Tag: Artist’s Resale Right

Copyright, Cultural Issues and Canada’s General Election, 2025

Image: Shutterstock (AI generated)

As we complete the first few days in what is the shortest election campaign in Canadian history, the minimum 37 days required by law, where do the copyright and cultural industries stand with respect to electoral platforms and public consciousness? Given the overwhelming focus on dealing with economic and even potential political disruption coming from south of the border, along with traditional bread and butter issues like the cost of living, especially food and housing, one could be tempted to say that cultural and copyright issues are largely invisible. Party platforms have not yet been released (and are probably still being worked on) and by the time they are made public, the election will be well underway. So while there still may be a couple of small references to copyright issues in party platforms (as occurred in the 2021 election, none of which led to any substantive legislation), they will simply be part of a laundry list of possible actions in many disparate areas. However, that has not stopped the cultural sector from outlining its policy proposals, which have been laid out articulately by the Coalition for the Diversity of Cultural Expressions (CDCE), an umbrella group that represents more than 350,000 creators and artists, and more than 3,000 cultural enterprises. Despite the fact that copyright issues are not at or even near the top of the agenda, there is a strong undercurrent of Canadian nationalism in this election that will inevitably have an influence on policies in the cultural sector.

In 2021 the governing Trudeau Liberals included a promise to “protect Canadian artists, creators and copyright holders by making changes to the Copyright Act including amending the Act to allow resale rights for artists”. They were re-elected but did nothing. The Conservatives for their part undertook “recognize and correct the adverse economic impact for creators and publishers from the uncompensated use of their works…”. They weren’t elected so the commitment was meaningless. This time proposed changes to copyright legislation are unlikely to move the needle for any party although the issue of the unauthorized use of copyrighted content to train AI still needs to be resolved, since AI will become a front-burner issue for any party elected. The CDCE’s paper addresses this issue, among others, in its 9 recommendations. Broken down into 4 buckets, the CDCE’s proposals address (1) International Trade and Cultural Sovereignty (2) Broadcasting and CBC/Radio Canada (3) Copyright and (4) Artificial Intelligence and Culture.

The CDCE proposal under “International Trade” is to insist that the cultural exemption clause be retained if the CUSMA/USMCA is renegotiated, and that cultural activities, goods and services be excluded from all future agreements. The cultural exemption clause, (Article 32.6 of the CUSMA) is based on a similar exemption in NAFTA and the original US-Canada bilateral trade agreement of 1989 but is more of a political fig-leaf than a real protection since if the provision is invoked, the US can retaliate with equivalent effect in any trade sector. However, it provided comfort to the cultural sector at a time when free trade with the US was seen to make Canada vulnerable culturally. Thirty plus years of bilateral, and now trilateral, trade proved that fear to be unfounded—until now—and the cultural exemption has never been used. During the period from 1989 to the present, even through the ups and downs of Trump 1.0, the fundamentals of the initial bilateral Free Trade Agreement, then NAFTA, and now the CUSMA/USMCA were basically respected by all parties. Under Trump 2.0 this has all been called into question. If the Trump Administration is going to disavow the basic elements of the CUSMA, having a cultural exemption clause becomes less than meaningless.

On April 2, the US will unveil its “reciprocal tariff” regime. It has arrogated to itself the right to include, in addition to tariffs imposed by other countries, self identified non-tariff measures in its calculations. Among these may be various cultural support measures imposed by Canada on foreign entities operating in Canada requiring them to make financial contributions to Canadian content. If that happens, the US will be violating yet again the provisions of the CUSMA/USMCA as it has already done with regard to the imposition of tariffs on some products on the specious grounds of fentanyl trafficking from Canada to the US, (less than 20kg in all of 2024). However, given the surge in Canadian nationalism as a result of the tariff threats but more particularly the verbal diarrhea coming daily from President Trump about Canada becoming the 51st state, it is unlikely that any Canadian government would throw Canada’s cultural identity under the bus for the sake of preserving tariff-free access to the US market for some commodities. Thus, seeing Canada sacrifice cultural support measures that may annoy some US businesses operating in Canada (like online streaming content providers) in return for a degree of tariff relief is an unlikely outcome in the present circumstances.

This surge of nationalism relates to the second of the CDCE’s “demands”, protecting the CBC and the Canadian broadcasting environment. Ever since Pierre Poilievre became leader of the opposition Conservative Party, one of the Party’s mantras has been “defund the CBC”. There is no question that the CBC business model is in need of reform, particularly its English language entertainment television service which captures a very small market share, but CBC radio, CBC news broadcasts and CBC’s French language service, Radio-Canada, remain highly relevant, as this CBC explainer attempts to show. Given the need to protect national identity in the face of the Trumpian onslaught, and the recent rediscovery that perhaps Canada is not so “broken” after all, if ever there was a need for this national institution, it is now.

The third basket of issues raised in the CDCE position paper relates to copyright concerns, which get very little traction among the general electorate but are important to the creative and cultural community. Once again, the CDCE reminds parties of the lack of an Artists Resale Right in Canada (noting previous promises to establish this measure), as well as some other longstanding issues like fair remuneration for writers and publishers for the use of their works in the education sector and extending the private copying regime to electronic devices. This would impose a small levy (about $3) paid by manufacturers and embedded in the cost of a smartphone to compensate for unregulated widespread copying of music on these devices, with the funds flowing back to music creators.

