Visual Artists Granted Leave to Supreme Court
By Joel Secter
Getting to the Supreme Court of Canada is no easy feat, so we took notice of the Court’s recent announcement that they have granted Canada’s professional visual artists leave to appeal. The case stems from a complaint filed pursuant the Status of the Artist Act (the “Act”) by the Canadian Artists’ Representation/Le Front des artistes canadiens (CARFAC) and Le regroupement des artistes en arts visuels du Québec (RAAV) against the National Gallery of Canada (NGC). The complaint, allowed by the Canadian Artists and Producers Professional Relations Tribunal, found that the NGC failed to bargain in good faith when it reversed its bargaining position with CARFAC and RAAV (CARFAC/RAAV) and refused to bargain minimum fees for the right to use existing works. The Federal Court of Appeal, in a majority judgment, allowed the NGC’s application for judicial review and set aside the Tribunal’s decision.
By way of background, the Act recognizes the social and economic contributions of artists to Canadian society and stipulates, among other things, that artists be compensated for the use of their works, including the public lending of them. The Act also establishes the Tribunal and grants it jurisdiction to certify artists’ associations to negotiate scale agreements on behalf of the members they represent. A scale agreement is defined in s. 5 of the Act as follows:
“scale agreement” means an agreement in writing between a producer and an artists’ association respecting minimum terms and conditions for the provision of artists’ services and other related matters.
In essence, the Act creates the legal framework for collective bargaining between CARFAC/RAAV and the NGC.
CARFAC, as the certified representative for Canadian visual artists outside of Quebec, and RAAV, the certified representative for visual artists in Quebec, jointly entered bargaining with the NGC on a scale agreement in 2003. Meetings between the parties took place over four years and draft scale agreements dealt with minimum fees for the use of existing works during that period. The dispute arose in 2007 when, relying on a legal opinion from Gowlings, the NGC took the position that it was beyond the scope of the Act to negotiate minimum fees for the use of existing works as these were Copyright Act related issues. Considering that minimum fees were on the bargaining agenda from the outset, CARFAC/RAAV viewed the NGC’s position as a breach of the latter’s duty to bargain in good faith and filed a complaint pursuant to s. 32 of the Act.
In its February 16, 2012 decision, the Tribunal addressed three issues. One was based on the timeliness of the complaint and was resolved in CARFAC/RAAV’s favour. The other two were whether copyright matters are a proper subject for collective bargaining and inclusion in a scale agreement, and whether the NGC breached its duty to bargain in good faith.
Suffice it to say that the Tribunal agreed with CARFAC/RAAV on the other issues as well: first, the Tribunal interpreted “provision of services” to include an artist being able to grant the right to use an existing work, noting that many scale agreements negotiated under the Act address matters related to copyright. Secondly, the Tribunal found that the NGC ought to have known that its exclusion of minimum fees from the scale agreement would be unacceptable to CARFAC/RAAV, and that this, in the Tribunal’s view, amounted to a failure to bargain in good faith.
The NGC challenged the Tribunal’s conclusions in the Federal Court of Appeal, arguing that the Tribunal erred in finding that authorizing the use of existing works falls within the expression of “services” as that term is used in the definition of a scale agreement in the Act. In his dissenting reasons, Pelletier, J.A. wrote:
 There is nothing surprising in the finding that granting a license to use a work is a service provided by an artist to a producer. The fact that copyright is property does not preclude a finding that granting another the right to use that property is a service. One need only think of hotels and car rental agencies as examples of property owners who provide a service by allowing others to use their property. Thus, the granting of a license is a service provided by the artist, as contemplated by the definition of “scale agreement”.
Writing for the majority, Noel J.A. countered by stating that no linguistic gymnastics could justify the assertion that the assignment of copyright is a provision of artists’ services. He wrote:
 A copyright is not a “service” under any acceptation, be it at civil law, at common law, under the Copyright Act, or according to the plain meaning of the word be it in English or French. A copyright consists of rights recognized and protected by law owned by an artist in relation to his or her work (section 3 of the Copyright Act). The result is that the assignment of such rights gives rise to a transfer of property. No one would think of describing a transfer of property as a “provision of . services”.
The Supreme Court must now decide whether the Federal Court of Appeal can set aside the Tribunal’s finding that the NGC breached its duty to bargain in good faith on the basis of the definition of a “scale agreement”. While the decision will only be binding on the parties, the ruling will likely have implications for Canada’s other major art institutions as well.
 Canadian Artists’ Representation/Front des artistes canadiens, et al. v. National Gallery of Canada, 2013 CarswellNat 2950 (S.C.C.).
 Canadian Artists’ Representation (Re),  C.A.P.P.R.T.D. No. 053 <http://www.capprt-tcrpap.gc.ca/eic/site/capprt-tcrpap.nsf/eng/tn00626.html#id1>.
 National Gallery of Canada v. Canadian Artists’ Representation (2013 FCA 64) <http://decisions.fca-caf.gc.ca/en/2013/2013fca64/2013fca64.pdf>.
 The provisions establishing the Tribunal were subsequently repealed by S.C. 2012, c. 19, ss. 532 and 534. The Tribunal’s duties and responsibilities have now been transferred to the Canadian Industrial Relations Board.