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.