Supreme Court takes another copyright case: Canadian Artists’ Representation v National Gallery of Canada

Last July the Supreme Court of Canada released five copyright decisions. In December of last year the Supreme Court heard the appeal in Robertson v Cinar copyright case. The decision of the Court in that case is due any time now. The Supreme Court obviously couldn’t be without any copyright cases. So, yesterday it granted leave in yet another case, Canadian Artists’ Representation/Front des artistes canadiens et al. v. National Gallery of Canada.

The case is an appeal from the decision of the Federal Court of Appeal in National Gallery of Canada v. Canadian Artists’ Representation  2013 FCA 64  In the case, the Canadian Artists and Producers Professional Relations Tribunal found that the National Gallery failed to bargain in good faith when it refused to negotiate minimum fees for right to use existing copyright works. In a two to one decision, the Federal Court of Appeal reversed the decision. One of the central questions in the case is whether the Copyright Act precludes artists’ associations from bargaining minimum fees in scale agreement  pursuant to Status of the Artist Act, for pre-existing works.

A summary of the case from the Office of the Registrar of the Supreme Court is set out below.

Labour relations – Collective bargaining, Administrative law, Judicial review, Copyright.

Labour relations – Collective bargaining – Duty to bargain in good faith – Administrative law – Judicial review – Copyright – Canadian Artists and Producers Professional Relations Tribunal finding that National Gallery failed to bargain in good faith when it reversed its bargaining position and refused to negotiate minimum fees for right to use existing works – Whether Copyright Act precludes artists’ associations from bargaining minimum fees in scale agreements, pursuant to Status of the Artist Act, for pre-existing works – Whether appellate court can set aside labour tribunal’s finding that party breached its duty to bargain in good faith solely on basis that tribunal misinterpreted legislative scope of collective bargaining – Status of the Artist Act, S.C. 1992, c. 33 – Copyright Act, R.S.C. 1985, c. C-42.

The Canadian Artists and Producers Professional Relations Tribunal certified the applicants as the representative organizations for visual artists in Canada. In 2003, the applicants 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 applicants. It later presented a revised draft scale agreement to the applicants in which all references to the minimum fees for the use of existing works had been removed.

The applicants 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 applicants 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.

 

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