National Gallery of Canada v. Canadian Artists’ Representation

National Gallery of Canada v. Canadian Artists’ Representation
Court (s) Database
Federal Court of Appeal Decisions
Date
2013-03-04
Neutral citation
2013 FCA 64
File numbers
A-84-12
Notes
Reported Decision
Decision Content
Date: 20130304
Docket: A-84-12
Citation: 2013 FCA 64
CORAM: NOËL J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
NATIONAL GALLERY OF CANADA
Applicant
and
CANADIAN ARTISTS' REPRESENTATION /
LE FRONT DES ARTISTES CANADIENS
and
REGROUPEMENT DES ARTISTES EN ARTS VISUELS DU QUÉBEC
Respondents
and
SOCIÉTÉ DU DROIT DE REPRODUCTION DES AUTEURS,
COMPOSITEURS ET ÉDITEURS DU CANADA
Intervener
Heard at Ottawa, Ontario, on September 5, 2012.
Judgment delivered at Ottawa, Ontario, on March 4, 2013.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: TRUDEL J.A.
DISSENTING REASONS BY: PELLETIER J.A.
Date: 20130304
Docket: A-84-12
Citation: 2013 FCA 64
CORAM: NOËL J.A.
PELLETIER J.A.
TRUDEL J.A.
BETWEEN:
NATIONAL GALLERY OF CANADA
Applicant
and
CANADIAN ARTISTS' REPRESENTATION /
LE FRONT DES ARTISTES CANADIENS
and
REGROUPEMENT DES ARTISTES EN ARTS VISUELS DU QUÉBEC
Respondents
and
SOCIÉTÉ DU DROIT DE REPRODUCTION DES AUTEURS,
COMPOSITEURS ET ÉDITEURS DU CANADA
Intervener
REASONS FOR JUDGMENT
PELLETIER J.A. (dissenting reasons)
[1] The Canadian Artists and Producers Professional Relations Tribunal (the Tribunal) found that the National Gallery of Canada (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 CARFAC/RAAV [see below] after having done so for many months. This decision, reported as Canadian Artists’ Representation (Re), [2012] C.A.P.P.R.T.D. No. 053, (the Tribunal Reasons) is the subject of this application for judicial review.
[2] The issue before the Court is whether the Tribunal’s conclusion that the National Gallery bargained in bad faith can be maintained. The National Gallery says that it cannot because the Tribunal erred in concluding that authorizing the use of existing works falls within the expression “provision of services” as that term is used in the definition of “scale agreement” in the Status of the Artist Act, S.C. 1992, c. 33 (the Act). The National Gallery also posits a conflict between the Copyright Act, R.S.C. 1985 c. C-42 and the Act, and takes the position that copyright matters must be dealt with using the mechanisms provided in the Copyright Act.
[3] For the reasons which follow, I am of the view that the definition of “services” is not determinative of this appeal. Whether the definition of “scale agreement” compelled it do so or not, the National Gallery agreed to negotiate minimum fees for the use of existing works and, indeed, carried on such negotiations for four years. The issue before the Tribunal was whether, in those circumstances, the National Gallery’s reversal of its bargaining position and its refusal to continue to bargain those items amounted to a failure to bargain in good faith. The Tribunal found it did. I agree. I would therefore dismiss the application for judicial review with costs.
RELEVANT STATUTORY PROVISIONS
[4] The balance of these reasons will be easier to follow if one has a grasp of the relevant portions of the Act. The Act begins with a recognition of the contributions of artists to Canadian society and a declaration of the rights of artists:
2. The Government of Canada hereby recognizes
(a) the importance of the contribution of artists to the cultural, social, economic and political enrichment of Canada;
(b) the importance to Canadian society of conferring on artists a status that reflects their primary role in developing and enhancing Canada’s artistic and cultural life, and in sustaining Canada’s quality of life;
(c) the role of the artist, in particular to express the diverse nature of the Canadian way of life and the individual and collective aspirations of Canadians;
(d) that artistic creativity is the engine for the growth and prosperity of dynamic cultural industries in Canada; and
(e) the importance to artists that they be compensated for the use of their works, including the public lending of them. [My emphasis.]
