Maryse Beaulieu's Report from Québec Part 4a
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The results are presented in the following order: artists’ associations, collective societies, and government representatives. The order of presentation of the results for the artists’ associations and collective societies follows the plan in the interview guide.
Representatives were interviewed from the following 12 artists’ associations listed here in alphabetical order: APASQ, AQAD, ARRQ, CAPIC, CMA, CMC, the Guilde des musiciens, RAAV, SARTEC, SPACQ, UDA, and UNEQ.
Each of these associations exist for the purpose of serving a group of artists whose practices distinguish them from other groups, although several associations can be grouped in categories such as : audiovisual, recordings, and theatre.11 It should be noted that for associations covered by Act S-32.0112 a single association is accredited per field, these fields being the visual arts, arts and crafts, and literature. Only literature is an exception to this rule, and the legislative modification is recent.13 The vast majority of associations interviewed were accredited both provincially and federally.14
Artists represented by associations are not all authors in the sense of the Copyright Act.15 The notions of “author” and “artist,” which, of course, are not equivalents offer their own share of difficulties. There are four statutes – two federal and two provincial – which are complicated by the constitutional division of powers. These statutes form a sort of normative framework that is not inevitable and was not intended to produce, a priori, a coherent set of standards. If we add to this the fact that artists are covered by other statutes in which their particularity is obscured it becomes obvious that the status of the artist as a whole is fragmented. The reflection on the social safety net flows from this same situation. Though we will not attempt to cover all of this territory, copyright and contractual practices are situated within this general landscape They form an example of how the rights conferred on artists by the state are administered via contracts, and how the parties make their own law, the contract being the instrument through which their intentions are expressed.
Certain sectors organize their contractual relations under collective agreements or scale agreements. For others, individual contracts are the rule. There are also areas where contractual freedom prevails. Collective contracts differ from individual contracts in that the former establish a stronger negotiating position. The individual contract very often leaves the parties in an unequal power relationship, with the artist proving to be the party with little or no negotiating leverage. In certain fields, the individual contract is beyond the scope of general rules, so certain elements have to be written into the contract. This does imply a higher level of formality, and these particular requirements do have the goal of redressing the imbalance between the contracting parties. But we will see below what the respondents say about the effectiveness of these measures.
These preliminary remarks are intended to situate the issues raised by the study of the conditions in which artists live. Next, I briefly describe the associations interviewed for those who are less familiar with them.
All of these associations, with the exception of the Canadian Music Centre and CAPIC, are recognized under the Quebec statutes on the status of the artist.19 With regard to the federal statute on the status of the artist, all the associations except the Canadian Music Centre are certified.20
Artists’ associations are either professional unions or non-profit associations.21
UDA and the Guilde des musiciens have the largest number of members. In both cases, the members are performing artists. The associations governed by Act S-32.01 all have memberships over 1,000. Of course, associations with larger numbers of memberships are related to the sectors that engage the greatest numbers of individuals. However, the members of SPACQ tend to join collective societies, and are dropping out of their professional association.
For some associations, it is difficult to discern a membership profile. With others, majority groups or practices can be identified. This is the case for the UDA, which, of course, has a large cohort of actors who are also very multi-skilled. At SARTEC, writing for television is the most widely practised activity. In other cases, there are a wide variety of members within a single association. AQAD, for instance, has some members who do only translation; UNEQ’s members include both non-literary and literary authors.
A number of associations reported that their membership has evolved over time. SPACQ, for instance, was founded by writer-composers of songs, but its membership gradually changed to include more members working in audiovisual. The realities of the marketplace may also exert an influence. For example, ARRQ noted that its membership includes increasing numbers of directors. The transfer of production from the public to the private sector, a phenomenon that has been underway for some time, is a notable reality within the association.
The geographic location of members has been mentioned. For example, CAPIC typically represents artists in urban centres, while UNEQ reported that less than half of its members live in the greater Montreal region. Male-female representation also contributes to the membership picture. The Centre for Canadian Music, which represents composers, noted its membership is not more than 15% women. At APASQ, the representation of women is slightly higher, and future cohorts will be composed of significant numbers of women. Age is an issue for RAAV, which expressed a concern for the lack of new young members.
