Supreme Court

Industrial and Intellectual Property

Establishing minimum fee for use of existing works does not affect rights conferred on copyright holders

Relations between artists and certain federal government institutions that engage artists to provide artistic production governed by Status of the Artist Act (Can.) (SAA), which provides for certification of associations to represent artists and negotiate with institutions to conclude scale agreements setting out minimum terms and conditions for provision of artists’ services. Negotiations for scale agreement between CARFAC and RAAV, certified associations for Canadian visual artists, and National Gallery of Canada (NGC) broke down after NGC, relying on legal opinion, refused to agree to minimum fees for licensing or assignment of copyright in existing artistic works. CARFAC and RAAV complained to Canadian Artists and Producers Professional Relations Tribunal that NGC failed to bargain in good faith. Tribunal held that licensing or assignment of copyright in existing works can be subject to binding minimum fees and NGC failed to bargain in good faith by adopting uncompromising position. Majority in Federal Court of Appeal allowed NGC’s application for judicial review, finding that allowing scale agreements to impose minimum fees for existing works would conflict with Copyright Act (Can.) (CA). Appeal allowed. Reasonable for tribunal to conclude that scale agreement includes provision of existing artistic works. Nothing in SAA supported treating commissioned and existing works differently. Authors bound by SAA include authors of artistic works within meaning of CA, i.e. artist already produced artistic work. To exclude existing works from scale agreements would result in SAA having limited impact; NGC acknowledged it rarely commissions works. Collective bargaining by artists’ associations under SAA in respect of scale agreements covering existing artistic works not contradicting any provision of CA. Artists’ associations are simply bargaining agents and have not taken for granted any property interest in any artist’s copyright. Establishing minimum fee for use of existing works does not affect rights conferred on copyright holders nor does it cause any conflict with provisions regarding collective societies since minimum fees for existing works do not apply to collective societies. When dealing with federal governmental producers for use of existing works, artists may assign or license copyright to collective society, in which case CA tariffs apply, or may deal directly with producer, in which case applicable SAA agreements apply. Tribunal’s finding that NGC failed to bargain in good faith not unreasonable.

Canadian Artists’ Representation / Le Front des artistes canadiens v. National Gallery of Canada (Jun. 12, 2014, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Cromwell J., Moldaver J., and Wagner J., File No. 35353) Decision at 226 A.C.W.S. (3d) 557 was reversed.  240 A.C.W.S. (3d) 963.

cover image


Subscribers get early and easy access to Law Times.

Law Times Poll

Law Times reports that there is no explicit rule that lawyers in Ontario must be competent in the use of technology. Do you think there should be explicit rules spelling out the expectations of lawyers’ in terms of tech use in their practice?