Thank you very much, Madam Chair.
My name is Scott Garvie, and I am the Senior Vice-President, Business and Legal Affairs, at Shaftesbury Films in Toronto. I am also the current Chair of the Board of Directors of the Canadian Media Producers Association. Thank you very much for inviting me today to speak to you about the importance of copyright to producers. It directly impacts our ability to make great Canadian shows. To fairly remunerate both producers and talent, we must continue to recognize the producer as the author and first owner of copyright in an audiovisual work. I'd like to talk about what producers do to help explain why that's important.
You may already be familiar with Shaftesbury's hit TV shows Murdoch Mysteries and Frankie Drake Mysteries on CBC. I'm proud to tell you that Murdoch Mysteries and Frankie Drake Mysteries are two of the top three highest-rated shows on CBC currently. Some of our other projects include the YouTube series and movie Carmilla, which enjoys a cult-like popularity with the LGBTQ community; the thriller series Slasher on Netflix; and Emerald Code, an empowering web series for girls about science and technology. We are currently producing two new prime-time drama series, which will be released later this year, one with Rogers called Hudson and Rex and another with Corus called Departure.
The producer has many roles. How do we make great content? Frankly, there is a little bit of alchemy in every show we create. Sometimes a show that seems destined for success on its technical merits ends up missing the mark with the target audience while another show will achieve success beyond our original hopes. Murdoch Mysteries is a great example of this. Who would have thought that a period drama set in 1890s Toronto would find such a large global audience? Thanks to the superb storytelling, production values and casting decisions, it's a hit show watched in more than 110 countries, and we're happily going on to our 13th season on CBC.
To make great TV shows and films, we need to wear many hats. We often call ourselves treasure-hunters. We search for an idea, a concept or an original story from a writer. We develop those ideas into the content that you see by engaging and working with creative talent.
In the case of Murdoch Mysteries, we optioned a series of novels by little-known Toronto-based author Maureen Jennings. We then spent time developing it, and over the years, we've worked with many writers and directors. In fact, we've had three different sets of head writers or show runners over the 13 years, and have hired over 75 different directors to work on that show. Our in-house creative team played a major role in shaping the series. All this is done under the direction of our in-house team of producers, which includes myself, Christina Jennings—who was just awarded an Order of Canada for her work on Murdoch Mysteries—and Julie Lacey.
We're also risk-takers. We invest revenues from our past successes into the R and D that's necessary to create a slate of new shows. For example, we spent 10 years developing our new show Hudson and Rex because we believed strongly in the concept—it's a cop-and-dog show—and wanted to get it right. We invested around $300,000 in development money of our own funds, paying writers and others to get the show to the stage where we could finally get a broadcaster to commission it.
We are also HR managers. We are the key touchpoint for all creative and financial elements and partnerships that make a project successful. Whether we are debating creative notes with directors, negotiating with a writer's agent or convincing our lead actor—in the case of Rex, a dog—to come out of his trailer, we are the connection point for talent. In addition, we have our fingers on the pulse of the market.
In the case of Murdoch Mysteries, we have a deal with a U.K. broadcaster; a French broadcaster, France Télévisions; CBC; and a foreign sales agent in ITV. We are in constant dialogue with them about how we can best serve their specific audience bases and ensure that the show is as successful and long-running as possible throughout the world.
We are also accountants. The Canadian tax credit system is premised on the producer's ownership of copyright. We juggle a variety of budgets, tax credit calculations, cash flow and investments to get the show made. At the same time, we ensure that our talent and crew are fairly remunerated for their work. That includes being responsible for administering the waterfall of revenues that flow to investors and creative participants after the show is made.
We are sales people. We are always selling, whether it's selling our idea to a writer or a broadcaster or pitching our vision of a new TV series to the multiple partners that we need to come on board. Shaftesbury has a team of 35 people in Toronto and London who work hard to support our shows like Murdoch Mysteries and Frankie Drake Mysteries.
There are a couple of things that we're doing to spin off to keep on increasing the audience engagement for the show. We have a Murdoch Mysteries-inspired escape room at Casa Loma in Toronto. We've done a behind-the-scenes web series with CBC, featuring the actors in Murdoch Mysteries and Frankie Drake Mysteries talking about the episodes.
