COPIBEC
  (Société québécoise de gestion collective des droits de reproduction)
  Hélène Messier, director general
• SOCAN
  (Society of Composers, Authors and Publishers of Canada)
  France Lafleur, Vice-President Licencing and General Manager, Quebec and Atlantic Canada division
• SODART
  (Société de gestion collective des droits d’auteur en arts visuels)
  Annie Molin Vasseur, sitting director at time of interview
• SODRAC
  (Society for Reproduction Rights of Authors, Composers and Publishers in Canada)
  Claudette Fortier, Copyright and Business Development Advisor
  Diane Lamarre, Manager, Visual Arts & Crafts Department
• SOGEDAM
  (Société de gestion des droits des artistes musiciens)
  Eric Lefebvre, secretary
• SoQAD
  (Société québécoise des auteurs dramatiques)
  Marie-Louise Nadeau, rights director, SoQAD, and assistant executive secretary, AQAD

List of government representatives

• Louise Dion
  Direction générale des affaires internationales et de la diversité culturelle:
  Ministère de la Culture et des communications
• Hélène Lavallée
  Secretary and legal advisor:
  Commission de reconnaissance des associations d’artistes et des associations de producteurs
• Josée Dubois
  Executive Director and General Counsel:
  Canadian Artists and Producers Professional Relations Tribunal
• Lorraine Farkas
  Director, Planning, Research, and Mediation
  Canadian Artists and Producers Professional Relations Tribunal

Appendix 2: Interview Guideline

Artists’ Associations

General

1. Can you briefly describe the sector in which you work?
2. What is the structure of your association?
3. How many members are in your association?

4. What is the profile of your membership? Types of practices, subgroups, representation of these subgroups in the association, etc.
5. What is your relationship with collectives?
6. Approximately how many of your members belong to a collective? Do they feel that the royalties paid by these collectives are sufficient considering the exceptions that certain organizations and institutions enjoy?
7. Has globalization had an impact on your sector? Explain.
8. Have the new technologies affected your sector? How?
9. Given this context, have you created strategic alliances with other players? If yes, why?

Copyright

10. Have your members been affected by the exceptions introduced in the Copyright Act regarding the education sector, libraries, museums, and archives?
11. How would you describe the level of your members’ knowledge of the issues linked to electronic rights?
12. How do your members view the fact that their works are illegally copied on the Internet?
13. What do your members feel about file sharing? How do they articulate the relationship between these networks and the creator’s role?
14. In recent years, decisions regarding copyright have been handed down by the Supreme Court (Théberge, Desputeaux, CCH rulings). What do you think of them? Do they affect your sector?

Contractual practices

15. Do you have collective agreements with promoters or producers?
16. What are they? Agreements under the Status of the Artist Act? Under Act S-32.1 or Act 32.01? 
17. What are the main difficulties encountered during negotiations with promoters or producers?
18. What contribution have the statutes on the status of the artist made in your sector?
19. Do your members understand the nature and effect of these statutes?
20. What is your assessment of the Commission de reconnaissance des associations d’artistes et des associations de producteurs?
21. How do you evaluate the contribution of the federal Status of the Artist Act?
22. What is your assessment of the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT)?
23. If there are collective agreements between the members of your organization and a promoter or producer, are their mechanisms to protect their copyright? Do any of these mechanisms cover electronic rights?
24. Are there specificities with regard to types of promoter or producer? Public vs. private? Scope of the organization? (individual and/or collective agreements)
25. Are there contractual practices that you find inequitable? Can you give examples?
26. Do promoters respect Act S-32.01 by mentioning the elements that must obligatorily be recorded in individual contracts between artists and promoters?
27. Have you observed waivers of moral rights in licences or copyright assignments? Is this a systematic practice? Or is it rare?
28. Have you created one or more standard contracts? If yes, are they used? How frequently? Explain.
29. Have new practices developed with regard to the new technologies? What are they? Have they proved advantageous or disadvantageous for artists?
30. Have your members been forced to assign their electronic rights in a context where they had no choice, because it was a sine qua non condition for the contract? What were the consequences?
31. Have you set out mechanisms related to settlement of disputes of all types (between artists, between artists and promoters, between artists and producers)?
32. Do your members tend to see inequitable contracts used by promoters or producers as constituting more of a threat than illegal use of their works by users?

Other

33. Given the possibility of negotiating collective agreements, how do you situate the social safety net? (taxes, health and safety, collective insurance, pension fund)
34. Have members reported on the effect of payment of royalties on employment insurance and/or social assistance? What do you think of this issue?

