Last month, the Supreme Court granted the appeal in Canadian Artists’ Representation v. National Gallery of Canada at the hearing and today, issued its reasons. The Court held that minimum fees for the provision of artists’ copyrights for existing works are eligible for inclusion in scale agreements under the Status of the Artist Act and were not contrary to the Copyright Act.
The decision is reported as Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42.The case is an appeal from the Federal Court of Appeal decision in 2013 FCA 64 which is in turn, an appeal from a decision of the Canadian Artists and Producers Professional Relations Tribunal.
From the decision:
 To conclude that the provision of existing works is excluded from scale agreements authorized by theSAA would result in that Act having a limited impact, at least with respect to visual artists, on the achievement of Parliament’s express recognition that artists should “be compensated for the use of their works, including the public lending of them” (SAA, s. 2(e)). Fees for the use of existing works are the central issue for visual artists seeking compensation for their work, not an ancillary matter. The NGC acknowledged that it rarely commissions works, doing so “perhaps once every five years”. Installation, lectures, and tours are ancillary services that are not only unlikely to provide a source of income sufficient to properly compensate artists for their work, but are services that can all be provided by persons other than the creator of the artistic work. Indeed, while they may qualify as “related matters” under the definition of “scale agreements” in s. 5, they may not often qualify as “artistic production[s]” in the sense of s. 6(2)(a) of the SAA, and would then not constitute a primary artistic service that can be included in scale agreements in their own right.
 For these reasons, the Tribunal’s conclusion that “provision of artists’ services” includes assigning or licensing a copyright was reasonable. As a result, minimum fees for the provision of artists’ copyrights for existing works are eligible for inclusion in scale agreements negotiated pursuant to the SAA.
On the potential for conflict between the Status of the Artist Act and the Copyright Act, the Court wrote:
 An artists’ association’s function is to bargain with producers for the fixing of what is analogous to a minimum wage for any artist who may agree to provide his or her artistic work to the producer. Establishing a minimum fee for the use of existing works does not affect any of the rights conferred on copyright holders under s. 3 of the Copyright Act. Minimum fees may, in some circumstances, affect whether and under what conditions artists will provide a producer with the right to use their artistic works, namely preventing an artist from doing so if no producer is willing to offer him or her the minimum amount under the applicable scale agreement. Ultimately, however, the decision of whether or not to provide the right to use an artistic work remains with the copyright holder.
The Court concluded that the Tribunal’s findings were not unreasonable and upheld the Tribunal’s decision.
More information on other intellectual property proceedings at the Supreme Court are available on my Supreme Court litigation page.