Wednesday, May 14, 2014

Status of the Artist Act v. Copyright Act – Now to the Supreme Court of Canada

The SCC is hearing a case this morning that involves questions of the role of the Copyright Board, the former Canadian Artists and Producers Professional Relations Tribunal (“CAPPRT”) and a number of other issues that could have potentially important consequences for many collectives other than CARFAC, the visual artists’ group bringing the case.

Here’s the SCC’s own summary:
The Canadian Artists and Producers Professional Relations Tribunal certified the appellants as the representative organizations for visual artists in Canada. In 2003, the appellants began negotiating with the National Gallery, and those negotiations covered the issue of minimum fees for the use of existing works. In 2007 the National Gallery was provided with a legal opinion whose ultimate conclusion was that it could legitimately refuse to discuss copyright issues with the appellants. It later presented a revised draft scale agreement to the appellants in which all references to the minimum fees for the use of existing works had been removed.
The appellants filed a complaint with the Tribunal, which found that the National Gallery failed to bargain in good faith when it reversed its bargaining position and refused to bargain minimum fees for the right to use existing works with the appellants after having done so for many months. The Federal Court of Appeal, in a majority judgment, allowed the National Gallery’s application for judicial review and set aside the Tribunal’s decision.

Why did CARFAC seek to bargain with the National Gallery more than 10 years ago under the Status of the Artist Act (“SAA”) under the aegis of the CAPPRT, rather than go the Copyright Board? Was the National Gallery entitled to change its mind about negotiations under the SAA four years or so after into the exercise?

Anyway, here’s a link to the proceeding and the video feed of the hearing by the Supreme Court, which will begin at 9:30 AM.


PS - NB - In a very rare move, the Court "retired" after the hearing and came back about 10 or 15 minutes later, whereupon the Chief Justice indicated that the appeal is allowed with reasons to follow.

PS At 2:13 PM, the Court issued a release indicating that:

The oral judgment will be available within 48 hours at / Le jugement oral sera disponible dans les 48 heures à:

(highlight added)

PS - this judgment could be very short and narrow.

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