The final bucket deals with Artificial Intelligence (AI) and copyrighted content. At the present time there are some 40 lawsuits in the US pitting rightsholders against AI developers, and even a couple of cases in Canada. Canada has been slow off the mark in addressing this issue; at the moment there is no Text and Data Mining exception in Canadian copyright law and both rightsholders and AI developers are not clear on the ground rules. The CDCE is asking that a legislative framework be adopted that includes the key principles of (1) Authorization (by the rightsholder) (2) Remuneration (payment for use of copyrighted content) and (3) Transparency (the establishment of disclosure rules as to what training data is used in AI systems and ensuring that all AI-generated content is clearly identified). These are reasonable asks but there is no guarantee they will be respected.

In the US, AI developers are pushing the Trump Administration to give them a pass on respecting author’s copyright, notwithstanding the cases before the courts, using the argument that the US will lose the AI race to China if US developers cannot help themselves freely to the content of others. OpenAI (which is being sued by the New York Times) and Google argued in submissions to the US government that giving them unfettered access to data, including content owned by others, is essential for national security. Described by blogger David Newhoff as “tech bro bombast”, OpenAI’s attempt to wrap itself in the national security blanket is a cynical ploy to get around the inconvenient fact that it and other AI developers are hijacking the creative work of authors, artists, and musicians without permission or compensation while creating outputs that in a number of cases can compete with or even displace the original works that contributed to their training. A similar situation is developing in the UK where the creative community is pushing back against the original copyright carte blanche that the UK government seemed inclined to give to the tech community, in the name of AI competitiveness. Canadian governments are not beyond succumbing to the siren calls of the AI community and it is timely to establish some guiding principles, of which Authorization, Remuneration and Transparency are a good place to start.

However, while AI and copyright are not going to become election issues, national identity, which is closely intertwined with cultural sovereignty, surely is. Indirectly, copyright will be important as it is one of the foundation stones of cultural sovereignty, an issue that would have played second fiddle to economic issues like food inflation, carbon pricing, cost of housing, fuel and utility costs etc until Donald Trump started spouting his annexationist nonsense.

Frankly, had Trump really wanted to absorb Canada (eventually) he should have brought Canada inside the US economic tent and made the country even more reliant on the US market, by providing it with an exception to his attempts to take on the world trading system. Instead, he has woken Canadians from a restful, dependent slumber brought on by three decades of relatively uncontroversial free trade and economic integration and made them realize that they have no one to depend on but themselves. In doing so, he has revitalized a sense of nationalism that will play out in this election. Who can best defend Canadian interests has become the litmus test for Canadian voters, leading to a remarkable resurgence for the Liberal Party under new leader Mark Carney after the political corpse of Justin Trudeau was removed from the electoral scene. This may or may not change during the course of this short campaign. One thing is certain; while copyright issues per se will not get much profile, cultural identity issues will certainly be in the spotlight. This is a shift in emphasis that in the long run is likely to benefit the creative sector.

© Hugh Stephens, 2025. All Rights Reserved.

Government Announces an Artist’s Resale Right Will be Finally Coming to Canada!……Well, Maybe but Don’t Count On It.

Image: Author

Canada’s long-awaited 2024 Fall Economic Statement, reporting on the country’s finances for 2023-24 and outlining future spending and legislative priorities, was tabled in the House of Commons on December 16. Normally the big news would be that the budget deficit hit almost $62 billion, a 50% increase of almost $22 billion over the projected deficit announced in the last budget just over six months ago, but all that was upstaged by the announced resignation of Finance Minister Chrystia Freeland the morning of the day she was to deliver the Statement. This has led to a crisis within the Liberal caucus as to whether Prime Minister Justin Trudeau should himself resign. Buried in the 270 page document, which outlined some $23 billion in planned new spending just months after the April 2024 budget proposed over $50 billion in other spending initiatives, was a tiny little bone for the copyright community. On p. 140, we find this commitment:

“Protecting Artists’ and Creators’ Copyrights

Artists, particularly visual artists, are 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, offering an additional income stream.
In the 2024 Fall Economic Statement, 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.”

CARFAC, the non-profit that represents visual artists in Canada (along with its Quebec counterpart, RAAV,) was quick to publicize and celebrate the announcement. And so it should. It is important to get support for the Artist’s Resale Right (ARR) on the record, in the hope that this time the promise will actually be actioned. I have written about the ARR in the past, in 2021 and 2022, here (The Artists’ Resale Right: A Matter of Simple Fairness) and here (Will the “Artists’ Resale Right” Come to Canada and the US?). It is not a new idea to bring it to Canada. Artists have been campaigning for it for more than two decades. It exists in many countries (although not in the US) and has been around for more than a century, being first initiated in France in 1920. Today it exists in over 90 countries, including all members of the EU, Britain, Australia, Mexico and a number of African states. An important factor is that it is applied reciprocally, and is fully consistent with the Berne Copyright Convention.