We also have a cross-country tour of the Frankie period costumes going across Canada so people can see and touch the clothing. We're currently developing a theatrical play that will run across Canada based on the Murdoch brand.
Producers are—and must be—the authors and first owners of an audiovisual work. However, during this process you've heard from the Directors Guild of Canada and the Writers Guild of Canada that the Copyright Act should be amended so the screenwriter and the director are jointly named as the author of an episode of a television show or a film. That change, in my view, is not only unnecessary but would severely damage a producer's ability to monetize, license and otherwise exploit an audiovisual work.
Any suggestion that such an amendment would not disrupt the business of making films is wrong; it would completely upend the work we need to do to make a show. Producers and the guilds long ago worked out these issues in our labour agreements, and there is no need to implement a workaround to those agreements now. Infusing the banking and orderly marketplace with a multiplicity of copyright owners who cannot be tracked or are unwilling to grant the necessary exploitation rights would be a disaster. The collaboration required to produce a television series makes it completely different from dealing with the sole author of a novel or the composer of a song.
Producers hire and work closely with all key creative roles. As I just described, we work with screenwriters to turn ideas into scripts; we hire directors to help turn scripts into projects; we hire performers, production designers, composers, musicians, editors and crews to help us shape the project and bring our collective vision to the screen. Everyone has an important role to play, and we deeply value their creative efforts, but it is the producer who brings all these individual creative elements together and takes a project from an idea or concept to the screen and then takes it into the marketplace.
When it comes to TV, rights ownership and exploitation are the foundation of our business models. We are constantly developing new IP by using company resources as that important seed money. In order to have a company of size and scale—one that is able to compete on the international market and get our shows seen—producers must own the copyright in these shows.
It is impossible to be a viable production company without having a robust development slate of potential new projects. Frankie Drake provides a very good example of this. We were approached by CBC to develop a companion show they could run after Murdoch. Thankfully, we had already been developing the concept of Frankie in-house, so we were able to pivot very quickly to react to that request by the marketplace.
Ownership of copyright by producers is the foundation for remuneration models for artists in creative industries. We invest in development; we bring creative and financial partners together; and we pay artists and creators fairly, both from the budget and from the back-end participation we allow them under our guild agreements.
When it comes to authorship or ownership of an audiovisual work, there is no need to make any changes to the Copyright Act. Producers are—and must continue to be—authors and first owners of the copyright in their TV projects.
Thank you for the opportunity to appear before you today. I'd be pleased to answer any questions you may have.
I am Lori Marchand. I am of the Syilx, or Okanagan Nation. I am here as a representative of the Indigenous Performing Arts Alliance. I am currently the Managing Director of the brand new indigenous theatre at the National Arts Centre, where I have been for the past nine months. Prior to that, I was the Executive Director of Western Canada Theatre, a small regional theatre in the traditional and unceded territory of Tk’emlúps te Secwepemc in the city known as Kamloops, B.C.
Working with four different artistic directors over the span of 19 seasons, WCT gained a national reputation for commissioning, developing, presenting and producing indigenous work in a collaborative and respectful way. Of particular interest to this committee may be two specific examples that have gone on to impact other processes, including those at other companies.
In 2000, WCT and the Secwepemc Cultural Education Society, SCES, co-commissioned Cree playwright Tomson Highway to write a play based on a historical document called “the Laurier Memorial”, a document presented to Sir Wilfrid Laurier in the city of Kamloops in August 1910. The document was presented jointly by the chiefs of the Secwepemc, Nlaka'pamux and Syilx Nations, collectively known as the Interior Salish and referenced in the document as the Shuswap, the Thompson and the Okanagan respectively.
The document was dictated to and translated by renowned ethnographer, James Alexander Teit, a Shetlander who married into the Nlaka'pamux Nation. The document articulates 100 years of the relationship between these indigenous nations and the arriving settlers, the traditional protocols for welcoming guests into our houses, and the disrespect offered in return, leading to the erosion of territory and traditional means of living, as well as trust in indigenous relations with the Crown.
As mentioned, the commission of the play was a joint effort between WCT and SCES in recognition of the fact that the play would be based on the history and stories of the Secwepemc. The play was written and developed through multiple workshops with a number of public readings in Tk’emlúps te Secwepemc, with opportunities for community members to participate in the development process.