The respondents did not identify all the possible variables that would enable analysis of their membership profile. However, the few factors highlight the plurality of realities experienced by artists’ associations. As a consequence, the analysis shows a variety of differences. But although it is not possible here to give a complete portrait of each association, the fact remains that the few aspects discussed enable us to take stock and gain some sense of nuance.
In the music sector, SPACQ stated that professional associations are important in the establishment of collective management. It should be remembered that SPACQ was behind the creation of SODRAC. The UDA, commenting on the situation in Europe, mentioned that collective societies there are very powerful. Without making hasty comparisons, it must be noted that the connection between collective societies and artists’ associations is founded in contexts and environments that tend to modulate such relationships.
The practice of collective management varies. In music, it is clear that writer-composers have made it what might be called their calling card. In other sectors, such as audiovisual, artists’ associations only manage some of the uses of creators’ work in collective agreements. The notion of collective management presupposes copyright, and not all of the associations interviewed have members who hold copyright.
In the theatre field, AQAD created SoQAD initially to administer the agreement concluded with the ministry of education. The fact that the association was not able to include stage performance rights within collective agreements was another reason for development of the collective society. There is an organic connection between the two organizations.
Associations that were recently affected by the introduction of “neighbouring rights,” such as UDA and the Guilde des musiciens, have different strategies. UDA has created its own collective society, ArtistI. Gaining the support of members was a process in which education regarding new rights and management of those rights were among the early core concerns. The Guilde des musiciens, on the other hand, considered joining an existing collective.
The associations covered by Act S-32.01 all were concerned about management of works. RAAV created SODART; CMA received a management mandate, which it entrusted to SODRAC; and UNEQ was one of the founding members of COPIBEC. Membership in SODART grew gradually; visual artists did not join the collective en masse. In fact, some of them turned to SODRAC for management of their rights. About half of the members joined a management society. At UNEQ, management of reprography rights is well established, as this association dealt with these rights for ten years before COPIBEC was created. For arts and crafts, the issues related to copyright are just coming to light. CMA received 175 mandates from a total of 800 professional members when it solicited them regarding management of their copyright. There is some interest in this issue, but CMA knows also that the reality of reproduction and exhibition of arts and crafts works remains to be developed. CAPIC turns to Access Copyright for management of the rights of its members, but few have joined to date. It seems that image banks are a tool that competes with the establishment of collective management for members – who, it must be noted, are in commercial practice.
Collective management is well established in some sectors, but remains to be deployed in others. It was also reported that the royalties paid are generally considered insufficient, which was to be expected.
When questions were raised that were linked to globalization or new technologies – phenomena that are connected even though they may evolve autonomously – a number of respondents spoke about the regulatory framework and cultural diversity. Beyond direct effects that vary from sector to sector, there is a systemic effect, and so the response has to be similar in nature. In this sense, national and supra-national regulations were identified as tools; and the importance of such a regulatory framework was emphasized a number of times. Cultural diversity is seen as a bulwark against the homogenisation that globalization entails, and it too operates at this level.
A number of associations in the audiovisual sector talked about co-production and the global phenomenon of reality TV. The audiovisual and music sectors seem to be the most threatened in the short term; writer-composers are the only people involved in the recording industry who are calm in the face of the new technologies, including the Internet.
Other associations, less directly affected, are staying on their guard, not losing sight of the fact that it is important to see these issues as being part of the big picture from which they would be unwise to believe themselves exempt.
The new technologies have greatly changed practices for photographers. Film is on the way to extinction, and digitisation requires major investments. Much time is devoted to work on computer. Work organization is also changing, and technology, while democratizing certain media, means that individuals take on additional functions, such as direction and camera. Practices are thus evolving as a function of new technologies.
Also mentioned was the difficulty of determining what constitutes an original. For example, set designers no longer produce cardboard models. Instead, they use computer modelling, and dematerialization introduces certain difficulties: the computer file can easily be reproduced.
E-commerce is being established here and there. For some, the new technologies are seen as an opportunity. The creation of a repertoire of plays on line (ADEL) takes advantage of this idea. For others, there are greater reservations. For example, a number of composers from the Centre for Canadian Music send their scores as computer files, but the sale of scores is still always done on paper, and there is hesitation about putting the scores on line. There are thus different attitudes among the associations.