The announcement on December 16 makes it appear that enactment of the ARR in Canada is tantalizingly close, but it is worth remembering that after the last general election in 2021, the mandate letter for the Minister for Innovation, Science and Industry, who holds lead legal responsibility for amending the Copyright Act, included the following instruction; “Work with the Minister of Canadian Heritage to amend the Copyright Act to further protect artists, creators and copyright holders, including to allow resale rights for artists.” That was three years ago and since then absolutely nothing has happened to implement this instruction. In fact, the only action to date has been the restatement this month of the government’s continued intention to do so. But time is fast running out for the Liberals– and consequently on any real prospect that the Copyright Act will be amended before the current Trudeau minority government falls, resulting in a general election. To say that the governing Liberal Party is not expected to win would be the understatement of the year.

Before speculating further on the prospects of the ARR actually coming to Canada any time soon, it is worth a quick refresher on what it is. CARFAC’s press statements describes the ARR as “a royalty that allows artists to share in the wealth they generate in the marketplace”. It is not known how exactly it would be implemented in Canada. While most Resale Right regimes are similar, they are not identical although the basic premise is that where sales of artistic works (works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs) take place beyond the initial sale, a small proportion of the re-sale price is remitted to the original artist or their estate, with post-mortem payments limited to a specified number of years. Often there is a sliding scale for payments, with the percentage going to the artist decreasing as value increases. Sometimes there is a ceiling beyond which a resale royalty is not levied. There can also be a ceiling on the amount paid. Private sales are usually excluded; the ARR applies only to works sold through galleries or auction houses. You can guess who might be opposed to it.

CARFAC’s proposal is for an ARR to be applied to secondary sales of $1000 or more that are conducted by a dealer or auction house, at a flat rate of 5%, with the liability to pay shared between the seller and the dealer, as is currently the case in the UK. It would apply only to Canadian artists and to artists of countries that offer an ARR (thus the reciprocity angle). Works of Canadian artists resold in other countries offering an ARR would be eligible for ARR payments from galleries or auction houses in those countries. Payment would be collected through a copyright collective, Copyright Visual Arts, owned jointly by CARFAC and RAAV. Notably, since the US does not have an ARR, works of US artists resold in Canada would not be eligible.

However, for all this to happen, the current Trudeau government will have to get its act together to introduce and pass the legislation, something that seems unlikely given the dilatory approach of the past three years plus the current existential crisis facing this government. The government has mused about copyright reform but has not walked the talk. Now it has almost run out of runway, and seems to be sleep-walking over a cliff. Public opinion polls put the party and the Prime Minister at all time lows, around 20% support, and a large number of the Liberal caucus has spoken up to urge Trudeau to resign. As a minority government, it must be supported in a confidence vote by at least one other party, and that support seems increasingly tenuous. In a best-case scenario for the Liberals, the government could last until October 2025 when there is a statutory requirement for a general election, but its demise is likely to come months before that.

Where is there room to introduce ARR amendments to the Copyright Act in the midst of all this uncertainty? Such amendments would have to be reviewed in Committee, given the guaranteed opposition of the art dealers. With the Trudeau government’s fate hanging by a string, not to mention the increasingly strident threats to impose punishing tariffs on Canadian exports to the US coming from the Truth Social account of Donald Trump, dealing with this bit of legislative housekeeping seems most unlikely.

That is not to say that amendments to the Copyright Act have not been introduced quickly in the past. The extension to Canada’s term of copyright protection required by the CUSMA/USMCA agreement was quietly and quickly enacted to meet the deadline of December 31, 2022 and back in the Stephen Harper era an amendment was quickly passed to extend copyright protection on sound recordings by twenty years from date of release. The big difference is that Harper held a strong majority in Parliament at the time, and the amendment was relatively noncontroversial. However, to think that the current limping government will expend much political capital to introduce an ARR in Canada at this time is most unlikely. As for the apparent “government-in-waiting” of Pierre Polievre’s Conservatives, as far as I know they have not pronounced on the issue. It is unlikely to be a priority, insofar as they claim to have so many other things to do from ending the so-called “carbon tax” (aka price on carbon) to defunding the CBC.

One element in favour of an ARR is its “reconciliation” and social justice impacts. It is supported by Indigenous artists and organizations representing them, such as the Inuit Tapiriit Kanatami and the Nunavut Arts and Crafts Association. Often cited is the case of the noted Inuit artist Kenojuak Ashevak, whose famous graphic work “Enchanted Owl” (the image on this blog) was initially sold by her for the princely sum of $24 in 1960. That’s all she got in her lifetime although the original work was sold and resold for many multiples of that both in her lifetime (she died in 2013) and after.

If Canada ever gets around to introducing an ARR, will the US follow? I suppose it is a possibility. Since Donald Trump seems to be making policy daily by tweet on Truth Social, I guess we will have to stay tuned. Maybe someone could float the idea with Elon? In the meantime, don’t hold your breath for the ARR to come to Canada within the life of the current Trudeau government, tantalizing as the recent announcement is. I wish it were otherwise. And I would love to be proven wrong.

© Hugh Stephens, 2024. All Rights Reserved.