3. Canada’s policy on the professional status of the artist, as implemented by the Minister of Canadian Heritage, is based on the following rights:
(a) the right of artists and producers to freedom of association and expression;
(b) the right of associations representing artists to be recognized in law and to promote the professional and socio-economic interests of their members; and
(c) the right of artists to have access to advisory forums in which they may express their views on their status and on any other questions concerning them. [My emphasis.]
2. Le gouvernement du Canada reconnaît :
a) l’importance de la contribution des artistes à l’enrichissement culturel, social, économique et politique du Canada;
b) l’importance pour la société canadienne d’accorder aux artistes un statut qui reflète leur rôle de premier plan dans le développement et l’épanouissement de sa vie artistique et culturelle, ainsi que leur apport en ce qui touche la qualité de la vie;
c) le rôle des artistes, notamment d’exprimer l’existence collective des Canadiens et Canadiennes dans sa diversité ainsi que leurs aspirations individuelles et collectives;
d) la créativité artistique comme moteur du développement et de l’épanouissement d’industries culturelles dynamiques au Canada;
e) l’importance pour les artistes de recevoir une indemnisation pour l’utilisation, et notamment le prêt public, de leurs oeuvres. [Je souligne.]
3. La politique sur le statut professionnel des artistes au Canada, que met en oeuvre le ministre du Patrimoine canadien, se fonde sur les droits suivants :
a) le droit des artistes et des producteurs de s’exprimer et de s’associer librement;
b) le droit des associations représentant les artistes d’être reconnues sur le plan juridique et d’oeuvrer au bien-être professionnel et socio-économique de leurs membres;
c) le droit des artistes de bénéficier de mécanismes de consultation officiels et d’y exprimer leurs vues sur leur statut professionnel ainsi que sur toutes les autres questions les concernant. [Je souligne.]
[5] The Act establishes the Tribunal and grants it the jurisdiction to certify artists’ and producers’ associations whose roles is to negotiate a scale agreement on behalf of those it represents. A scale agreement is defined as:
“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;
« accord-cadre » Accord écrit conclu entre un producteur et une association d’artistes et comportant des dispositions relatives aux conditions minimales pour les prestations de services des artistes et à des questions connexes.
[6] Once a representative organization has given a producer notice to bargain, then:
32. Where a notice to begin bargaining has been issued under section 31,
(a) the artists’ association and the producer shall without delay, but in any case within twenty days after the notice was issued, unless they otherwise agree,
(i) meet, or send authorized representatives to meet, and begin to bargain in good faith, and
(ii) make every reasonable effort to enter into a scale agreement; and
32. Une fois l’avis de négociation donné, les règles suivantes s’appliquent :
a) sans retard et, en tout état de cause, dans les vingt jours qui suivent ou dans le délai dont ils sont convenus, l’association d’artistes et le producteur doivent se rencontrer et entamer des négociations de bonne foi, ou charger leurs représentants autorisés de le faire en leur nom, et faire tout effort raisonnable pour conclure un accord-cadre;
[7] The Tribunal has the authority to determine whether an artists representative organization has engaged in an unfair practice or has otherwise failed to comply with its obligations under the Act. In deciding those questions, and any other question which may come before it:
18. The Tribunal shall take into account
(a) in deciding any question under this Part, the applicable principles of labour law;
18. Le Tribunal tient compte, pour toute question liée :
a) à l’application de la présente partie, des principes applicables du droit du travail;
[8] Finally, the Tribunal’s decisions are protected from review:
21. (1) Subject to this Part, every determination or order of the Tribunal is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
.
(2) Except as permitted by subsection (1), no determination, order or proceeding made or carried on, or purporting to be made or carried on, by the Tribunal shall be questioned, reviewed, prohibited or restrained on any ground, including the ground that the Tribunal did not have jurisdiction or exceeded or lost its jurisdiction, or be made the subject of any proceeding in or any process of any court on any such ground, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise.
21. (1) Sous réserve des autres dispositions de la présente partie, les décisions et ordonnances du Tribunal sont définitives et ne sont susceptibles de contestation ou de révision par voie judiciaire que pour les motifs visés aux alinéas 18.1(4)a), b) ou e) de la Loi sur les Cours fédérales et dans le cadre de cette loi.