On the marketing level, image banks are one of a very few lucrative sectors on the Internet. Previously, catalogues were used. They are still available, but one respondent estimated current on-line business volume at 40 percent. E-books do not enjoy similar popularity and seem far from making a significant breakthrough. In radio and television, some attempts have been made, but it appears that the type of use and the economic model remain to be developed.
According to a number of associations, globalization and new technologies oblige artists to form groups to constitute a force capable of carrying on a discourse regarding cultural diversity and the protection of the Canadian model of policies and legislation.
One respondent in the music industry mentioned that the exceptions introduced for the education sector were not as hard a blow to the music sector as schools constitute a less important source of revenues than do other types of use. But this is not the case for other sectors like theatre, for instance, where there was a major loss. This is one of the perverse effects of exceptions: they do not affect all sectors equally, and even if they did, the principle of seizure, which is behind this measure, can not be justified. There is no reason, according to respondents, for the artist to be the one who pays the price.
Another respondent noted the introduction of exceptions seems to be a legislative technique that weakens the general scheme of the statute. Negotiation between a management collective and a user has proven to be a more satisfactory mechanism, allowing all uses to be taken into account and an overall agreement to be reached. The introduction of exceptions shrinks the revenue pie and reduces the power that collective societies acquire through volume of use.
In general, it seems that members have little knowledge of electronic rights and the related issues. On the one hand, artists are naturally, mainly concerned with their professional practice; on the other hand, the complexity of the issues probably does not augur well on the pedagogical level. However, this does not mean that artists know nothing about new technologies. On the contrary, many, in some sectors especially, are very up on the very latest.
Attention was also drawn to the fact that some creative artists, especially younger ones, belong to the movement called Copyleft, which opposes the private appropriation of works protected by copyright.
Uses on the Internet are generally not mentioned in collective agreements, and so they are covered by individual contracts. However, it seems that artists do not see the point in fiercely negotiating this use, which is thus often obtained at a low cost for up to fifteen years and may be automatically renewed. For photographers for whom Internet use is one among a group of uses, the Web is not currently a major object of negotiation. An example was also given of DVD movies to which are added, for example, a documentary on the shooting or an interview. In short, items considered added value for consumers. Very often, artists do not receive remuneration for this material, nor is it an issue in negotiations.
Artists do not always know that their works are on the Internet. They find out by chance or they are told. Unauthorized uses are thus a long way from being exhaustively tracked. Texts are not necessarily found on line in their entirety. In general, artists react negatively when they find out, because the use of their works has escaped their control. The extent of the distribution of works may be a decisive factor in the way that this type of use is understood. For instance, for members of CMC, it is a form of dissemination. Musicians who want to be “discovered” place their entire catalogue on the Internet. The idea that the Internet offers a form of democratization was evoked as part of the reasoning behind artists’ attitude to this new medium. SPACQ’s writer-composers are aware that they are losing a source of income, but their share is so minimal compared to that of other players that they do not see the situation as catastrophic for themselves.
The technological measures taken to ensure security of works on line was raised. Image banks protect their images; the same thing could be done with texts, as has been done with plays put on line. There are fears and questions regarding technological measures, and therefore authors must become informed. One association requires them to send texts on paper rather than by electronic means.
The audiovisual sector seems to have been little affected to date, but it was felt that it is simply a matter of time. It was clear that the music sector is the one most identified with these issues.
The paternity of copyright and the possibility of its being subject to arbitration, are issues posed by the Desputeaux case, which had particular importance for one association because of the dispute-resolution mechanism that is used to solve difficulties of this nature. UNEQ and CMA appeared before the Supreme Court to defend this position, while RAAV considered it a question of public order and therefore beyond the reach of arbitration. Artists thus do not have a unified position.
The elevation of the notion of balance to the status of jurisprudential criterion is disturbing. The American influence is perceptible, according to respondents. Also noted was the expansion of fair dealing. These elements obviously do not please artists, as they see the justices’ interpretation of the Copyright Act as limiting the scope of their rights.
For visual artists and commercial photographers, the Théberge ruling calls for an amendment to the Copyright Act to deal with the notion of reproduction.