The development of the play became part of a CURA project funded by SSHRC at Thompson Rivers University. A documentary called Tomson Highway Gets His Trout was one of the tangible means of disseminating the results. It aired subsequently on the Bravo network.
Ultimately the play, Ernestine Shuswap Gets Her Trout, premiered in January 2004 at the Sagebrush Theatre with representatives from all 17 Secwepemc Nations—and I understand that hasn't happened since—as well as representatives from the Nlaka'pamux and the Syilx Nations. Grand National Chief Phil Fontaine attended on behalf of the Assembly of First Nations.
The commissioning agreement contained two clauses relating to royalties that were anomalous: For every production, 3% of the playwright's royalties would be returned to the Secwepemc Cultural Education Society; and if in any given 12-month period the playwright earned more than $25,000 from royalties from the play from whatever medium, whether live performance, television, film and so on, then a small percentage—and I apologize that my memory fails me, but it was either 2% or 3%, which didn't ever come to pass, unfortunately—would be returned to the commissioning theatre, which was WCT.
The next project of interest is the commission and development of a play by Kevin Loring, a Nlaka'pamux playwright, currently the artistic director at the NAC indigenous theatre. WCT, in partnership with the Vancouver Playhouse, received a $95,000 grant from Arts Partners in Creative Development, a fund established in connection with the 2010 Olympics in Vancouver, to commission and develop Where the Blood Mixes. The grant enabled notable commissions for the playwright and two indigenous artists: a visual artist to inform design components and a musician to inform the soundscape.
It also enabled a production workshop of the play, a staged workshop with production elements that could tour to communities. In partnership with Tk’emlúps te Secwepemc, the production workshop rehearsed in the Chief Louis Centre, the former Kamloops residential school.
Elders were invited to open the rehearsal process with a welcoming ceremony, and time was allotted after the ceremony for the elders to interact with the cast, creators and WCT team members. The rehearsal process was open, so elders and community members could drop in at any time to watch. There were three public performances at WCT's Pavilion Theatre. There was a nominal ticket price to attend, $10 to $15, or admission was free to ensure broad access.
Post-show, the audience had the opportunity to respond and give feedback to Kevin directly. The production workshop toured to Trail, where the audience had the same opportunity. It then went to Lytton, Kevin's home community. The community held a feast and had, again, the same opportunity to respond to Kevin. It was a profound and impactful event for the community, seeing themselves onstage. Ultimately, at the end of the process, the play premiered in Vancouver on June 11, 2008, the day of the federal government's apology for residential schools.
I didn't note it here, but it also went on to win the Governor General's award for drama.
WCT's relationship with Tk’emlúps te Secwepemc has been through direct relational activities such as discussions and requests directly to the chief and council, outreach through the Shuswap Nation Tribal Council, service organizations, and the Nlaka'pamux and Syilx nations.
WCT, and in most instances, the artists directly, have sought permission to tell the stories. Acknowledgement of the permission has been as described above, through payment of a portion of the royalties and/or recognition on promotional material, such as posters, brochures, websites and/or printed versions of the texts.
Through the process of development and production, the consultation and outreach has ensured that the community members see themselves honoured and represented respectfully and authentically on stage. Through pricing structures and engagement, the work is accessible to the community.
In cases where the subject matter may be triggering, WCT has also ensured the presence of trauma counsellors, elders and the availability of safe spaces so that community members can participate in an emotionally supportive environment.
WCT is also a producer. It is a member of the Professional Association of Canadian Theatres, and as such, is a signatory to the corresponding professional agreements with Canadian Actors' Equity Association, Associated Designers of Canada and the Playwrights GuiId of Canada. All fees for all artists were governed by these agreements. The agreements set the baseline; financial support for cultural considerations were augmentation necessitated by WCT's internal core values and practices.
WCT is a regional theatre that produces a broad range of work for the southern interior of B.C. My position of leadership within the company helped to inform and establish these practices and, fundamentally, a relationship of trust with Tk’emlúps te Secwepemc and, more broadly, the nations of the interior Salish. Ultimately, it was the generosity of these nations and their community members in granting permissions to share their stories and resources that made the work and the relationship possible.
I hope other speakers are going into more detail about the challenges of artists, writers and researchers coming into a community, publishing the community's stories and then claiming the copyright. I offer the practices of WCT as what I hope is a counterpoint to that practice.
