3 Things You May Not Know About Artists Rights in Canada
By Katie Wilde
When I set about writing this article, I had planned to do Five Things You May Not Know… As it turns out, the issue of artists’ rights in Canada is a deep dark vortex that seems to go on forever. I’ve cut my originally ambitious goal down to discuss the three areas that seemed the most interesting and timely: the myth of lost copyright, the fight for a minimum wage for artists, and Canada being named as a country that pays the lowest musicians’ royalties in the world. Though I’ve only included three here, there is a lot more to be explored. I encourage readers to click the links included below, and to explore related stories and resources. If you come across something that interests you, or you have questions about, please let me know. It’s possible that we’ll revisit the topic in another article. We are interested to hear what you, our readers, have to say.
1. Myth: "If I sell or give away the original artwork, I lose the copyright"
I'm surprised at how often I hear this one. However, it gives me an excuse to use the somewhat odd phrase, "I've got good news, you're wrong on this one!" The truth is that in Canada, the copyright for an original work of art, whether it be music or visual art, is with the artist automatically as soon as the work is created, and lasts either until they sell the copyright or until the copyright expires, 50 years after their death. Although the works don't need to be marked with the international copyright symbol for the copyright to exist, this doesn't mean an artist can't do more to protect their copyright, especially when work is shared online or available internationally. Given that in our digital age, sharing, borrowing, and illegal use is so much easier than it used to be -and that the internet is by default international - copyright bodies recommend that artists do everything they can to protect and defend their copyrights. This applies to visual artworks, music, film, and writing. Marking your work with the international copyright symbol, your name, and year of first publication (or of creation for unpublished works) is one way to show, in the event of a dispute, that you did everything within your power to communicate the ownership of the copyright. Whatever type of art you do, there is probably one or more Canadian Copyright Collective Society who looks after the issues for that artform. For a full list see the Copyright Board of Canada's list of Copyright Collective Societies.
As a side note, there are exceptions to the copyright automatically being owned by the artists. For example, see visualartcopyright.com's terminology list for a plain English summary, specifically Work for Hire, and Commission.
2. Canadian art advocates took fight for minimum artist fees to the Supreme Court of Canada - and won
If you're not familiar with the way visual artists make a living, it's not quite as simple as make a painting, sell a painting. Many artworks have the most impact on a society when they are exhibited in a public gallery setting and many aren't really suitable for home purchase (think Brian Jungen’s Shapeshifter). Works of art are copyright-protected, and in Canada, public exhibition is tied up with copyright law. Artists must be paid when their work is shared with the public, whether it be in a book or live in the gallery. Because of the cross-over with copyright law however, there was some confusion as to whether artists should be paid according to minimum national standards, or negotiated individually.
The short version of this story is that the National Gallery wanted to negotiate with each individual artist on their pay, rather than following the Canadian Artists Representation (CARFAC) fee schedule. The CARFAC Fee Schedule is a collectively bargained set of 'minimum wage' guidelines for artists. It is one of the few ways artists can be somewhat guaranteed a decent living wage. The problem with this is twofold. Firstly, there is a concern that artists will be reluctant to say 'no' to a showing at a prestigious national institution, leaving them vulnerable to being bullied into accepting unfairly low pay. The second is that the more artists who accept low fees, the harder it is for the rest of us to fight for fair minimum pay - and it devalues the hard-earned professional work of all artists and arts advocates.
Since 2003, Canadian arts advocacy organizations CARFAC and RAAV had been in negotiations with the National Gallery on a collective bargaining agreement to ensure a "minimum wage" for exhibiting artists, in accordance with the Status of the Artist Act. However, in 2007, the National Gallery's legal advice argued that they could go by the Copyright Act instead, which "favours individual over collective negotiations", and the courts granted approval.
"The gallery essentially argued CARFAC and RAAV [Regroupement des Artistes en Arts Visuels du Quebec, CARFAC’s Quebecois counterpart] were taking away the right of artists to be paid less if they chose," CARFAC said in a news release.
CARFAC and RAAV took the issue to the Supreme Court, and in May of last year, the court unanimously rejected the National Gallery's argument by allowing the appeal of the earlier ruling. Not only did they favour the appeal, they ruled "immediately after oral arguments" -- a heartening success when one considers that it typically it takes months to receive a decision from the Supreme Court.
Shortly after, the National Gallery released a statement, which stated in part, "The NGC is ready to go back to the negotiation table after the written judgment is rendered."
We wish our fellow arts advocates, artists, and the National Gallery great success in negotiating a mutually beneficial agreement that will help keep the arts and artists alive and well in Canada.
3. Tariff 8: Canada sets royalty rates for musicians at a disappointing 10% of international standard
According to a report by Music Canada, the already difficult task of making a living as a professional musician in Canada is not getting any easier. With the reality of declining CD and download sales, rentable web-based streaming services like Pandora are fast becoming the way music enters homes and brightens the lives of Canadians. Recently, the Copyright Board of Canada issued a long-overdue decision on what rates musicians should be paid for their work that is made available for listening through these services. Rather than basing royalties off marketplace rates and international precedent as suggested by Re:Sound, which would "certify that music in Canada has the same value as music in the United States and elsewhere around the world," the Copyright Board of Canada set them at 10% of "marketplace rates freely negotiated in Canada (and equivalent to those in the U.S. and around the world)." According to Music Canada, this decision was made in order to avoid having to raise SOCAN (the Society of Composers, Authors and Music Publishers of Canada) rates by 90% to match.
From a Music Canada Q&A on the subject:
"Even royalty rates in the United States – which are 90% higher – are hotly contested as musicians, including songwriters, fight for fairer compensation. With Tariff 8 rates set at 10% of a standard that is already considered to be far too low, it will make it even harder for Canadian musicians to make a living and to thrive internationally while digital music companies continue to grow and flourish.”
And just to put this in perspective, an article published in the Globe and Mail last week reported that one of the most popular songs of the year, Happy, by world-famous pop artist Pharrell Williams was streamed 43 MILLION times on Pandora. Care to take a guess at the giant pile of cash he made in royalties? $25,000 total. Author of the article, Elizabeth Renzetti, drives the point home:
"And that’s Pharrell, who sits atop music’s golden throne. If he’s earning tiny digital royalties, what does that say for the artists further down the chain, in the grubby realm of mere mortals? Toronto songwriter Diana Williamson, who recently moved back from L.A., told me about a song she’d co-written that had reached 260,000 downloads and made it to No. 3 on the Billboard dance chart. She hadn’t seen a penny in royalties. To complain about rip-off downloading, she said in an interview, is to invite 'abuse from the mob. But if those fans were bakers, they wouldn’t be giving away their croissants for free.'"
We’d be remiss not to mention the unsung heroes at Musicians’ Rights Organization Canada (MROC). The PI’s of musicians’ rights, MROC does some amazing detective work to track down musicians who performed on recordings, some of whom aren’t even credited in the album notes. Once found, MROC makes sure the artists receive the royalties coming to them.
CARFAC is the closest thing Canadian visual and performance artists have to a professional union, and CARCC is their licensing and copyright agency. For artists who feel a bit out of their depth managing licensing contracts or hiring a copyright lawyer, CARCC can manage copyright and licensing on an artist's behalf. When you're not sure what to charge for your art, or budget to hire an artist, CARFAC publishes detailed fee schedules (like a minimum wage for artists) publicly online - you don't have to be a member to access each year's fee schedule online. The fee schedule is a great help both to artists and those who use and exhibit their work.
Don't forget to visit this list of Copyright Collective Societies for resources on all types of arts, from film and media to music, literature, and visual arts.