(2) Sauf dans les cas prévus au paragraphe (1), aucune mesure prise ou censée prise par le Tribunal dans le cadre de la présente partie ne peut, pour quelque motif, y compris pour excès de pouvoir ou incompétence, être contestée, révisée, empêchée ou limitée ou faire l’objet d’un recours judiciaire, notamment par voie d’injonction, de certiorari, de prohibition ou de quo warranto.
[9] In summary, the Act provides a framework, based on the labour relations model, for the conduct of negotiations between artists associations and producers with a view to providing, among other things, compensation for artists.
THE FACTS
[10] The Tribunal certified the Canadian Artists Representation/le Front des artistes canadiens (CARFAC) as the representative organization for Canadian visual artists outside Québec and Le Regroupement des artistes en art visuel du Québec (RAAV) as the representative organization for visual artists in Québec.
[11] Before proceeding, it is necessary to clarify an expression used in the balance of these reasons. The National Gallery uses the phrase “copyright-related issues” to refer to matters which can only be dealt with by the copyright holder (such as the granting of licences or assignments of copyright) or by someone authorized in writing by the copyright holder, as required by subsection 13(4) of the Copyright Act. For the sake of consistency, I will use the phrase “copyright-related issues” in the same way.
[12] In early 2003, CARFAC and RAAV (collectively, CARFAC/RAAV) each gave the National Gallery notice to bargain. Later in that year, CARFAC/RAAV advised the National Gallery that they would negotiate jointly.
[13] Given that the issue is whether the National Gallery failed to negotiate in good faith, I think it is important to set out, in some detail, the course of negotiations between the parties.
[14] The initial meeting between the parties was held on December 1, 2003. On January 5, 2004, Mr. Karl Beveridge, the spokesperson for CARFAC/RAAV’s bargaining committee wrote to his counterpart at the National Gallery, Mr. Daniel Amadei, setting out a list of items which CARFAC/RAAV wished to bargain:
1. Fees (this includes all fees as per the CARFAC fee schedule including exhibition, reproduction, web/virtual/digital, permanent collection, lectures, etc.)
2. All other payments (installation, meet the press, gallery talks, etc.)
3. Contracts (exhibition, commissions, web, performance, lecture, purchase (excluding sale price), etc.)
The letter went on to say:
You agreed to confirm in writing that these items are the items that we will be negotiating at the table. We additionally note that you have already agreed in principle to bargain the items listed above.
Application Record, vol. 15 p. 2836
[15] It should be noted at this point that the right to exhibit (applicable to works created after June 7, 1988) and to reproduce original works of art are protected by copyright: see Copyright Act, paragraphs 3(1)(a) and (g).
[16] Mr. Pierre Théberge, the Director of the National Gallery, responded to this letter. The relevant portions of his response were:
I confirm that Mr. Amadei has the authority to reach a tentative agreement with RAAV and CARFAC on the subjects that are under his authority. It is possible that some items to be discussed may require consultation with his colleagues or myself. Since we do not know the details of your intentions regarding some issues, we are uncertain if other NGC representatives will be involved. We are seeking legal advice, and wish to advise you that Mr. Amadei may be accompanied by a councillor.
I understand that Mr. Amadei stated at your first meeting that although we are ready to discuss all items listed in your letter, it may not be in the NGC’s authority to implement new programs or modify rules and procedure of existing structures.
Application Record, vol 15, p. 2839
[17] This carefully worded response (“… Mr. Amadei has the authority to reach a tentative agreement … on subjects that are under his authority …”) did not directly address the question raised by Mr. Beveridge. Notwithstanding Mr. Théberge’s evasiveness, the issue of minimum fees was on the bargaining agenda from the beginning of the talks between the parties until the events giving rise to this application.
