Thank you, Mr. Chair.
I'm the Executive Director of the Regroupement des artistes en arts visuels du Québec, or the RAAV. I'm joined by Moridja Kitenge Banza, the President of the RAAV and a visual artist.
Our presentation will focus on three topics. These topics are the discriminatory nature of paragraph 3(1)(g) concerning exhibition rights; the abuses of fair dealing and of the exception for the purpose of education; and the action that must be taken regarding resale rights. I'll speak very briefly about resale rights, since this issue has already been thoroughly covered by my colleague from CARFAC.
Since the recognition of exhibition rights in the Copyright Act, in 1988, many visual artists have benefited from a significant increase in income. It has gradually become standard practice to pay the artists royalties to exhibit their works in contexts other than sales or rentals. The amounts paid are increasing each year, even though they're still insufficient. Unfortunately, the June 8, 1988, deadline indicated in the act ensures that all works produced before that date aren't covered by the exhibition right. In our view, this is absurd.
As a result, older artists and the heirs of deceased artists don't receive royalties. The deadline establishes what we call indirect discrimination on the ground of age. As you know, the works produced before June 8, 1988, are the works of older artists. The section doesn't say that artists of a certain age are excluded. However, in practice, older artists are the ones who face unfair discrimination. The discrimination is unintentional.
In a way, there's also a second type of discrimination based on the category of works, since the restriction doesn't apply to other categories of works. In our view, this limitation based on the date of creation may violate section 15 of the Canadian Charter of Rights and Freedoms.
As I just said, this limitation isn't intentionally or directly discriminatory on the ground of age. However, in our view, it constitutes indirect discrimination. The provision, which appears to be neutral, has a disproportionate adverse effect on a specific group of visual artists as a result of their age, a ground of discrimination prohibited under the law. Over time, the date has become increasingly arbitrary and has further isolated older artists.
We understand that, at the time, the application of the right for works created before the date minimized the financial impact on museums and galleries. However, 30 years later, this argument is no longer valid. It must become standard practice to pay exhibition royalties, regardless of the date of creation of the works and, indirectly, the age of the artists who created them.
Here are some facts. Visual artists are fairly old in comparison with the general public. We conducted a brief study of our members. We established that the average age of our members is 59, and that over one third of them were born before 1965 and likely created works before June 1988. As a result, a significant percentage of visual artists are deprived of royalties for their older works, whereas younger artists who created their works before this date can claim exhibition royalties.
Older artists can still try to negotiate exhibition royalties for their works. However, more often than not, they won't be successful, given the lack of a legal basis. It should be noted that some promoters pay the royalties voluntarily.
You can easily imagine the inherently unfair situation where, in the same exhibition, some artists would receive exhibition royalties and others wouldn't receive them. In reality, only the older artists would be part of the unpaid group. It's nonsense and simply unacceptable.
Recently, Karl Beveridge a well-known artist based in Toronto, told me that one of his exhibitions, Photography in Canada: 1960-2000, was displayed in various museums. Some museums paid him exhibition royalties and others did not, since his works were created before 1988. It's nonsense.
The second topic is the issue of fair dealing. The Copyright Act, as written before 2012, already gave access to all artistic, literary and musical works in schools and universities, often through collective licences established with collective societies representing artistic creators.
Educational organizations and institutions were therefore already able to provide simple and affordable access to copyrighted works. The concept is very vague, but its scope is extremely broad. The exception for education under section 29 of the Copyright Act has led to serious consequences since 2012. Various users have applied a very liberal interpretation of the exception to avoid paying copyright royalties.
In short, this exception has had two main effects. First, certain users haven't renewed their licences with collectives societies. In addition, the payment of royalties under the agreements has dropped significantly, since the balance of power is now altered and strongly favours users.
A number of educational institutions responded quite radically to the exception by quickly implementing their own guidelines on fair dealing following the adoption of the 2012 amendments.
For example, Université Laval has not renewed its collective licences with collective societies and has drafted its own policy on the use of the works of others. The university defined the concept of fair dealing by allowing up to 10% of a protected work to be reproduced without the need to seek permission from the owner. This has altered the balance of power and upset the balance between other educational institutions and copyright collective societies, which have been forced to negotiate lower copyright royalties.
As you know, it wasn't until Copibec filed a class action that Université Laval agreed to suspend its policy and sign a licence retroactive to the date of the class action's institution. In our view, this situation and the various cases involving Access Copyright and different users such as York University and the departments of education in several Canadian provinces clearly show the need to review and better frame the concept of fair dealing, particularly in an educational context.
Here are some facts. During the previous review of the act in 2012, some people, including the representative of the Council of Ministers of Education of Canada, stated that adding the education component to the exception would not affect the income of copyright holders. On the contrary, what we feared has come true. The copyright royalties received by creators are plummeting and the commercial uses adopted by users are worrying, to say the least.
As mentioned earlier, this exception for educational use has been a source of legal dispute between collective societies on one side and governments and universities on the other side. For example, in 2016, the Federal Court heard the case involving Access Copyright and York University. The university had filed a counterclaim seeking a declaration stating that its use of reproductions of works was fair under section 29 of the act.
However, according to the Federal Court decision written by Justice Phelan, York University's own guidelines on fair dealing were unfair, whether it—