At the national level, there is a great deal of work to be done to enable the work of indigenous artists. Producing theatre requires infrastructure such as performance spaces and facilities in which to rehearse and build. These resources are not in the hands of the indigenous artists and companies. There are no indigenous companies that are signatories to the Canadian Theatre Agreement, in large part because the rehearsal and performance structures do not currently reflect or accommodate an indigenous way of working. Indigenous artists may choose not to join Canadian Actors' Equity Association because the body of their practice is cultural, for example, in powwow.
When doing work with a company required to work under the Canadian Theatre Agreement or its counterpart, the Independent Theatre Agreement, artists must pay fees to CAEA, equity fees that ultimately just mean a reduction in the level of pay to the artist.
In essence these requirements have resulted in exclusion of indigenous companies and artists, a situation that both PACT and Equity have committed to resolve.
Being a rather circular argument, the above situation leaves indigenous companies and artists under-resourced both financially and in terms of dedicated infrastructure.
It is a large and complex issue. On behalf on the Indigenous Performing Arts Alliance and its members, I thank you for taking on this examination.
I'll talk generally. There are some people who aren't governed by collective agreements. We do prime-time drama in Canada. We deal with ACTRA, WGC and the Directors Guild. There are projects that are done outside the protections that those guild arrangements provide, but we still have to come to an arrangement, and I assume that it's a market arrangement. Somebody's willing to provide those services, or get us involved in their content, based on the deal that we do. It's a purely contractual relationship.
The bulk of what we do is within the confines of very structured industrial relations, which deal with the base rates that you have to pay people. Everything's always in negotiation. There's a base rate in the Writers Guild agreement that says, “If you want a script, it's going to cost you x.” You may have a very hot writer who says, “I don't care. That's the base rate. I want two times that.” Then it's a market negotiation. If we can afford him or her, we'll do it. If not, we'll move down the line and find someone we can actually come to an arrangement with.
In those collective agreements that have been negotiated between the CMPA and the various parties, there are various types of buyouts you can do where you get paid up front from a budget. You get work even if the show doesn't get made; you still have a contract and a script fee, say. If it goes on, and you want to change the use that you negotiated, you may have to pay another fee to the particular party—say, the director. If you want to do a DVD buyout as opposed to just television, then there's a mechanism that says, “Here is the price that you have to pay to change that use.”
Most of the agreements also have some sort of formula that calculates when the producer has recouped the cost of production, and then there's a sharing of revenues, over and above. That's, again, a negotiation. There are some base rates, but then the marketplace takes place.
We did a show last year with David Shore, who I went to law school with, and who happened to create House. He now has a lot of leverage. We did a deal with him that was very, very expensive, but he was a very high-priced piece of manpower and he was able to get that amount.
There are protections in place with floors, and then the ceilings are all based on your negotiation ability, on how badly a person wants to work with us and how badly we want to work with them. I don't know if that's responsive.
I have to admit that I came with a pretty specific lens. In a broader context, I would just say that I agree with you. It is not just the copyright legislation that is at issue, but also ensuring that artists—and individual artists, for example—have the means to live, right? Artists right now, primarily theatre artists, are living below the poverty line. They are important voices in our nation, and we value their contribution.
I just want to reference something, too, that Mr. Garvie said, in terms of the changing landscape. It isn't just about DVDs and copies, of course. There are webcasts, a whole distribution net through the Internet and controls. I would be lying to say I have those answers. I think that those are the huge questions in front of us.
I would love to start thinking outside the box, and finding a way to share some of those resources, and the royalties—a way to compensate artists for their work so that they could ensure that their livelihood can continue. I say that, balancing it as a producer who understands that there is a need for infrastructure in order to produce the work, and that somehow needs to be financially sustainable as well.
I'm sorry, I think I'm just helping paint more questions than answers.
There are many challenges.
There are so many that I'm not sure where to start. Again, thinking within the context of the committee's work, there are cultural constraints. There are the historical implications of colonization on individuals' lives and realities and I will say that is the primary barrier to success.
As I said in my statement, the historical infrastructure just does not reside in the hands of indigenous companies or artists or producers. Companies in theatre, like the Shaw and Stratford festivals, were producing English and American work and American authors well into the seventies, so the new voices—Canadian and indigenous voices—are really just starting to find their footing now.
