Supreme Court ruling in favour of artists' rights paints National Gallery into tight corner

By Robert Sibley, Ottawa Citizen, May 15, 2014
Canada’s artists enjoyed a major legal victory Wednesday when, in a surprisingly fast decision, the Supreme Court of Canada ruled that the National Gallery of Canada was obliged to negotiate minimum fees with the artists whose work it exhibits.

“It was a great day for Canada’s artists after many years of fighting,” said Grant McConnell, president of the Canadian Artists’ Representation (CARFAC). “We’re finally going to go back to negotiating with the National Gallery of Canada.”

Wednesday’s decision effectively forces the National Gallery to do what it has been trying to avoid doing for the last seven years. Since 2007, the National Gallery and organizations representing Canada’s 20,000 visual artists — CARFAC and Le Regroupement des artistes en arts visuels du Quebec – have been at loggerheads over the issue of whether artists have the legal right to bargain minimum fees when the gallery uses their work.

The issue goes back more than a decade. In 2003, CARFAC and RAAV began negotiating with the gallery on a “scale agreement” as provided for in the federal Status of the Artist Act. The associations wanted an agreement that would set minimum fees for artists if the national institution displayed or reproduced their existing artworks.

In 2007, the gallery obtained a legal opinion that binding provisions on copyright issues couldn’t be legitimately included in a scale agreement. It then pursued an agreement that cut all reference to minimum fees for the use of existing works.

The arts group complained the gallery was acting in bad faith and won a tribunal ruling requiring the gallery to stop acting illegally and bargain in good faith. The gallery, however, turned to the Federal Court of Appeal, which overturned the tribunal’s decision, ruling that matters relating to copyright, including the imposition of minimum fees for the use of existing works, didn’t come within the purview of the Status of the Artist Act.

Basically, the appeal court accepted the gallery’s argument that some fees come under the Copyright Act, which sets individual negotiations ahead of any collective agreement.

The artistic groups appealed to the Supreme Court. Essentially, what was at issue was a perceived conflict between the Copyright Act and the Status of the Artist Act. CARFAC and RAAV want to negotiate binding minimum fees for their members in much the same way that unions negotiate collective agreements. The gallery, however, maintained that CARFAC and RAAV were undercutting the right of artists to be paid less if they so chose.

The gallery lost, but even more surprising was the speed with which the Supreme Court judges rendered their decision. Normally, the court reserves its decisions pending a written judgment, which can take two or three months or more. But in a rare move, the judges made their ruling for the artists within minutes of hearing arguments from both sides.

For the artists, it was a welcome — and long overdue — win. “It’s an important, historic win for us,” said artist and CARFAC member, Karl Beveridge. “The amazing thing is it includes all issues of copyright, not just exhibition right, but also reproduction right.”
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PHOTO L to R: Melissa Gruber, Wendy Nelson, April Britski, Susan Tooke, Manon Pelletier, Gerald Beaulieu, Julie McIntyre, Deborah Carruthers, Kristian Clarkem Christian Berard, Deirdre Logue, Grant McConnell. All are part of CARFAC. The Supreme Court will hear a case Wednesday that will determine whether, CARFAC, an association representing visual artists has the right to negotiate minimum fees for visual artists if the National Gallery of Canada uses their work. Photo by Jean Levac