[18] This is confirmed by the fact that, on February 3, 2005, Mr. Amadei proposed the following topics for discussion at the meeting scheduled for February 23 and 24, 2005:
1. Contracts (Exhibition, Installation, and Performance)
2. Reproduction fees
3. Permanent Collection
4. Exhibition Fees
5. Other fees
Application Record, vol. 15, p.2868
[19] The tenor of the negotiations can be seen in two draft scale agreements which are found in the Application Record, one dated June 1, 2006 (the 2006 Draft) (see Application Record, vol. 17, pp. 3234-3244), and the other dated October 20, 2007 (the 2007 Draft) (see Application Record, vol. 1, pp.114-123). A comparison of relevant terms in the two appears in the following table:
The 2006 Draft
8:02 The NGG/CMCP [the National Gallery of Canada/ the Canadian Museum of Contemporary Photography] shall enter into a contract with all artists for the purposes of the activity for which the artist is engaged. The contract shall follow the Contracts attached to this Agreement.
9:00 Minimum Fees
9:01Minimum fees for 2005-2006 as expressed herein shall apply immediately to (dates applicable for each year of agreement).
9:02 (list fee schedule here or as attachment)
9:03 Any artist engaged under this Agreement shall be free to negotiate remuneration above the minimum fees expressed herein.
12:00 Signing Powers
12:01 A Contract must be signed by the proper signing officers of the NGC/CMCP. After completing the contract, the NGC/CMCP shall sign all three copies of the Contract in ink, and then obtain the signature of the Artist or Artist’s authorized representative on the three copies. The Artist will retain one copy. The NGG/CMCP shall send one copy to CARFAC/RAAV (as outlined in clause 7:05) and one copy shall remain with the NGC.
29:00 Copyright
29:01 The artist or the legally recognized copyright holder retains copyright in the Artwork.
29:02 All rights not specifically granted to the NGC/CMCP are reserved to the artist or the legally recognized copyright holder.
30:00 Moral Rights
30:01 The Artist retains the Moral Rights in the Artwork.
31:00 Secondary Rights
31:01 The Artist or the legally recognized copyright holder retains secondary copyright in the Artwork.
The 2007 Draft
7:04 When the NGC/CMCP enters into a contract with an artist, NGC/CMCP shall use one of the Relevant Contracts under this Agreement.
8:00 Minimum Fees
8:01 Minimum fees for 2006-2007 as expressed herein shall apply immediately to (dates applicable for each year of agreement).
8:02 (list fee schedule here or as attachment)
8:03 (rates for additional services)
8:04 Any artist engaged under this Agreement shall be free to negotiate remuneration above the minimum fees expressed herein.
10:00 Signing Powers
10:01 When entering into a Relevant Contract, the NGC/CMCP shall sign all three copies of the Relevant Contract in ink, and then obtain the signature of the Artist or the Artist’s authorized representative on the three copies. The Artist shall be given one executed copy of the Relevant contract. The NGC/CMCP shall send one copy to CARFAC/RAAV (as outlined in clause 7:09) and one copy shall with the NGC.
25:00 Copyright
25:01 The artist or the legally recognized copyright holder retains copyright in the Artwork.
25:02 All rights not specifically granted to the NGC/CMCP are reserved to the artist or the legally recognized copyright holder.
26:00 Moral Rights
26:01 The Artist retains the Moral Rights in the Artwork.
27:00 Secondary Rights
27:01 The Artist or the legally recognized copyright holder retains secondary copyright in the Artwork
[20] In the Application Record, there are also a number of model contracts which were being negotiated in parallel with the scale agreement. According to articles 8:02 and 7:04 respectively of the 2006 and 2007 Draft scale agreements, the model contracts were to be used when an artist contracted with the National Gallery. An example of such a contract is the contract for Public Communication by Telecommunication which appears at vol. 1, pp. 138-146 of the Application Record. The following terms of that contract cast some light on the items being negotiated:
2. The Artist, author, first owner and the current owner of the copyright on the works covered by this contract and described in section 3, provides the user of said works with a nonexclusive and nontransferable license to use them solely as described in section 4.
4. Copyright
Reproduction rights for digital transfer
4.1 The Artist authorizes the National Gallery, in consideration of the payment of royalties stipulated in section 6.1 of this contract, to reproduce the works in a digital format for the sole purpose of communicating the work to the public by telecommunication, as described hereafter.
Right of communication to the public
4.2 The Artist grants the National Gallery, in consideration of the payment of royalties stipulated in section 6.2 of this contract, a license for the following public communication of the works (please check) …
5. Moral Rights
5.1 In addition to the caption information of the works following museum standards, the sign “©”, the name of the Artist and the year of creation of the works must be listed legibly and accompany the works that are communicated to the public. This information must appear immediately next to the works or in a section devoted to credits, it being acknowledged by the National Gallery that failure to list this information completely and legibly in conjunction with the works is prejudicial to the Artist and shall give rise to monetary compensation.