The Truth and Reconciliation Commission has impacted our industry as well. I would love to think that maybe the artists were a little bit ahead of that. I come from British Columbia, where on the arts council applications, the companies have to respond to the question, “If you are interacting with the indigenous community, what are the protocols you, as the producer, have in place to engage in this work?”
I would say that there have been efforts at the council level, both federally and in some provinces, to ameliorate that situation and to start to fund the new voices. In the recent round, I can highlight companies, such as Urban Ink, which is the company that co-produced Children of God. Some of you may have seen that, either here at the National Arts Centre or in your community. It's a musical based on the experience of residential schools.
Urban Ink was recognized for the experience that they brought to that production, but as I said, really the largest barriers are cultural.
Thank you for your flexibility, Madam Chair.
I'm going to speak in French, with braces to boot. Fortunately, we have good interpreters.
Good afternoon and welcome.
Ms. Marchand, let me start with a few words of congratulations on your appointment to the National Arts Centre, where you promote indigenous culture.
Mr. Garvie, you are the producer of a very successful series. I saw on the site that there were two episodes. You are about to start your 13th season. I really enjoyed seeing your passion when answering Mr. Nantel's questions. You are proud to be a Canadian, to produce Canadian content and to tell Canadian stories.
In my case, of course, I am proud to be a Quebecker. We know that our TV series and artists play a very important role in our identity. This also includes the remuneration of our Canadian and Quebec artists. Unfortunately, the Liberals seem to be turning a deaf ear. They're trying to buy time while the fox is in the henhouse.
Mr. Garvie, you mentioned disruptions. We are seeing some major transformations, and all the Liberals have to say is that they will study this issue after the next election. We feel no concrete willingness to protect our creators of Canadian cultural content. I would like to know what you think about that.
We want to amend the Copyright Act. I think you and the various speakers have clearly explained your point of view. As the saying goes:
“If it ain't broke, don't fix it.”
We still have a useful model, even if it needs to be improved. You have clearly demonstrated that producers play an important role and that we must be careful not to disrupt this ecosystem. It seems that the pie is getting smaller. You said that American companies were sort of complicating things.
As the Standing Committee on Canadian Heritage, we must make recommendations to protect the remuneration of artists. This means protecting Quebec's and Canada's cultural industry.
I would like to give you an opportunity to comment on this, if you have any comments or thoughts on it.
Good afternoon, everyone. I am Julien Castanié. I am an illustrator and, as you said, I am the President of Illustration Québec. First of all, I would like to thank this committee for the opportunity it gives our association to express its views on such an important topic as copyright.
Illustration Québec is an association of artists founded in 1983—which happens to be the year when I was born. It represents about 300 members. Its mission is to bring together illustrators, represent them and defend their interests, but also to champion and promote the practice of illustration.
I would like to highlight the unique aspect of illustration, which is a social and accessible art. Illustration is used in all areas of our lives to communicate graphic messages and support ideas. It is an omnipresent art created by an artist who lends his or her work to a given context. Illustrations can be found on cereal boxes, in children's books, or even on the poster of a theatre that has decided to use illustration to communicate.
I would now like to talk about the economic reality of our business.
Illustrators are self-employed and their status is precarious. They do not benefit from the labour standards reserved for wage earners. Nor do they benefit from unemployment in the event of a reduction or cessation of activity during a given period.
Unfortunately, as with many artistic disciplines, our profession remains very challenging. According to our latest survey report from 2018, conducted among Quebec illustration professionals, the situation is truly alarming: 45% of illustrators, almost half, earn a net income of less than $15,000 annually from their artistic creation. They must therefore turn to other jobs to earn a livable income.
That is why I stress how vital copyright is for us as artists. Every exception, every new distribution platform that does not generate remuneration for authors amputates creators' income.
I would now like to talk briefly about remuneration models for illustrators in the context of copyright. There are five of them.
The first is the sale of licences for the use of creations as part of the orders of clients. This may mean an editorial illustration in a magazine, the creation of a poster illustration or illustrations for a website.