At the outset, we must distinguish between associations falling under Act S-32.1, which covers theatre, recordings, and film, and those falling under Act S-32.01, which covers visual arts, arts and crafts, and literature. For those who are not familiar with provincial legislation on the status of the artist, Act S-32.1 sets out an obligation to negotiate that does not exist in Act S-32.01. In addition, modifications have been made to Division II of Chapter III of this statute that affect contracts between artists and exhibitors or distributors. Division II was previously titled “Group Agreements Respecting Minimum Conditions of Circulation.” One section was modified and another was added,22 and the title was changed to “General Agreement on Circulation Contracts.” The essence of the modification lies in the fact that the government can regulate the circulation contract, and that the term used is no longer “group agreement” but “general agreement.” Of course, the opinions gathered on “group agreements,” as they were then called, are related to the Act before it was modified.
It should be mentioned as well that at the federal level, there is only one Status of the Artist Act, but this statute has a much narrower field of application, as it applies only to federal institutions and to broadcast companies, including distribution and programming, falling under the jurisdiction of the Canadian Radio-Television and Telecommunications Commission.23
These preliminary remarks are intended to give the reader a context for the statutes on the status of the artist. The statutes constitute an important framework when issues regarding contractual relations between artists and promoters or between artists and producers are addressed.
Among the artists’ associations interviewed, all of those covered Act S-32.1 have collective agreements with producers. Thus, the mechanics laid out for negotiations work. The number of agreements varies, of course, from association to association. However, a modification to the statute made in 1997 allows a first collective agreement to be subject to arbitration at the request of only one of the parties. For a number of associations, this amendment enabled the resolution of the impasse in negotiation.
None of the associations falling under Act S-32.01 currently has an agreement with a presenter or producer. No doubt, due to the above-mentioned legislative modifications in relation to this aspect of things, the associations covered by this statute feel that the development of agreements with promoters has been problematic in the absence of legal provisions that could offer them a certain degree of power. It is not the intention to comment here on the recent amendments to the Act, but to explain the major differences between the associations falling under one or the other of the provincial statutes.
As mentioned above, all of the associations are certified under the federal statute, but not all have agreements. The type of activity that the association’s members are involved with has a definite impact. Associations with strong connections with broadcasters generally have agreements that are called “scale agreements” in the federal legislation.24
In a number of cases, obtaining a collective agreement does not seem to be shoe-in. It may be useful to note how long some negotiations lasted. SPACQ signed an agreement on commissioned musical works in films with APFTQ (Association des producteurs de films et de télévision du Québec) after twelve years of negotiations. At the time, APTFQ was negotiating other agreements; but the fact remains that the time span is an objective measure of how slow the process is. ARRQ has been negotiating for a television agreement with APFTQ for twelve years. The parties have been in arbitration for four years. ARRQ also has a movie agreement in effect which APFTQ said it would not sign today. One section of the agreement stipulates that the director is the author of the film. Although the director assigns his or her rights in the following section, there is no desire, it seems, even to state that the director is the author. AQAD signed its first agreement with TAI (Théâtres associés inc.) which covers large theatres in Quebec. Negotiations took seven and a half years and the affair was settled through arbitration. APASQ’s negotiations with the Association des producteurs de théâtre privé lasted seven years; the arbitration process resolved the impasse. The renewal of APASQ’s first agreement with ACT (Association des compagnies de théâtre) took three years. In this regard, renewing collective agreements can be difficult since the mechanism set out in the statute to obtain a first agreement is not extended to subsequent agreements. The first agreement between an association and a producer is therefore extremely important.
Following a decision from the CRAAAP (Commission de reconnaissance des associations d’artistes et des associations de producteurs), AQAD had to confine itself to negotiating rights on commissioned works. APASQ met opposition due to this decision when it was negotiating with the same partners as AQAD. It was mentioned several times that the negotiations often hit a snag when copyright was discussed. The question of whether use of existing works could be included in the agreements was problematic. UNEQ, in its only agreement that is a scale agreement with the Department of Canadian Heritage, had real difficulties introducing provisions governing the use of pre-existing works. One must read section B of the agreement to see how arduous these discussions were and how much they slowed the negotiation process.25
Also mentioned was the fact that the negotiation process understandably entails costs which are an impediment for many.
At the time of this study, no producers’ association had yet been recognized. Because of this, producers who are not members of associations do not fall under collective agreements. They must therefore proceed individually which can be cumbersome. UDA said that it had an annual volume of 500 letters of agreement with producers. This is a large number, and there is certainly a cost involved with this way of operating.