6. Remuneration and mode of payment
6.1 The Artist grants the license of reproduction for digital transfer in consideration of the amount of __________________$ for each work transferred, for a total of _______________$, plus any applicable taxes.
6.2 The Artist grants the license for public communication in consideration of the amount of __________________$ for each work communicated to the public, for a total of _________________$, plus any applicable taxes, for the following use(s).
6.3 The National Gallery will pay the Artist according to the following terms:
6.3.1 Date(s) of payment, installment(s): _____________
6.3.2 Conditions, if applicable (example, advance) ____________:
6.3.3 Verification of accounting records, frequency envisaged: ___________
6.3.4 Compound interest of 1% a month (12.66% a year) will be charged on any amount past due.
8. Ownership of the works
It is expressly agreed that this contract in no way transfers ownership of the works to the National Gallery or to anyone else.
12. Mediation and Arbitration
In case of litigation, the parties agree to use the mediation and arbitration processes prescribed in the CARFAC-RAAV/NGCL-CMCP Collective Agreement signed _______ 2007.
[21] A fair reading of these contractual provisions shows that the parties did negotiate the issue of minimum fees for the use of existing works. They also show that CARFAC/RAAV do not purport to deal with their members’ interests in copyright in any way. In fact, both the draft scale agreements and the model contracts stipulate that the artist’s rights remain the artist’s. In addition, CARFAC/RAAV do not receive any amounts from producers on behalf of their members by way of royalties or otherwise. Any licensing of copyright takes place only in the contract between the National Gallery and the artist.
[22] Whatever reservations the National Gallery may have had about the inclusion of minimum fees in a scale agreement, prior to October 2007 the negotiations consistently dealt with them.
[23] The Tribunal found that :
[123] The parties had an established practice for their bargaining meetings, of exchanging agenda, draft scale agreements and contracts prior to their meetings to allow each party the opportunity to review and make comments prior to their meetings.
…
[128] Witnesses testified that the negotiations involved drafting versions, discussing changes, incorporating those changes into a new draft, with a different colour, and then confirming those changes in the next round. Draft collective agreements dated June 6, 2006 (Exhibit 31) and October 20, 2007 (Exhibit 15) were submitted to the Tribunal, as well as draft contracts to be appended to the collective agreement (Exhibit 9) which all included language related to minimum fees, such as temporary exhibition fees and reproduction fees.
[24] Negotiations continued on this basis as long as Mr. Amadei was the National Gallery’s spokesperson.
[25] In May 2007, the National Gallery advised CARFAC/RAAV that Mr. Amadei had left the institution and that its spokesperson, going forward, would be Mr. Guy Dancosse. At the relevant time, Mr. Dancosse was a lawyer who practiced his profession from the Montreal office of Gowling Lafleur Henderson (Gowlings).
[26] In June 2007, Mr. Dancosse asked a lawyer in his firm to provide a legal opinion for the National Gallery. Referring to an earlier decision Tribunal decision amending CARFAC’s certification order (Canadian Artists Representation (Re), [2003] C.A.P.P.R.T.D. No. 8 (QL) (Decision No. 047)), Mr. Dancosse pointed out in his instructions to the lawyer:
Et le Tribunal semble faire la distinction importante disant que bien que ceci donne un droit à CARFAC de faire des demandes dans cette sphère élargie, ceci ne force en rien le producteur a accepter telle demande dans une entente à intervenir. En d’autres mots, chaque partie à une négociation demeure libre de demander, de refuser et de contre proposer ce qu’ils veulent et ce avec quoi ils ont prêts à vivre.
Par exemple, rien n’empêcherait le Musée de demander une clause disant que c’est l’auteur qui conserve ses droits d’auteurs et que ces derniers ne sont pas du tout couverts ou visés par une entente cadre avec CARFAC. Le client a reçu des opinions de trois avocats à ce sujet, qui ne semblent pas répondre clairement à sa question. Il nous demande de lui en fournir une qui serait plus claire.
