Evidence of meeting #11 for Bill C-32 (40th Parliament, 3rd Session) in the 40th Parliament, 3rd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was artists.
A recording is available from Parliament.
National Executive Director, Alliance of Canadian Cinema, Television and Radio Artists
I don't think so. I think the gas company just cuts off your gas.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
They probably would have the proof that you're actually....
National Executive Director, Alliance of Canadian Cinema, Television and Radio Artists
Yes.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
They'd get in a lot of trouble cutting off people's gas when they haven't proven that there's-—
National Executive Director, Alliance of Canadian Cinema, Television and Radio Artists
Obviously it's got to go a month, or two, or three. Then they send bills, and then they have somebody come over. Eventually they'll cut off your gas.
Conservative
Mike Lake Conservative Edmonton—Mill Woods—Beaumont, AB
Just because you say someone's infringing, it doesn't mean they are.
Conservative
The Chair Conservative Gord Brown
Thank you to our panel. Thank you to members of the committee.
We're going to take a short recess, and we'll come back with our second panel.
Conservative
The Chair Conservative Gord Brown
We will call this 11th meeting of the special Legislative Committee on Bill C-32 back to order.
For our second panel, we have quite a number of witnesses representing three different groups. From the Art Dealers Association of Canada, we have Patricia Feheley, Johanna Robinson, and Miriam Shiell; from the Canadian Artists' Representation, we have April Britski and Anthony Urquhart; and from the Regroupement des artistes en arts visuels du Québec, we have Christian Bédard and Nadia Myre.
We will hear from the Art Dealers Association of Canada first. You have the floor for five minutes.
Patricia Feheley Member of the Board of Directors, Art Dealers Association of Canada
Good morning. My name is Patricia Feheley, and my colleagues and I represent the Art Dealers Association of Canada. We would first like to thank the chair and the honourable members of the committee for inviting us to appear today.
The ADAC is the only national association representing professional commercial art galleries and dealers. We are the major driving force behind the art market. I'm appearing here today with two colleagues from the ADAC: Johanna Robinson is the executive director of the association; Miriam Shiell is the immediate past president and is a senior dealer in both the Canadian and international art markets. I have a commercial gallery specializing in contemporary Inuit art as well as selected first nations artists.
The art market in Canada is increasingly fragile. Consumer spending on art in Canada plunged between 2000 and 2008 by 20.3%. Exports of works of art, central to sustaining a strong Canadian art market for our artists, fell in the same time period by over 25%. The average artist's income is pitifully low.
We did not prepare a formal brief regarding Bill C-32 because we have few objections to the majority of the provisions and because this is better addressed by our colleagues in the other cultural subsectors. Most of the provisions of Bill C-32 support our own view that it is essential that all creators retain not only control over their works but also rights to any secondary revenues.
We're particularly supportive of mandating a review of the Copyright Act every five years. In fact, we agreed to appear here today simply because we have been aware of a concerted effort to include in Bill C-32 a provision for artist resale rights or droit de suite, a provision that would allow certain artists to share in revenues from secondary market sales of their works. For the remainder of this statement, I'll refer to this provision as ARR.
Our position is simple: it is premature and it would be irresponsible to add these rights into Bill C-32 at this time. There are many negative aspects that must be considered. It is an extremely complex issue, one that could affect the art market in this country. This impact could be serious enough to warrant considered thought, research, and consultation, which takes time. In our estimation, this time will not be allowed if ARR is added to Bill C-32 at this late date.
Consider the following. We are the business professionals who are most intimately connected with the local and international art market. Neither the ADAC nor the auction houses, which are also major stakeholders, have even been consulted on this issue. Consider the countries that have signed on to the ARR. The United States, with the exception of California, has not implemented it, nor has Asia. The former is the strongest market for Canadian contemporary art; the latter is considered one of our fastest-growing art markets.
A considerable amount of the European art market has been moved to Switzerland, a major European art centre. Switzerland does not recognize it. In Europe there are fundamental problems with the design and implementation of the ARR. Protests have been lodged, both by dealers and by artists. A considerable amount of the European art markets have moved to Switzerland and even to New York.
Based on the European experience, ARR will most often have to be absorbed by art dealers. Typically, commissions for secondary market sales range from 10% to 20%, as we must compete with the auction commissions. An additional 5% is considerable, and it will have to be factored into the resale; that is to say, the resale price will go up. Ultimately, it is the consumer who will pay. Knowing that a 5% tax will be assessed when a work is sold could be a major disincentive to collectors in a fragile art market, particularly, as happens frequently, if the collector is selling at a loss.
It is our opinion that much of the secondary art market will either go underground or leave the country, masking any gains to artists' reputations that the secondary market has.
The expense should also be considered. Both small business and government will have to ensure that it is properly implemented and monitored--for instance, monitoring for compliance when it goes outside the common marketplace, such as to eBay sales. Revenue Canada will have to consider the ARR for both deductions and donations.
Most importantly, secondary market sales that would be counted for ARR account for only a very small portion of the total art market in Canada. Within this small proportion, the benefits will accrue only to a small percentage of artists.