UDA deplores the fact that the minimum conditions become standard conditions. The producer wants the most for the least amount of money, even if exploitation is much more highly developed than previously. The range of rights granted is also an important issue. When a work is commissioned, writer-composers have managed to impose an exclusive licence rather than a assignment, which had been the norm.
The Guilde des musiciens, which manages about 250 collective agreements, the vast majority of them in Quebec, addressed another aspect of status of the artist legislation: the notion of producer. For example, in a situation in which the artist will be the producer and the other party will pay social benefits wearing the hat of “promoter,” the collective agreement does not apply. In fact, the Guilde is signing fewer and fewer agreements.
On the visual arts side, the agreement with Artimage (a project of three major Quebec museums) enabled artists to receive royalties for the use of their works on the Artimage Web site. The agreement had a two-year term and was not renewed. It is still very difficult to negotiate with museums.
In spite of what has been said about obstacles, resistance, and restrictions, agreements have been concluded. One association said that without Act S-32.1 obtaining agreements with independent producers would have been unthinkable. In some cases, the association would not exist without the provincial statute.
It was mentioned above that a lack of human and financial resources impedes the start of the negotiation process in some cases. One respondent also spoke of some inconsistencies. Recognized associations have a serious legal mandate and must exercise the power, conferred on them by law, to represent a group of artists. In this particular case, had there not been financial assistance from the Department of Canadian Heritage and a foundation, the revenues from Quebec would not have been sufficient. In the same vein, another association stated that it had received a grant from the federal government to negotiate an agreement with a federal government department. The underlying question thus posed is whether the funding of associations actually is adequate for the job. If the associations cannot obtain agreements, it is ultimately their members who are penalized.
There is an obvious division among associations that fall under Quebec statutes. Act S-32.01, beyond having a structuring effect has proven to be virtually inoperable for collective agreements. At the level of federal law, the fact that there is an obligation to negotiate is positive. However, the difficulties encountered by UNEQ with regard to the use of existing works is an irritant for the use of pre-existing works constitutes an important part of their members’ activities.
For people who fall under Act S-32.1, there were some sectors used to negotiating by mutual agreement who saw their individual contractual relations transformed into collective ones. In other words, there was a major paradigm shift in some sectors while in others, where collective relations had already been developed, the change was not as radical. In some cases, members know little about what the association is and what it can do. Often, the collective agreement provides the gateway and the only link to the statutes on the status of the artist. The assistance that the association may provide to individuals is also a bridge to establishing communication.
When craftspeople decided to organize to manage copyright, the CMA solicited its members, and 100 of them expressed an interest in the first three months. The conclusion that can be drawn from this is that an awareness has developed that can be traced to the structuring effect of Act S-32.01.
The commission’s slow pace of action was mentioned, although no cause for it could be discerned.26 The fact that the commissioners are appointed ad hoc slows down hearings. A lack of resources may be responsible, but for whatever the reason, the assessment seems to be shared. Some respondents suggested that the commission was not ambitious with regard to its jurisdiction compared to the Canadian Tribunal, which, respondents felt, also had broader powers. It was noted that for those involved in dossiers that are the slightest bit complex, high costs were incurred – and the risk is even higher because many associations have a precarious financial base. Judicial guerrilla warfare may be a means of vanquishing an adversary and executing a strategy. One respondent noted that he had experienced this situation.
The difficulties encountered by UNEQ during negotiation of a scale agreement with the Department of Canadian Heritage have been mentioned above. Following this experience, the association was somewhat sceptical about the federal statute, which was thought a priori to be more generous than Act S-32.01. The tangible results of this agreement are still not known. Did the dossier bear fruit corresponding to the amount of effort expended? This will be assessed before renegotiating. The narrow field of application for certain associations is one factor being evaluated. Nonetheless, the recognized Quebec associations have all sought federal certification. The Tribunal is seen as prompt, and is appreciated. Of course, people compare the Commission de reconnaissance to the Canadian Tribunal, and it suffers by it. It was mentioned that people have the impression the Tribunal does give artists the potential to benefit from the Act.
Yes, there are provisions targeting copyright in certain collective agreements. There is also a contractual framework covering those who are not authors in the sense of the Copyright Act. Regarding electronic rights, these are not yet well developed. As for broadcasters, advertising revenues have little in common with traditional broadcasting, so this use is not well contained in collective agreements at the moment.