The second model is the royalties on the selling price of an object that reproduces illustrations. We could talk about children's albums, meaning the distribution of illustrations through the object in itself, but we are also talking about operating authorizations, meaning the use of images distributed on a whole bunch of objects, for example coffee cups or pens. In the case of children's books, royalties paid by publishers represent a percentage of between 3% and 5% of the price of each book sold. To give you a better idea, if the book were an apple, the copyright for the illustrator would be like the seeds of the apple.
The third remuneration model is the Canada Council's Public Lending Right Program, which is actually remuneration for the availability of literary works that can be borrowed from libraries.
The fourth model is the royalties that come from copyright collectives, such as Copibec in Quebec.
The last model is exhibition rights, meaning the rights that are paid for the exhibition of original works.
I would like to take this opportunity to talk about a right that does not exist in Canada, but that exists in dozens of other countries. It's the resale right, which is designed to grant visual artists a portion of the income from the resale of a work after its initial sale. It is something that does not exist in Canada, but that we recommend.
So copyright is truly vital for illustrators. Here are our five recommendations for improving the working conditions of artists through this legislation.
The first is to extend the private copying levy to the new digital media and distribute them to artists. The legislation should adapt to new media. Artistic works are regularly shared on digital media, such as cellphones or tablets, and this use is not covered by the legislation. This is really a loss of income for artists, whose situation is already precarious.
The second proposal is to provide remuneration for the use of works on the web. To my knowledge, right now, there is no control over the distribution or reproduction of works on the Internet. Perhaps a system should be found to manage the use of works and the remuneration of artists. So who would be responsible for that task? I'm actually wondering: would it be the responsibility of the collectives, the access providers, the distributors? It's an open question. Without content, the medium actually no longer makes sense. In fact, those who make works available should be required to pay the royalties or, at the very least, to direct the royalties to the rightful owners of the works.
The third recommendation is to create a tax credit. Given the impoverishment of our crafts, we recommend that a copyright tax credit be included in federal legislation. It already exists in Quebec, for example. So having this support would be a fairly powerful lever to support creation.
The fourth recommendation is to look at what is being done abroad to support artists. Let me draw your attention to a creative support measure that exists in France. French copyright collectives, such as the Société des auteurs des arts visuels et de l'image fixe (SAIF) or the Société française des intérêts des auteurs de l'écrit (SOFIA), which are the equivalent of Copibec in Quebec or the Public Lending Right Program in Canada, support artists through grants for the creation and dissemination of works, but also through grants for artist training or the development of artistic and cultural education. Their activities are funded by one quarter of the amount received for private copying, in accordance with the French Intellectual Property Code. We could imagine such a mechanism to support Canadian creations.
The last proposal—
Good afternoon, everyone.
Thank you for having us, Madam Chair.
The Canadian Art Museum Directors Organization represents more than 85 art museum directors who lead a diversity of visual arts institutions across Canada, from sea to sea to sea. It is a lean organization, with a volunteer board and one employee, our executive director, Moira McCaffrey, who is with me today.
Our mission statement asserts that “CAMDO-ODMAC strengthens the ability of Canadian art museum and public art gallery directors to champion art and its significance in society”. It is in this spirit that we address the committee today.
Artists are the foundation of the visual arts ecosystem. Without their creative work, we would have nothing to present to the public. Other organizations, such as Canadian Artists' Representation, have documented the unsatisfactory economic conditions under which many Canadian artists work. It benefits diverse Canadian publics and all those working to bring visual art to them if artists can work in conditions of economic security.
CAMDO-ODMAC was a key initiator of the visual arts summit in 2007. It sought to bring the visual arts sector together to advocate for common interests. Our membership in the Visual Arts Alliance reflects that commitment. We support the alliance's call for a solution that embeds copyright reform within a “holistic set of measures...brought to bear...to...address the ongoing systemic socio-economic precarity of this country's independent and professional artists.”
We are encouraged that this committee is working in tandem with the Standing Committee on Industry, Science and Technology, and is focused, not solely on the Copyright Act, but on the larger question of artists' remuneration.
Many in the visual arts sector struggle to secure the resources needed to provide cultural value to Canadian communities. Art museums must protect their financial and administrative sustainability in order to deliver on their core mandates. We may easily find ourselves in a defensive position, holding on to a small wedge of a pie that, depending on local circumstances, has often not kept pace with the growth of either visual arts production and presentation in Canada or the demonstrated desire of Canadians to experience visual art.