According to a recent study of the ARR in Britain, the top 10% of artists shared 80% of the total amount collected.
In France, 70% of the amount collected goes to seven artists and their families.
Conservative
The Chair Conservative Gord Brown
All right. Thank you very much. We're going to have to wrap it up.
Maybe you can expand a little bit more during the round of questioning.
Member of the Board of Directors, Art Dealers Association of Canada
Thank you very much.
Conservative
The Chair Conservative Gord Brown
Thank you.
We'll move along now to the Canadian Artists' Representation.
April Britski Executive Director, Canadian Artists' Representation
Good afternoon.
I'm April Britski, national director of CARFAC. With me is member Tony Urquhart, a visual artist from Colborne, Ontario.
CARFAC is the national association of professional visual artists, of which there are approximately 17,000 across Canada.
We thank you for the opportunity to speak today about copyright as it applies to visual artists.
We are pleased with some aspects of the bill as presented, including new rights afforded to photographers, portrait artists, and engravers. We also have some concerns about certain amendments, which our colleagues from RAAV will speak about more specifically.
I will focus on a proposed amendment that artists would like to see added to the bill, the artists' resale right, or le droit de suite.
The artists' resale right entitles visual artists to receive a percentage royalty payment from all subsequent public sales of their work, through an auction house or a commercial gallery. The resale right would allow artists to share in the ongoing profits made from their work.
The full value of an artwork is rarely realized on the first sale of an artwork. It is common for art to appreciate in value over time, as the reputation of the artist grows. An example of this is the recent sale of one of Mr. Urquhart's pieces, titled The Earth Returns to Life, which sold for approximately $250 in 1958 and was resold by Heffel Fine Art in 2009 for $10,000.
The addition of the resale right will mean a new income source for visual artists. This is important, because half of all Canadian visual artists earn less than $8,000 a year, with average earnings of $14,000. Senior artists, who are most likely to have work in the secondary market, have median earnings of $5,000. We've found that even award-winning senior artists find it difficult, if not impossible, to earn a living from their art.
Additionally, many aboriginal artists, particularly those living in northern isolated communities, are losing out on tremendous profits being made on their work in the secondary market, where price markups are dramatically higher.
Canadian artists are missing out not only on royalties from work sold in Canada, but also when their work is sold in other countries. Once established in Canada, artists would benefit from reciprocal arrangements with other countries where the resale right exists, and it would align Canada with our trade partners in those countries. The law was first introduced in France in 1920 and has since been legislated in 59 countries worldwide, including the entire European Union, and more recently in Australia. We base our proposal on the experience of how the right has been applied elsewhere.
The Canadian art market is growing, and auction sales break new records every year. A sale last November of Alex Colville's piece, titled Man on Verandah, resulted in a record-breaking hammer price of $1,287,000, purported to be the highest sale achieved for a living Canadian artist.
Twelve other personal-best records were broken that evening. Most artwork sold in that sale fetched much lower prices, but if the artists' resale right had been in place, senior artist Rita Letendre would have received royalties of $790, and a young and newly established artist like Kent Monkman would have received $4,400.
These are hardly figures that will cause a multi-million dollar market to collapse, and yet they are meaningful nonetheless. While the market grows, artists currently receive no profit from those sales. It is important to remember that this is a royalty based entirely on commercial sales of an artist's work and will cost the government nothing.
With copyright, ownership and duration of rights are more complex than they are for most other physical objects, such as houses or cars. Artists retain their copyright when their work is sold, unless they assign them. With respect to visual art, we're talking about intellectual property, related to a physical object. Other artists, such as writers and composers, retain the right to financial benefit from subsequent uses of their work.
The resale right acknowledges that an artist is an important contributor to their work's value, and without the artist, the artwork simply would not exist.
Thank you.
Conservative
The Chair Conservative Gord Brown
Thank you very much.
We'll move along to the Regroupement des artistes en arts visuels du Québec.
Christian Bédard Executive Director, Regroupement des artistes en arts visuels du Québec
I would like to thank the members of the committee for inviting us to speak today. I am Christian Bédard, Executive Director of the Regroupement des artistes en arts visuels du Quebec (RAAV), which represents over 3,000 visual artists.
I am accompanied by Nadia Myre, a well-known first nations artist from Quebec. Her work has been exhibited throughout Quebec, Canada and the world.
Along with CARFAC, RAAV is asking for the inclusion of the artists resale right in the Copyright Act. To illustrate the importance of that, I want to share with you the story of one Quebec artist. A painting by Marcel Barbeau was practically given away in the 1950s. In 2008, it was resold by the heir of the person to whom it had been given, fetching $86,000. The proposed royalty rate of 5% would have helped the artist, who is ill and can use all the income he can get.
In addition, RAAV would like to underline other aspects of Bill C-32 that we are concerned could pose serious problems for visual artists in Canada and Quebec. These artists are, for the most part, self-employed workers who are trying to make a living from their artwork. The federal government should not undermine their capacity to do so.