In publishing, there tend to be generally fewer problems with large publishers. With small publishers, there are no rules. In visual arts, relations with the large museums have been tense. Craftspeople said that when their work is reproduced or exhibited, they have the same issues as do visual artists.
It was mentioned that during negotiations with producers’ associations a group of practices must be considered, and that it can be difficult to take this “mosaic” aspect into account. The application of agreements is also problematic in this context.
The Centre for Canadian Music noted that composers have little awareness of their rights. When composers sign a contract with a publisher or record producer, legal questions are low on their list of concerns, as they are, understandably, happy to see the door open to dissemination of their work.
At UNEQ, more or less the same thing was reported: the symbolic value of publication is such that concerns regarding rights are not very important for many authors. There are many who are prepared to pay and who in fact do pay to be published.
These are certainly not the only sectors in which recognition is a lever so powerful that it takes precedence when the obligations of the parties resulting from a contract are discussed.
The CMC also gave the example of the rental of orchestral scores. Orchestras often grumble about the amounts they have to pay. Rates are by the minute – they can afford to play only one movement! At the same time, composers are hesitant to increase the costs, because they feel the orchestras will not play their works.
In fact, while contractual practices are often not in the artists’ best interests, the artists themselves come to fear being too demanding. They are worried about being shunted aside. This is a reality for some visual artists, as museums deal directly with artists and try to bypass the collective, which would be more demanding. For the artists, asserting their rights can result in their being left out. From this point of view, when contracts are made by mutual agreement, artists are at a clear disadvantage. Standard contracts are a response to difficulties posed by individual negotiation. We will return to this issue below.
There is much education to be done regarding rights. Writer-composers at SPACQ have many questions regarding music-publishing contracts. It was mentioned that most publishers of contemporary concert music are in the United States or Europe. The lack of proximity means that composers have little control over the publisher’s work. They must take care of business themselves sometimes when they have not been paid.
This brings us to the payment part of the contract, which is often disadvantageous when the parties negotiate individually. Whether it is for honoraria or royalties, individual negotiation is hazardous. The association often intervenes after the contract is signed. ARRQ stated that the honoraria are “appalling.” Licences granted without monetary compensation also exist.
To overcome these difficulties, UNEQ mentioned that it alerts granting agencies when publishers do not respect their obligations with regard to copyright. This procedure also shows the very limited effectiveness of the individual contract in protecting authors’ interests.
Even though the statute provides a framework for certain aspects of contracts and even when the stipulations on the elements identified in s. 31 of this statute27 are in the contract, there is not necessarily any correction in the balance of forces. Nor does it appear that the prescriptions of the Act have been systematically integrated. In any case, it does not seem that this has been satisfactory.
When it comes to moral rights, there are very wide variations in practice. In some sectors, the integrity and paternity of the work are taken for granted. In the theatre sector, for example, there is no practice of waiving moral rights.
Nor is there a waiver of moral rights by authors in the audiovisual sector. SARTEC’s collective agreements provide a framework for, among other things, credits in the credit roll by importance and rank, and they propose various relevant credits. Among directors, adaptation of the work to the television format, which is variable, necessarily affects the integrity of the work to the point that it is no longer clear which is the original work. The final cut is an issue, and the director’s authority is not full and complete.
Between waiver pure and simple, which does not seem to be widespread, and the contractual framework, the latter route seems to be favoured. For example, in some agreements commercial photographers allow for alteration of their photographs. In image banks, permission is always given. Use of a part of the photograph is even allowed. For example, the sky may come from one photograph, the tree from another, and so on. The new technologies allow for much greater manipulation of works this way. However, this type of practice is found in a commercial world of practices as opposed to “artistic” practices, even though it may be difficult to interpret this characterization. It is also noted that in advertising it is more likely that a fragment of an artistic work will be used or that the work will be reframed; visual artists tend to want the their work to retain its integrity even in contexts where customs seem more lax in this regard.
Commercial photographers are also commissioned to produce photographs that are the same as ones identified by the client. This, of course, puts photographers in an extremely delicate position; the practice is described as a “scourge.”
When collective agreements exist, the use of a standard contract has developed for whatever is beyond the field of application of the agreement. Thus, it is not surprising that a standard multimedia28 contract has been developed at SPACQ and SARTEC.