Application Record, vol. 16, p. 3078
The Tribunal appears to draw an important distinction to the effect that while this allows CARFAC to make demands within this widened sphere, this in no way obliges the producer to include such demands in an eventual agreement. In other words, each party to the negotiations remains free to demand, to refuse, or to counter-offer as it wishes and according to what it can live with.
For example, nothing would prevent the Gallery from demanding a clause saying that the author retains copyright and that copyright is not in any way covered or within the scope of a scale agreement with CARFAC. The client has received opinions from three lawyers on this subject, which do not appear to answer its question clearly. It has asked us to provide an opinion which is clearer.
(Translation by the Court)
[27] As I read these instructions, Mr. Dancosse understood that the Tribunal’s position that the scope of negotiations is determined by the parties, as set out in Decision No. 47, meant that the National Gallery could take the position that minimum fee schedules for existing works were not negotiable. I observe that this position does not depend on the definition of “services”
[28] In July 2007, Gowlings provided the National Gallery with its opinion. Its conclusions may be summarized as follows. Firstly, a union which is not authorized to do so in writing cannot deal with copyright-related issues. This is because only the holder of copyright or a person authorized in writing by the holder can authorize others to do that which s. 3 of the Copyright Act reserves to the holder of the copyright.
[29] The author of the opinion relied on the decision of the Copyright Board in Public Performance of Sound Recordings case (Re), [1999] C.B.D. No. 3, to support her conclusion. In that case, the Copyright Board, in dealing with an application for a tariff, decided that a union could not rely upon its constitution or its bargaining mandate in order to exercise the rights of a collective society, that is, grant licenses on behalf of its members and collect royalties for distribution to its members. The opinion concluded from this that the National Gallery could refuse to negotiate copyright-related issues with CARFAC/RAAV if the latter did not have specific written authorization from their members, which CARFAC/RAAV admitted not having. This conclusion assumes that CARFAC/RAAV proposed to grant licenses with respect to works whose copyright was held by their members and that CARFAC/RAAV intended to collect royalties on behalf of their members. Neither of these assumptions were true at the time the opinion was prepared.
[30] The opinion’s second conclusion was that the Act confers on representative organizations the exclusive right to negotiate with respect to labour relations but not with respect to copyright-related issues. This conclusion was said to flow from the provisions of the Copyright Act dealing with collective societies and the absence of any reference to copyright in the sections of the Act which set out the Tribunal’s powers. The opinion went on to state that previous Tribunal decisions which found that representative organizations can negotiate copyright matters are not binding on the National Gallery since the Tribunal is not a court of law and its decisions do not bind the Courts.
[31] The opinion’s ultimate conclusion was that, on the basis of the reasoning set out above, the National Gallery could “legitimately refuse to discuss with CARFAC and RAVV [sic] with respect to copyright issues”: Application Record, vol. 16, p. 3087.
[32] Two observations can be made about this opinion. The first is that it was written as though negotiations between the National Gallery and CARFAC/RAAV had not yet begun. It did not recognize that, for the past four years, the parties had been engaged in negotiating a schedule of minimum fees and finalizing model contracts which would be used when individual artists negotiated with the National Gallery for the use of their works.
[33] The second is that the opinion did not recognize that the question of whether the National Gallery could refuse to negotiate minimum fee schedules for existing works going forward, after having negotiated those items for four years, was a labour relations question and not a question of the rights of the parties under the Copyright Act. This flows from paragraph 18(a) of the Act which directs the Tribunal to dispose of the questions coming before it by reference to the applicable principles of labour law.
[34] Returning to the sequence of events, the National Gallery provided the Gowlings’ opinion to CARFAC/RAAV in July 2007. On October 29-31, 2007, the parties met for the first time following CARFAC/RAAV’s receipt of the opinion. On October 29, the parties reviewed the last draft of the scale agreement. That draft included minimum fees for the use of existing works and model contracts. On October 30, 2007, the National Gallery invited Mr. Gilles Daigle (a Gowlings lawyer, but not the author of the Gowlings opinion) to present the Gowlings opinion. Mr. Daigle attended the meeting as a copyright specialist. His position was that he had no mandate to resolve the conflict between the parties, nor was he in a position to deviate from the position that the National Gallery was taking with respect to the negotiation of minimum fee schedules for existing works.