Conclusion

35. What are the major issues in your sector regarding copyright?
36. How do you see the future for artists and their living conditions?
37. Is there anything that you would like to discuss that we have not addressed in this interview?

Collective Societies

General

1. Can you give a general description of your collective’s activities?
2. What is the legal structure of your collective? For profit, not for profit?
3. How many rights holders does your collective represent?
4. By what mechanism do rights holders join your collective? Assignment, licence, mandate?
5. What is the profile of your rights holders? Are they authors, promoters, producers, performers? Can you tell us how your rights holders are distributed? How do you develop your repertoire?
6. What rights do you manage? (copyright, neighbouring rights)
7. What are the revenues of your collective? How do you analyze these revenues and their provenance?
8. How are you related to the artists’ associations?
9. According to you, how is your collective perceived? How are all collectives perceived, in your opinion? By users? By rights holders?
10. Does globalization have an impact on your collective? Explain.
11. Have the new technologies affected your collective? How?
12. Given this context, have you created strategic alliances with other players? If yes, why?

Tariffs and scales

14. Do you have to file your tariffs with the Copyright Board? If yes, can you give your impressions of how rates are established?
15. If no, have you filed a tariff with the Copyright Board? If yes, tell us about your experience. If you decided not to file a tariff with the Copyright Board, can you say why?
16. Is your scale often negotiated downward?
17. Do you have difficulties with being paid? Have you totalled up these losses? About what is the amount?
18. Do you have monitoring mechanisms with regard to uses of the works in your repertoire? If yes, what are they? Have you had satisfactory results?

Agreements

18. Do you have agreements with users? What has been your negotiation experience?
19. Are the agreements respected? If you have had difficulties, what are they? How are measures aimed at new technologies integrated?

Copyright

20. Have you estimated the losses incurred from violations of copyright linked to new technologies? Is this a crucial issue for the survival of your collective? What is or will be your strategy?
21. Are there exceptions in the Copyright Act that affect you specifically? Have you estimated the losses incurred?
22. How do you perceive your role in the process of reviewing the Copyright Act?
23. What is your point of view of extended licences? What would the impact be in your sector? Are you in favour of an intervention by the legislator?
24. What do you think of a regime such as the one for copying for private use?
25. In recent years, decisions regarding copyright have been handed down by the Supreme Court (Théberge, Desputeaux, CCH rulings). What do you think of them? Do they affect your sector?
26. What is your view of the future with regard to copyright? How do you see your future development? In the short, medium, and long terms?
27. Is there anything you would like to discuss that has not been addressed in this interview?

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Notes

1 Droit d’auteur/Multimédia-Internet/Copyright.

2 Except for the statute promulgated in Saskatchewan.

3 An Act to amend various legislative provisions concerning professional artists, S.Q. 2004, c. 16.

4 Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336.

5 Id., para. 30.

6 Desputeaux v. Éditions Chouette (1987) inc., [2003] 1 S.C.R. 178.

7 CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339.

8 Id., para. 6.

9 Id., para. 48.

10 2004 S.C.C. 45.

11 An Act respecting the professional status and conditions of engagement of performing, recording, and film artists, R.S.Q., c. S-32.1, lists the following production areas in section 1: “. .  the stage, including the theatre, the opera, music, dance and variety entertainment, multimedia, the making of films, the recording of discs and other modes of sound recording, dubbing, and the recording of commercial advertisements.” Recently, the legislator amended the statute to add multimedia to the areas listed above: An Act to amend various legislative provisions concerning professional artists, supra note 3, s. 6.

12 Section 10, 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., c. S-32.01.

13 This is section 1 of An Act to amend various legislative provisions concerning professional artists, supra note 3, which states: “10.1. In the field of literature, the Commission may also recognize an association of professional artists who create dramatic works. This recognition shall cover only the public performance of works that have already been created, whether or not they have been performed in public before.”

14 An Act respecting the status of the artist and professional relations between artists and producers in Canada R.S.C. 1985, c. S-19.6; hereinafter Status of the Artist Act.

15 R.S.C. 1985, c. C-42.

16 An Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters, supra note 12, states the following at section 2, paragraph 2, regarding artistic activities: “‘arts and crafts’: the production of original works which are unique or in multiple copies, intended for a utilitarian, decorative or expressive purpose and conveyed by the practice of a craft related to the working of wood, leather, textiles, metals, silicates or any other material.”