Since the recognition of the exhibition right in the Copyright Act, in 1988, many visual artists have seen their income grow substantially. Unfortunately, the mention of a cut-off date in the act, June 8, 1988, means that all works produced before that date are not covered by the exhibition right, which effectively discriminates against senior artists. That is why we respectfully ask the members of this committee to stop the discrimination against aging artists by removing the following words in the Copyright Act: "created after June 7, 1988".
RAAV salutes the government's intention to recognize the copyright of photographers, printmakers and portrait artists. But clause 38 of the bill reduces the capacity of these artists to be fairly remunerated for the uses of their works. That is why we are asking the committee to recommend the complete withdrawal of clause 38 from Bill C-32, in order to allow photographers, portrait artists and printmakers to fairly share in the wealth created by their work.
Finally, no other clause of Bill C-32 may be as damaging to visual artists in Canada and Quebec as the one including education among the fair dealing exceptions. This new exception will likely become a permanent source of lawsuits between artists, on the one hand, and organizations and individuals that claim to be providing educational services, on the other hand. Artists cannot afford to pay astronomical legal bills.
For visual artists, all of the income from classroom presentation of their works could be at risk, just as reproductions in textbooks could no longer be subject to remuneration. Our biggest concern is that public galleries may claim they fall under this exception because their mandates include education. Galleries are the main source of copyright income for visual artists. Because we don't know what a judge will decide is "fair" in our artistic sector, it is quite possible that this main source of income for visual artists will dry up for good. That would mean the end of the exhibition right for which we have fought so many years to obtain.
Consequently, along with more than 90 other cultural organizations that have signed the Canadian Cultural Industries' Joint Statement on Bill C-32, we are asking for the withdrawal of this clause from the bill. These recommendations may seem incidental to you, but they are very significant for visual artists. Canada must not hurt the daily efforts of its visual artists to achieve financial independence.
I will stop my presentation there to leave time for discussion of our recommendations.
Conservative
The Chair Conservative Gord Brown
Merci.
We'll move to questioning.
We'll go to Mr. Rodriguez for seven minutes.
Liberal
Pablo Rodriguez Liberal Honoré-Mercier, QC
Welcome.
Good afternoon and welcome.
Let's set aside the technical and legislative considerations related to artists resale right, for the moment. If we look at the issue from a more human and logical perspective, it does not seem all that unusual for individuals who have created something to be compensated when their work is resold, if only a small return on the selling price. I know of a number of paintings that have been sold at extremely high prices without the artists receiving a dime, even when they and their families were very poor. All the while, their works were being sold at auctions, where people were concerned about who the highest bidder would be.
I understand your concerns, but the system appears to be working in 59 countries. I do not believe their markets collapsed. It will be a challenge for you, but I do not think the market will collapse, as a result.
I would like to hear your response to their statement that, in European countries or certain ones, the top 10% of visual artists received 80% of the income. If we include this measure in the bill, are we helping the already rich and famous? Could the measure benefit a lot more people than that?
Liberal
Past President, Art Dealers Association of Canada
The answer is yes, and the experience has been--and the most recent data comes out of Britain, who are newcomers to the ARR--that 80% of the collected funds go to 10% of the artists, most of whom are the superstars of the art market. So there is no real evidence that this is actually helping the average artist in the field. The amounts that are going to artists are trivial after expenses, which are, by the way, quite considerable.
So it's a band-aid solution. It's an excuse for making other real changes to how artists receive....
The best way that artists can make a living is by a healthy art market. Using a few examples of superstar artists at auction is not reflective of the true art market.
Liberal
Pablo Rodriguez Liberal Honoré-Mercier, QC
But I think you don't perceive things that way. Do you have any comments on that?
Executive Director, Canadian Artists' Representation
My understanding is that when they introduced the law in the U.K., they made the threshold minimum sale price that's eligible for the resale right be roughly a thousand pounds. That actually was a recommendation so that more artists who are not the Damien Hirsts of the art market would receive more royalties.
If I look at a sale that happened in Canada, for example, in November at Heffel Auctions, there was one piece, as I mentioned, that was sold for $1.3 million, but the majority of resale royalties that would have gone to artists involved in that auction would have been considerably lower. There were about 13 artists involved in that sale where the royalties would have been between $350 and $4,400. So the majority of artists involved in that auction were not the big art stars who would be receiving huge royalties.
Nadia Myre Visual Artist, Regroupement des artistes en arts visuels du Québec
Can I jump in for a minute?
Liberal
Pablo Rodriguez Liberal Honoré-Mercier, QC
No, just a second.
If I understand correctly, Mr. Bédard, there is also a component of reciprocity. As long as Canada does not extend the resale right to its visual artists, they cannot collect royalties when they work in other places, such as in Europe, where the resale right does exist. Is that correct? We must recognize the resale right here in Canada, before our artists can benefit from that same right elsewhere, under a reciprocal arrangement.
Executive Director, Regroupement des artistes en arts visuels du Québec
Precisely. As with any copyright agreement, the principle of reciprocity applies.
Clearly, if Canada does not adopt the resale right, Canadian and Quebec artists whose works are sold in European countries such as France or England—where that right does exist—will not be able to benefit, much the same as foreign artists cannot benefit here in Canada. It is a matter of reciprocity.