Understandably, it is to the benefit of associations governed by Act 32.01 to develop standard contracts. How much such contracts are actually used is not clear. However, they are useful tools for artists during negotiations. Two approaches were mentioned. AQAD, though governed by Act S-32.1, has developed standard contracts that parties in good faith should be willing to sign as these contracts take into account the realities of both sides. The standard contracts developed by RAAV function more as models. The writing of a standard contract that is not obligatory of course has a variable impact on practice. The result, nevertheless, is an articulation of the rights and obligations that takes account of the artist’s reality. Such contracts certainly have an educational function and make artists more aware of their rights.
Some aspects of the situation have been mentioned. However, putting texts on line seems to be a niche that may develop as has already happened with ADEL.
Craftspeople have begun marketing their work via on-line stores making use of the new technologies.
Contracts by mutual agreement, such as a book publishing contract, may include the assignment of electronic rights. However, we do not know how negotiations are conducted or if this aspect is important enough to constitute a central element of the negotiations.
Of course, collective agreements provide mechanisms for dispute settlement: joint committee, mediation, arbitration. AQAD has an agreement between co-authors that provides for a mediation and arbitration mechanism. SARTEC also has a mechanism for arbitrating disputes between authors.
Although many respondents were not able to answer this question, those who did give an opinion said that contracts were a greater threat than illegal use of their works by users.
Associations that have collective agreements may integrate a social security fund, provide insurance, and regulate these mechanisms within the agreement. Of course, the size of the funds to be managed is a function of the sums generated by the agreements.
When there is no collective agreement, a basis must be developed for collecting funds. This could be, for example, a percentage on royalties charged.
The problems experienced by some artists concerning the CSST (Commission de la santé et de la sécurité du travail), for example, must be resolved so that the artists’ issues are taken into account. It is understandable that acrobats, sculptors, and dancers may be more interested than authors in this type of issue. Thus, the development of a social safety net is a very important issue for some, while it is less of a priority for others. All agree that a coherent normative package must be developed, so that artists will benefit from social coverage to the same extent as all other citizens.
Certain cases brought up by artists’ associations reveal the difficulty with characterizing the income that artists generate through their economic activity. One writer-composer was asked to reimburse the social assistance funds that he had received for an entire year because he had received royalties amounting to about $100. Writers had similar experiences with fees paid out by the Public Lending Rights Commission. Other associations had similar examples.
Various elements were identified with regard to these general questions. Copyright is a central concern. Some said that they are uneasy about the fact that the Copyright Act provides protection to software, for example. It was felt that authors are not necessarily the primary concern of the statute and that this may end up helping those who want exceptions to obtain them. The dichotomy between author and rights holder also provokes anxiety. When copyright is assigned, authors no longer have an economic stake in their work. Rights holders are still, all too often, other entities. In the wake of the CCH decision, fair dealing and the expansion of users’ rights are also of concern. The fact was emphasized that elsewhere in the world the “monopoly” of collectives is being contested, while artists had wanted to strengthen their bargaining position. This also constitutes a threat. New technologies and globalization are putting pressure on copyright, and the remuneration that might be attached to emerging new practices has yet to be seen. The important background issues are the survival of the regulatory framework and foreign ownership.
Recognition of the author’s status; awareness of the laws, rights, and implementation of practices; the establishment of a framework for negotiating with promoters; and an adequate structure for management of rights were identified as major concerns by some respondents.
Social security is an extremely important issue for some associations. The contractual framework for use of all components of an artist’s performance is similarly critical issue for some, but not all. And, according to one association, changes will have to be made in the culture for fair remuneration to become the norm.
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©2005 John Lorinc and Maryse Beaulieu. This study was produced by the CCC and DAMI© for Canadian creators. You may reproduce this work for non-commercial, purposes, without alteration or amendment, in whole or part, provided you give credit to the authors and source, so please feel free to disseminate and share freely. A licence for commercial use of this work is required and may be obtained from Access Copyright, Copibec, the Creators' Copyright Coalition, DAMI© or the authors. This study was conducted with funding from the Department of Canadian Heritage • Webpage design: Patrick Davidson • The outline map of Canada used in the logo is from The Atlas of Canada, as compiled and produced by Natural Resources Canada, and is used with permission
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