(Un-credited
soapstone sculpture for sale by Canada House Gallery)
The recent federal government budget proposed an artist’s
resale right (“ARR”) in its 2024 Budget. The details are unknown, and there was
no mention of it in the budget implementation legislation Bill C-15 tabled on
November 4, 2025.
The good news about this proposal is that it is, so far, the
ONLY visible copyright arrow in this government’s current quiver. For the time
being, we have been spared any disastrous proposals to cut back on fair
dealing, to make Copyright Board tariffs mandatory, or other potentially
dangerous proposals – despite the best efforts of the usual lobbyists and
collective madness.
Here’s what Budget 2025 had to say:
Protecting Artists’ and
Creators’ Copyrights
Artists, particularly visual
artists, are great contributors to Canada’s cultural scene and among the lowest
income earners in Canada despite their significant cultural contributions. An
Artist’s Resale Right provides the creators of original visual artwork with a
royalty whenever their work is resold through an eligible sale, providing an
additional income stream.
In Budget 2025, the government
announces its intent to amend the Copyright Act to create an Artist’s Resale
Right in Canada, ensuring Canadian visual artists benefit from future sales of
their work.
…
Protecting Artists’ and
Creators’ Copyrights
Amendments to the Copyright
Act to establish an artist's resale right in Canada.
This measure is expected to
benefit visual artists in Canada, particularly Indigenous visual artists, who make up a higher
proportion of visual artists (4.1 per cent) relative to other artforms (3.1 per
cent). In 2015 visual
artists had a median income of $20,000 compared to $41,000 for cultural workers
and $43,500 for all workers.
(highlight added)
BTW, these numbers are potentially very misleading. Who and
what is an “artist”? Who and what is a “cultural worker”? Does this include
amateurs who cannot even give their stuff away at flea markets? We have similar
reliability problems for the “starving artist myth” as applied to writers and
musicians. There are no accreditation standards for these professions. In many
cases, the “starving artist” may be “starving” because, for whatever reason,
nobody wants to pay them. There is no guaranteed annual income for every
self-proclaimed artist, writer, musician, actor etc. in Canada – or anywhere
for that matter. As a former professional musician and as a writer in the eyes
of Access Copyright, I ought to know.
But does the ARR make any sense on its own? The answer would
seem to be clearly negative. As suggested by others over the years, it would
likely:
·
Be unconstitutional since it deals with resale
rights in tangible objects, such as paintings and sculptures. It has nothing to
do with production, reproduction, or performance which have been the essence of
“copyright” as we know it. This new scheme will arguably be about personal
property and civil rights, which is provincial jurisdiction in Canada. See this by Ariel Katz and Guy Rub
and this essay by Guy Rub. See also Michael Geist’s Podcast #253
featuring Guy Rub.
·
Benefit only older, successful, and/or mainly
dead artists (i.e. their estates)
·
Benefit unproductive collectives
·
Throw a potential lifeline to the Copyright Board,
the need for which (at least in its current bloated form) is becoming
increasingly questionable as it devolves more quickly and clearly into a rubber stamp with very rare
engagement on any “inaugural” or complicated new matters
·
Pander to unrealistic expectations of Indigenous
artists created by opportunistic lobbyists and politicians
·
Significantly impair the art auction and even
the routine commercial art gallery market in Canada
·
Drive art resale underground and/or to the USA,
where an ARR does not exist and is extremely unlikely in the foreseeable future
·
Potentially collide with and/or complicate the
already problematic regime under the Cultural Property Export and Import Act,
RSC 1985, c C-51,
·
Do nothing to solve the problem that darkens the
Canadian art market of fake and counterfeit Indigenous art. In fact, it may
worsen the problem by driving more sales underground or out of sight, for
example into flea markets and other countries.
Above all, any new “right” that unnecessarily adds friction,
intermediaries, and regulation is likely to be economically inefficient and
drain money from those that most deserve it. It will effectively be a
particularly inefficient “tax” on art – which will mostly if not totally
benefit meddlesome middlemen and collectives and lessen the returns to
galleries and, above all, artists themselves. Excessive copyright rights have
long been seen as a “tax”, e.g. by Lord Macauly in 1841.
In other words, it could be an unnecessary and unworkable
solution in search of a non-existent problem. It would, of course, benefit CARFAC, the organization that is aggressively endorsing
it and the collective it is touting to administer
it. There has been lobbying by Canadian Artists’ Representation / Le Front des artistes
canadiens, which receives substantial government
funding.
CARFAC us proposing that:
·
that it applies to secondary sales of
original artworks for the lifetime of the artist, and their estates
covered under the term of copyright;
·
that the rate paid to rightsholders is 5%;
·
that it applies to works sold in the
secondary market for at least $1,000;
·
that the art market agent and seller of the
artwork are jointly responsible for the payment of the royalty; and
·
that royalties be managed and paid through
the copyright management organization, CARCC, currently operating under the
business name of Copyright Visual Arts – Droits d’auteur Arts visuels.
If there is concern in the Indigenous community about
exploitation of working artists, there should be further consideration and
exploitation of the certification mark regime
that has long been in existence under the Canadian Trademarks Act. A certification
mark is like a “seal of approval” that
the goods and services covered meet a defined standard of quality and
authenticity. This would help to ensure that that the sculptures, paintings, or
whatever actually come from the identified community and are not factory
produced fakes from elsewhere.
The use of “official” marks under the Trademarks
Act may be possible where the test
to evaluate public authority status can be met, i.e.:
The two-part test is
made up of the following elements:
·
a significant degree of control must be
exercised by the appropriate government over the activities of the body; and
·
the activities of the body must benefit the
public.
Political Implications
The Liberals will either have a minority government or a
bare majority until the next election. The urgency of other issues, not least
of which is CUSMA which will likely implicate intellectual property and
copyright, may keep the ARR from urgently being top of mind for Mark Carney and
the new Heritage Minister, Marc Miller (who is an Anglophone from Quebec with
impressively promising credentials). Without a
majority, things can get stuck very easily in
Committee hearings. Whatever can be said about the Conservatives, if they somehow regain a majority or assert
themselves in committee, they have sometimes shown more wisdom than the
Liberals when it comes to copyright legislation and are less likely to pander
to the culture sirens from Quebec and the Toronto collectives.
HPK
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