CCC-DAMI© Research Project on
Artists’ Working Conditions

Report from Québec

Presented to:
Michel Beauchemin
Coordinator, DAMI©

by Maryse Beaulieu

Table of Contents

• 1.0 Executive Summary
• 2.0 Introduction
  • 2.1 The Objective of the Study
  • 2.2 Context of the Study
• 3.0 Methodology
• 4.0 Results
  • 4.1 Results – Artists’ Associations
  • 4.2 Results – Collective societies
  • 4.3 Results – Government representatives
• 5.0 Conclusion
  • Appendix I: List of Individuals Interviewed
  • Appendix II: Interview Guideline
• Notes

1.0 Executive Summary

In this report, we highlight the main aspects of interviews that were conducted between late May and mid-June, 2004. The interviews were divided as follows: twelve artists’ associations, seven collective societies, and three interviews with four government representatives who, due to their respective positions, have a connection with the issues under study.

This study addresses mainly two subjects: copyright and contractual practices. The material has been organized so that the results are divided by reference group and by subject, and they are presented in the following order: artists’ associations, collective societies, and government representatives.

What conclusions should be drawn from these directed interviews? The common denominator, of course, is the artist. Equally obvious is the diverse character of artists’ experiences. It is clear that there are common threads, but the reality is far from monolithic. Issues involving copyright and contractual practices are directly linked in all sectors and are both significant and critical. They cannot reasonably be disconnected from each other. We have taken this into account by organizing the material so that examples can be used to illustrate what artists’ representatives report without resorting to anecdote. A contract, taken in its entirety, is a sort of snapshot of the relationship between creators and users. It structures uses and practices that are directly connected to what is happening in the field and gives a sense of the current state of affairs. Although copyright is of primary interest in this report, it is embodied in these contractual relations, and we will sometimes note practices that, without being about copyright per se, seem relevant. Below are the points that we consider central in this report.

The impact of new technologies in the sectors under study: a reality with a variable geometry

Currently, new technologies are the lens through which copyright is often seen. This reveals a real concern within the milieux under study and also an acute sense of disparity between emerging uses and existing legal provisions. New technologies do not have the same impact in all sectors, however. Time is also a variable in the sense that future development of higher-performance or more accessible technologies will change the landscape or affect sectors that, for the moment, are more or less untouched. Without minimizing the impact of new technologies, we can say that they are not of concern in every field, although they are the window through which issues linked to copyright are glimpsed by the public.

Moral rights: uses vary by sector, and distinct practices are reported

Although patrimonial rights constitute the bread and butter of artists because they are economic in nature, moral rights are also modified by contractual practices. While there does not seem to be a systematic waiver of moral rights, their scope is definitely being diminished. There is greater pressure on moral rights in environments where business activity is intense; following to the dictates of commerce, users try to obtain the maximum flexibility, and artistic works are becoming like mere merchandise. The properties that are on the market thus are less closely tied to moral rights.

The idea that a contract is automatically fair should be reconsidered.

The idea that a contract is automatically fair assumes that it constitutes a voluntary agreement between two parties. A balance between the parties is also presumed, and a contract that reflects it. Given this premise, it is not surprising that statutes on the status of the artist set out mechanisms to provide a balance in individual contracts, where the rules are dictated by the parties. Act S-32.1 and the federal Status of the Artist Act contain an obligation to negotiate with a view to obtaining a collective agreement or scale agreements. Act S-32.01, which applies to literature, visual arts, and arts and crafts, sets out a number of components that must be written into the contract. These provisions depart from the general rules concerning contracts and certainly have a protective function. The existence of these provisions, and the fact that they must be written into a contract, act as a formal framework that governs individual contracts but has not, however, led to in-depth changes.

Collective societies and artists’ associations: two modes of appropriation

It seems clear that the most effective modes of intervention in contractual matters are collective mechanisms. It appears that the most effective models for artists are organizations, be they collective societies or associations that negotiate collective agreements, that have sufficiently strong bargaining power for thereto be real negotiation.

Although collectives and artists’ associations are organizations based on different premises, they are both tools enabling artists to strike a better balance in their contractual relations.

Establishing the value of copyright: a persistent difficulty

It is interesting to note that uses related to new technologies are often part of a group of uses in which large sums of money are not now in play. The importance of establishing value for such use tends to be underestimated. The fact that there is de facto access, free of charge, to certain works erodes the value of these uses.