17 An Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters, supra note 12, stipulates the following at section 2, paragraph 1: “‘Visual arts’: the production of original works of research or expression, which are unique or in limited copies and are conveyed by painting, sculpture, engraving, drawing, illustration, photography, textile arts, installation work, performance, art video or any other form of expression of the same nature.”

18 Section 2, paragraph 3, of An Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters, supra note 12, states the following: “‘literature’: the creation and the translation of original literary works such as novels, stories, short stories, dramatic works, poetry, essays or any other written works of the same nature.”

19 The Web site of the Ministère de la culture et des communications lists the recognized associations and the sectors of negotiation.

20 The Certification Register is available on the Web site of the Canadian Artists and Producers Professional Relations Tribunal.

21 Section 9, paragraph 1, states as conditions for recognition the fact that the association “is a professional syndicate or an association having an object similar to that of a professional syndicate within the meaning of the Professional Syndicates Act (chapter S-40)”: An Act respecting the professional status and conditions of engagement of performing, recording, and film artists, supra note 11. The requirements of Act S-32.01 and of the federal statute do not specify how the organization is constituted but state certain conditions regarding the association’s regulations. See section 12 of An Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters, supra note 12, and section 23 of the Status of the Artist Act, R.S.C. 1985, c. S-19.6.

22 Section 4 of An Act to amend various legislative provisions concerning professional artists. supra note 3, which modifies section 43, paragraph 1, is the following: “A recognized association or group and an association of promoters or a promoter that does not belong to such an association may conclude a general agreement that provides for the inclusion of compulsory elements, in addition to the elements and requirements already set out in Division I of Chapter III, in a circulation contract covering the works of the artists represented by the recognized association or group.” The following paragraph is added:

“The conduct and the relations of the parties with respect to such an agreement must be governed by good faith and diligence.”

Section 5 adds new law to section 45.1:

“The Government may, by regulation,
“1) prescribe the inclusion of compulsory elements in circulation contracts covering the works of artists represented by a recognized association or group and to be concluded between those artists and the promoters;
“2) draw up compulsory forms for circulation contracts covering the works of those artists.
“3) The elements and forms prescribed by regulation may vary with the artistic field, the artistic activity, and the nature of the circulation contract.”

23 See par. 6(2) of the Status of the Artist Act, supra note 14.

24 For the purposes of this paper, the term “collective agreement” is used generically unless the context indicates an agreement in virtue of Act S-32.1.

25 Here is part of the preamble to section B, which concerns use of a text already created by the author:

“The parties agree:
“The Department of Canadian Heritage takes the position that the Status of the Artist Act does not apply to texts already created. As a consequence, this part of the agreement does not constitute a scale agreement in the sense of the Act . . .” Accord-cadre entre le Ministère du Patrimoine canadien et L’Union des écrivaines et des écrivains québécois, December 2002 (our translation).

26 Recent amendments to provincial statutes on the status of the artist set out an addition in the section on functions and power of the Commission:

“63.1. The Commission must carry out its functions and powers efficiently and with diligence.
“A decision must be rendered by the Commission within 90 days after a matter is taken under advisement.
“The chairman of the Commission may extend this period, taking into account the circumstances and the interests of the associations of artists, the associations of producers, and the producers concerned. The chairman shall inform the parties concerned of any extension granted.” An Act to amend various legislative provisions concerning professional artists, supra note 3.

27 Section 31 says, “The contract must be evidenced in a writing, drawn up in duplicate, clearly setting forth

“1) the nature of the contract;
“2) the work or works which form the object of the contract;
“3) any transfer of right and any grant of licence consented to by the artist, the purposes, the term or mode of determination thereof, and the territorial application of such transfer of right and grant of licence, and every transfer of title or right of use affecting the work;
“4) the transferability or nontransferability to third persons of any licence granted to a promoter;
“5) the consideration in money due to the artist and the intervals and other terms and conditions of payment;
“6) the frequency with which the promoter shall report to the artist on the transactions made in respect of every work that is subject to the contract and for which monetary consideration remains owing after the contract is signed.” An Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters, supra note 12.

28 An Act to amend various legislative provisions concerning professional artists, supra note 3, sets out in section 6 the addition of this field to section 1 of Act S-32.1 governing performing, recording, and film artists.

29 Section 33, paragraph 1, has the following wording: “During the negotiation of a first group agreement, either party may apply to the Commission for the designation of an arbitrator if the intervention of the mediator has not been successful.”

30 An Act to amend various legislative provisions concerning professional artists, supra note 3.