Visual artists rarely earn a living from their artistic practice. It is generally only through other employment, such as teaching, that they enjoy job security, benefits and pensions. Revenue Canada tends to treat them as independent business people. That model is seriously flawed. Artists produce objects and experiences of intangible cultural value for the public good, a value only imperfectly reflected in the price their works command on the open market.
Artists are professional collaborators with museums in presenting their art to various publics. They have a right to fair compensation for the value they provide, through the purchase of art for public collections, and through fees paid for temporary exhibitions, performances, residencies, workshops and presentations.
Our members are guided by a recommended fee schedule agreed upon between CAMDO-ODMAC, the Canadian Museums Association, Canadian Artists' Representation and the Regroupement des artistes en arts visuels du Québec.
However, compensation models that seem to work well for one group may have unforeseen and unintended consequences for another. For example, the recommendation to delete the phrase “created after June 7, 1988” from part I, 3(1) of the Copyright Act would, if implemented, have varying consequences for our members' institutions.
For some, the effects might be negligible. For museums that focus entirely on temporary exhibitions of contemporary art, distinguishing between works in an exhibition on the basis of the date of creation may seem arbitrary. Some may prefer to pay all artists on an equal basis, regardless of the date of creation of their works.
On the other hand, for museums with major historical collections, particularly of mid-20th century and modern art that remains under copyright protection, removing this distinction could have profound consequences, not only in the cost of exhibition fees themselves but also in the administrative burden of tracking down artists and estates to pay those fees. Such administrative costs can easily exceed the amount paid to artists themselves. Increasing such costs might prevent some museums from exhibiting works from their own collections and force others to reduce exhibition programming and invest more in administration, both of which defeat the purpose of getting money into the hands of artists.
Shifting financial burdens between artists and museums may be robbing Peter to pay Paul, when both Peter and Paul require appropriate support to provide that public good.
One copyright mechanism currently in effect in Canada may provide a model for effective deployment of public funds to improve the compensation of creators. Public lending right compensates authors, translators, illustrators, photographers and editors for public access to their work in Canadian libraries.
Under this system, libraries, beyond the purchase cost of a book, do not have to pay creators, nor to track them down to negotiate contracts for the use of their work. The PLR commission samples cataloguing data in selected libraries across Canada, and calculates payments to published creators registered with the program, based on the estimated circulation of their works. Canada was the 13th country to establish such a program in 1986, with an initial budget of $3 million. By 2017, there were 33 countries with comparable systems.
The virtues of the PLR system are: one, it does not impose a financial or heavy administrative burden on institutions within which Canadians access copyright material; two, it minimizes transactional costs by centralizing administration in one commission with which creators simply register, rather than them having to negotiate individual copyright licences; and three, it maximizes the extent to which program costs translate directly into payments to creators.
PLR is a relatively frictionless model. Its characteristics could well be emulated in the administration of other copyright licences. Recommendations for copyright reform need to be considered in the context of other legislation and policies, and the mechanisms used to realize them. Public institutions must have the resources to cover increased costs. Regimes to manage copyright must minimize paperwork and administrative burden, simplify processes, and maximize the delivery of resources to their intended beneficiaries.
We recommend that the Standing Committee on Canadian Heritage advise the House to take an integrated approach that balances institutional sustainability with economic security for artists, and that deploys copyright law, taxation policy and funding in a holistic manner; and that the committee consider public lending right as a possible model for management of some payments for uses of artists' copyright.
We echo Visual Arts Alliance's recommendations that the committee work with the Canada Revenue Agency to ensure that the Income Tax Act be interpreted in a way that is consistent with the realities of self-employed artists. It also recommends that the committee equip itself with the appropriate tools to measure and monitor the socioeconomic conditions of working artists.
Those tools should measure and monitor the operational conditions of Canadian museums, so that solutions are institutionally sustainable, and win the support of museum professionals in solidarity with Canadian artists. Further, the committee give artist's resale rights serious consideration, with attention to minimizing any administrative burden it may impose on institutions.
We are willing partners in any conversations or research towards the design of successful models for a renewed copyright regime. A successful reform, we believe, will be an integrated model deploying copyright law, taxation policy and funding, that is financially and administratively sustainable for all parties concerned.