[35] Following the discussion with Mr. Daigle, the National Gallery presented a revised draft scale agreement to CARFAC/RAAV in which all references to the minimum fees for the use of existing works had been removed. The services contemplated by the National Gallery’s draft agreement were limited to exhibition planning and production, including consultation, installation, openings, lectures and talks, and commission for new works.
[36] The following day, Mr. Beveridge, on behalf of CARFAC/RAAV read a prepared statement indicating that the National Gallery’s proposal meant that the latter was not prepared to consider CARFAC/RAAV’s position on the inclusion of a minimum fee schedule in a scale agreement. Mr. Dancosse responded by reading the National Gallery’s own written statement which affirmed the National Gallery’s willingness to consider means by which fee schedules could be negotiated through the current bargaining process.
[37] Further communications between the parties ensued. On January 29, 2008, the National Gallery advised CARFAC/RAAV that “we can discuss binding exhibition rights fee schedules for temporary exhibitions only for artists you specifically represent in compliance with the Copyright Legislation.” The National Gallery added: “In the present state of our laws, your certificate to bargain collectively is limited to services and cannot automatically extend to Copyright matters. This position is based on legal opinions advising us so.” On my reading of the record, this is the first indication that the National Gallery was defending its position on the basis that the scope of negotiations was limited by the expression “provision of services” in the statutory definition of “scale agreement”.
[38] On April 22, 2008, CARFAC/RAAV filed their complaint that the National Gallery had failed to bargain in good faith.
THE DECISION UNDER REVIEW
[39] The Tribunal rendered its decision on February 16, 2012. It began by reviewing the terms of the CARFAC and RAAV certification orders. It then reviewed the facts, quoting extensively from the Agreed Statement of Facts filed by the parties. The Tribunal identified the three issues which it was to decide:
1. Whether the complaint was filed within the six-month period set out in subsection 53(2) of the Act?
2. Whether copyright matters are a proper subject for collective bargaining and inclusion in a scale agreement under the Act?
3. Whether the National Gallery breached its duty to bargain in good faith pursuant to section 32 of the Act?
[40] The Tribunal resolved the issue of timeliness in CARFAC/RAAV’s favour. That issue is not contested before us so nothing more need be said about it.
Whether copyright matters are a proper subject for collective bargaining and inclusion in a scale agreement under the Act?
[41] The Tribunal then addressed the issue of whether copyright matters were a proper subject for collective bargaining and inclusion in a scale agreement.
[42] This issue arises from the definition of “scale agreement” in the Act which is reproduced below for ease of reference:
“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;
« accord-cadre » Accord écrit conclu entre un producteur et une association d’artistes et comportant des dispositions relatives aux conditions minimales pour les prestations de services des artistes et à des questions connexes.
[43] The Tribunal began its analysis by quoting extensively from one of its earlier decisions, The Writers Union of Canada, 1998 C.A.P.P.R.T. No. 028 (Decision No. 028). In that matter, the Department of Canadian Heritage (DCH) and the Department of Public Works and Government Services Canada (PWGSC) argued that the certification order in the Writer’s Union’s favour did not give the latter the right to negotiate fees for the use of pre-existing works. DCH and PWGSC made the same argument as is being made in this case. They claimed that copyright is property, not a service. According to them, the bargaining regime established by the Act applies only to commissioned works; and, fees related to the use of existing works must be dealt with under the collective administration scheme provided in the Copyright Act.
[44] In Decision No. 028, the Tribunal rejected these arguments. It found that the Act complemented the regime provided in the Copyright Act by providing artists with an additional mechanism to obtain compensation for their works. The Tribunal put considerable emphasis on the Act’s stated objective of improving the socio-economic status of artists. Had Parliament intended to withdraw copyright from the scope of bargaining, it could have done so. The Tribunal noted that the Act contains no restriction on the scope of bargaining, which is consistent with the labour law principle that parties to a collective bargaining relationship can bargain any subject matter which they wish to bargain.
