Artist associations have broad negotiating powers, SCC rules

The Supreme Court of Canada today issued reasons for its ruling in Canadian Artists’ Representation v. National Gallery of Canada, where the court ruled against the gallery and its attempt to restrict the bargaining rights of artist associations.

The dispute — between the gallery and two artist associations — goes back to 2007, during a negotiation in which the sides were attempting to sort out minimum copyright licensing fees for displaying work (on web sites, in publications, etc.)

While the gallery had paid these licensing fees before, it received a legal opinion at the time suggesting it was not obliged to — throwing a wrench into the bargaining process.

The opinion focused on the use of the word “services” in the Status of the Artist Act. Under the SAA, artist associations are authorized to negotiate “minimum terms and conditions for the provision of artists’ services” on behalf of their members, who are not permitted to compete with each other by waiving these minimums.

The gallery argued, because copyright is property, not a service, the SAA did not apply. Rather, the applicable statute would be the Copyright Act, which doesn’t provide artist associations with any bargaining rights.

The associations filed a complaint with the Canadian Artists and Producers Professional Relations Tribunal, which concluded the “services” argument held no validity and the gallery had failed to negotiate in good faith.

The majority at the Federal Court of Appeal disagreed with that assessment, but the Supreme Court today — in a unanimous ruling written by Justice Marshall Rothstein — restores the tribunal’s original decision.

The SCC notes the SAA and the Copyright Act are intended to be complementary, and any perceived conflict that denies basic negotiation of minimum fees would oppose the spirit and “plain meaning” of the Status of the Artist Act — namely, to elevate the economic status of artists.

“. . . to conclude that such minimum fees are excluded from scale agreements would result in the SAA having a limited impact on the achievement of Parliament’s express recognition that artists should be compensated for the use of their works, including the public lending of those works,” the ruling states.

David Yazbeck, a labour lawyer at Raven Cameron Ballantyne & Yazbeck LLP, represented the artist associations in the case. He says the court’s ruling weighs the opposition’s semantic arguments against the intent of Parliament and the purpose of the SAA.

“It makes no sense that Parliament would have intended to prevent artist associations from negotiating what is a crucial issue,” says Yazbeck. “Why would you take the most important aspect of any agreement with an artist out of the Status of the Artist Act? Why would Parliament have done that? And the answer obviously is, no, it never intended that all.”

While the SCC does not go as far as the tribunal did in accusing the gallery of negotiating in bad faith, Yazbeck points out the gallery had no problem with the licensing fees prior to getting its legal opinion — in the middle of negotiations — on the applicability of the SAA.

“For a number of rounds of bargaining, the parties had included these kinds of provisions,” he says. “And then all of a sudden the gallery changed its mind and pulled those out and said ‘we’re going to start again.’”

Guy Dancosse, at Lapointe Rosenstein Marchand Melançon, represented the National Gallery of Canada. He says, while the ruling helps to clarify the bargaining authority of artist associations under the SAA, it will also have serious implications for more obscure artists who may want to waive their minimum fee and negotiate freely with the gallery.

“We’ll have to go back and negotiate a minimum fee,” says Dancosse, “but then the question will be, how does that affect the limited budget of the gallery? Will it have to cut services, like the CBC did, for instance?”

Yazbeck says any argument that suggests collective bargaining or minimum wages hurt the worker has it backwards.

“I think the chief difficulty with that argument is that you have to look at what happens without a minimum wage,” he says. “And essentially what happens is that you have a race to the bottom. You have a situation where artists are being paid less and less.”

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