Good morning. Thank you for inviting us to speak today.
I'm the executive director of the Regroupement des artistes en arts visuels du Québec, or RAAV. With me today is our president, Moridja Kitenge Banza, who is a visual artist.
In its brief, the RAAV calls on the committee to consider a series of measures concerning the review of the Copyright Act and related measures aimed at ensuring better remuneration for artistic creation in the plastic and graphic arts.
We will start with the issue of exhibition rights, which is specific to the visual arts, and then move on to fair dealing and the education exception, which applies to various categories of artistic works protected by copyright.
Since exhibition rights were established in the Copyright Act in 1988, many visual artists have seen a significant increase in their revenues. The payment of royalties for the exhibition of their works for purposes other than sale or rental has gradually become the norm. Unfortunately, the date of June 8, 1988, mentioned in the act means that all works produced before then are not subject to exhibition rights, which is absurd. As a result, artists who are seniors and the heirs of deceased artists are excluded. This date clearly results in indirect age-based discrimination since, logically, the works produced before June 8, 1988, are by older artists.
In our opinion, this limitation based on the date of creation could be a violation of section 15 of the Canadian Charter of Rights and Freedoms. Over time, this date is becoming increasingly arbitrary and further isolates older artists. We realize that at the time, applying this right to works created after this date minimized the financial impact of the new royalty on museums and galleries. However, 30 years later, this argument no longer holds water. The payment of exhibition royalties should be the norm, regardless of the date when the work was created and, indirectly, the age of the artist who created it.
Artists tend to be older on average. A survey of our membership showed that the average age is 59 or 60. You can imagine a scenario where certain artists in a show receive exhibition royalties and others don't. Those being paid would be the younger artists, while the older artists would be deprived of royalties for their older works of art.
Karl Beveridge, a Toronto-based artist, told me that when one of his shows was touring Canada, he got paid by some galleries but not others. We think that makes no sense. That is why the limitation in subsection 3(1)(g) should be eliminated.
When Copyright Act was last reviewed, we raised serious concerns about the fact that introducing a new fair dealing exception for education could have a significant impact on artists' revenues. Sadly, our concerns proved to be well founded.
You have received briefs from various copyright collectives, including Copibec, Access Copyright and Copyright Visual Artists, that eloquently illustrate the negative effects of this exception. After the exception was introduced, certain universities reacted by establishing their own fair dealing guidelines. For example, Laval University did not renew its collective licences with a copyright collective and drafted its own policy on the use of works by others. It took a class action lawsuit by Copibec for Laval University to suspend this policy and sign retroactive licences.
York University in Toronto reacted in a similar way. York argued before the Federal Court that its use of reproductions of works was fair under section 29 of the Copyright Act. In his decision, however, Justice Phelan wrote that “York's own Fair Dealing Guidelines are not fair in either their terms or their application”. If York's policies were applied in their entirety, for instance by copying this book from an anthology, to use Justice Phelan's example, no royalties would have to be paid. That is simply unacceptable.
Several ministries of education also terminated their reproduction licences. This shows that the concept is very flexible, and its scope needs to be clarified.
We feel that the fair dealings criteria set out in the CCH case of 2004 need to be fleshed out and clarified.
We have given it some thought and discussed this with other organizations and we are not calling for the straight up withdrawal of the exemption for educational institutions. However, this exemption has to be better regulated and the criterion of the effect of the dealing on the market should be fundamental in determining whether the dealing is fair.
We will get into the British and Australian models a little later, but generally they are quite inspiring, where fair dealing for the purpose of education, research or private study should be tied to assurances of fair compensation when licences are available through copyright collectives.
Under the proposed model, the fair dealing exemption would not apply to educational institutions when a work is accessible on the market through a licence issued by a copyright collective. It is a so-called system of “statutory licences”, which is very well described in the information sheet that the Australian Copyright Council submitted to your committee. In terms of size, the Australian market is similar to that of Canada.
What is more, such a change would ensure that Canada meets the three-fold criteria recognized in Article 9 of the Berne Convention on Literary and Artistic Works, that permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author.
To achieve that, section 29 of the Copyright Act needs to be amended to include a reference to Article 2Bis of the Berne Convention or have wording similar to that proposed by Access Copyright.
In closing, RAAV strongly supports the droit de suite that CARFAC just talked about in detail.
I will close this presentation by reiterating the importance of statutory licences and collective management.