[45] In Decision No. 028, the Tribunal also dealt with the argument that copyright is property and not a service. It observed that copyright is a “bundle of rights”, including an interest in a particular type of property, the work itself. The Tribunal rejected the notion that copyright is merely a form of property - a “good”- because creators of artistic works have a fundamental socio-economic right whose exclusion from the scheme created by the Act would be contrary to the objects of the Act.
[46] The Tribunal continued its review of Decision No. 028 by noting that under the Copyright Act, artists had two options when dealing with copyright: they could manage it themselves or they could rely on collective societies. In order to take advantage of collective societies, artists have to assign them their rights. The collective society then manages the artist’s copyright in common with that of all its other members, usually, but not necessarily, through the tariff scheme administered by the Copyright Board. The collective society is responsible for collecting the applicable royalties and distributing them to the artists it represents.
[47] The Act provides artists with a third option: that of negotiating collectively with respect to the minimum terms and conditions upon which the artist will provide their services, and other related matters. In that context, the Tribunal considered that “the right to use an existing work is a service that the artist who holds the copyright in that work may provide to a producer, and representing artists in this fundamental socio-economic right is an appropriate activity for a certified artists’ association.”: paragraph 61 of Decision No. 028, cited above, as quoted in the Tribunal Reasons at paragraph 88. [My emphasis.]
[48] The Tribunal concluded its lengthy quotation from Decision No. 028 by pointing out that under the Act, artists retain control over the copyright in their work and contract directly with producers for the use of their works. Artists may negotiate for a higher fee than that bargained by their representative organization, but no producer may offer an artist conditions less favourable than those agreed to in the scale agreement. Artists receive payment directly from the producer and, in the event of a disagreement, they may enforce payment through the arbitration provisions of the scale agreement.
[49] The Tribunal went on to note that it had confirmed this position in, Decision No. 047, cited above.
[50] After reviewing the evidence, the Tribunal observed that artists associations have negotiated nearly 180 scale agreements since they have been certified. It noted that it has become a standard in the cultural sector that copyright matters are negotiated in scale agreements. According to the Tribunal, it is unusual for a scale agreement between an artists’ association and a producer not to contain stipulations relating to the use of artistic works. In the Tribunal’s view, it would be inconsistent with the purpose of the Act if scale agreements could not contain terms related to copyright.
[51] The Tribunal then referred to its reasons in Decisions No. 028 and No. 047 where it was pointed out that the fact that an artists’ association negotiates minimum fees for copyright licenses did not make the association the artist’s agent for the purpose of granting licenses or assignments of copyright for the artists’ works. Artists retained the right to license the use of their works unless they had assigned their rights to a collective society, in which case, the producer would deal with the collective society.
[52] The Tribunal concluded this portion of its analysis by stating that it is not up to the Tribunal to decide what parties to a bargaining relationship may bargain.
Whether the National Gallery breached its duty to bargain in good faith pursuant to section 32 of the Act?
[53] The Tribunal began its discussion of this issue by referring to the arbitral and judicial jurisprudence on the obligation to bargain in good faith. In particular, the Tribunal relied on certain comments of the Supreme Court of Canada in Royal Oak Mines Inc v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369 (Royal Oak Mines), at paragraph 45:
If a party proposes a clause in a collective agreement, or conversely, refuses even to discuss a basic or standard term, that is acceptable and included in other collective agreements in comparable industries throughout the country, it is appropriate for a labour board to find that the party is not making a "reasonable effort to enter into a collective agreement".
[54] This led the Tribunal to examine the course of negotiations between the parties. Based on its review, the Tribunal found that minimum fees schedules and model contracts were discussed and were included in draft scale agreements from the beginning of the negotiations. The Tribunal also found that, at the first meeting attended by the National Gallery’s new negotiating team following the departure of Mr. Amadei, the National Gallery tabled a proposed scale agreement from which all previous references to minimum fees had been removed. The Tribunal concluded that the content of the National Gallery’s proposal, the fact that it was presented without prior notice and without any reasonable alternatives represented an uncompromising position which the National Gallery should have known would be unacceptable to CARFAC/RAAV.
[55] The Tribunal also concluded that, notwithstanding the National Gallery’s insistence that the parties were not at an impasse, “the failure to negotiate or to discuss the inclusion of matters relating to copyright, including binding minimum fees in the scale agreement created a rigid