A FEW MILESTONES
Author and illustrator Claude Robinson, addresses the question of Copyright and its importance for creators.
A project developed by RAAV in collaboration with SARTEC, UNEQ, COPIBEC and ACCESS Copyright.
A XACMEDIACONCEPT production.
© RAAV 2015
We frequently hear about Author’s Right or Copyright, but how to really understand what it is?
Here are some tips that can help you better understand it and explaining why Copyright is so important for the sustainability of artistic creation.
An artist is an "author of artistic works"
First, it must be noted that Copyright is an intellectual property right. A visual artist or creator in crafts or stage arts, as defined in the Copyright Act of Canada, is called an "author of artistic works." We are talking about "artistic works" to differentiate them from musical, dramatic or literary works.
Is Copyright a privilege?
Copyright is not a privilege granted to private individuals having the status of artists as if it were a kind of aristocracy. Artists are workers and all work deserves remuneration. Copyright is a private property right, similar to that which pertains to a building or land, except that this right applies to the result of a creative intellectual effort, like a sculpture, a painting, a theatre costume, a blown glass vase, a play, a novel, a symphony, a film etc ... Unless society becomes a regime where everything belongs to everyone, intellectual property remains, just like private property on a house or a car, a normal attribute attached to intellectual works.
An unloved but necessary system
Who has not reacted negatively to a prohibition to use a work on the Internet or elsewhere because it is protected by the © symbol or an expression like: "All rights reserved for all countries"? Often seen as impediments or unfair blockades, these warnings serve to advise a potential user to ask permission to use the work. Contrary to what some people believe, not everything in life is free. To produce an artistic work costs money to the artists who, whatever may be said, does not live with just the love of their art ; money is needed for brushes, paint, material, tools, etc.
In other words, if we want artistic creations, music, original literary works to still exist in the future, well, it is necessary for the creative artists to be able to live now. Some may not like Copyright, but it still remains the best way to remunerate the making of creative works of art.
A source of income to support the artists and their creative work
As owners of their works, artists may exploit different uses in order to generate income and to finance their future artistic production. This income is provided by the payment of Copyright royalties. These royalties stem from the permission granted by an artist to a user (museum, art center, publisher, producer, etc.). This permission is called a "license" and the granting of a license is done by signing a contract which confers certain rights to the user in return of a compensation which is usually, but not always, monetary.
The protection of Copyright applies to an "original" work
To be protected by Copyright, a work must be original, unique. The work should not be a copy of a work by another artist. It must attest to the skill and judgment of its author. It must therefore show an independent creative effort and be the personal expression of its author.
Note that in the case of engraving, photography or sculpture, there may be multiple originals of a single work. In this case the artist produces a limited series of prints, photographs or sculptures. So each copy is signed and numbered by its creator; each copy is then considered an original work.
The Author's Rights in His / Her Work
Copyright on a work entails the exclusive right to produce or reproduce the work or any substantial part of a work in any material or digital form. If the work is not published, the author may publish all or a significant part of it. Copyright also includes the exclusive right to present the work to the public by telecommunication (Internet, social networks, television, etc.). The work can also be made public in a museum or gallery exhibition. The artist holding the copyright may authorize the execution of the above various uses by another person or organization.
The most common way to exploit the Copyright on an artistic work is to reproduce it and sell these copies while retaining the original. Only the holder of the Copyright in a work may copy or reproduce his/her work or authorize someone else to do so. Artistic works can be reproduced in various ways and transposed on various material supports. For example, you can photograph a painting or an illustration and reproduce it on a poster, a garment or in a book that will be subsequently sold. One can also scan a work and save this virtual copy as a JPG, TIFF or PDF file. The digital copy can then be used in many ways: computer or cell phone screen, websites, social networks, etc.
This right is enshrined in Canada’s Copyright Act since June 1988. It allows an artist who has authorized a museum or an exhibition center to exhibit his works to request in return a monetary compensation for the time during which the works are not available for sale or other uses. If a work is exhibited in a private gallery for the purpose of selling or renting, the artist receives no royalties. CARFAC and RAAV publish annually a Minimum Fees Schedule establishing recommended monetary compensations for the public exhibition of works of art.
Communication Right deals with the presentation of a work publicly by means of telecommunication, whether on TV, in a movie or on a website.. For example, if you see a sculpture or an original vase created by a glass blower on TV or in a movie, the producer of the show or the movie had to ask the author for permission and pay for this use. The same principle applies for example for the costumes that the actors are wearing on a TV series or film, or the props they use as well as if a work is displayed in the home page of a museum’s website. The original creators must receive compensation for their works to be made public by telecommunication.
Artist’s Resale Right
This right does not exist yet in Canada although more than 70 countries worldwide have already integrated it into their Copyright laws. The resale right allows an artist to claim a percentage of the resale price of his works. This is therefore a right that applies in the secondary market for works of art, where a collector or an art dealer sells a work he has in his possession. It does not apply during a first transfer of ownership between the artist or gallery and a purchaser. RAAV and CARFAC have been working for several years to have the Artist Resale Right incorporated in the Copyright Act of Canada.
Moral Rights are defined in the Copyright Act and are linked to the reputation of an author. One moral right is to have the author’s name associated with the works of art he/she has created; another is the right to have the integrity of their works respected. There is a violation of the right to integrity of a work when it is, in a manner prejudicial to the honour or reputation of the author, distorted, mutilated or otherwise modified.
Moral rights establish also that only the author can authorize the use of his/her work to promote a cause or sell a good or a service. Doing so without the permission of the author is allowing the public to believe that the author supports this cause or benefits from the sale of these goods or services. The author's reputation is tainted and he or she may request a withdrawal of the advertisement, public apology and monetary compensation for the misconduct.
In Canada, Moral Rights are inalienable but one may renounce the right to exercise them in exchange for financial compensation. An artist cannot sell Moral Rights outright to anyone else. At death, the Moral Rights are passed onto his or her estate. Waiving the exercise of these rights allows another person to modify all or part of the work, and to associate the work with a cause, a produce or a service. In Canada the duration of Moral Rights is the same as that of Copyright lasting up until 50 years after the author’s death.
To manage their Copyright, creators can choose one of three options :
a) The creator can manage their rights themselves receiveing requests for licenses on their works and negotiating the conditions and price of the licenses. In this case, creators are dependent on their own negotiating capabilities and retain all the royalties they are able to negotiate from the users.
b) The creator as a member of a professional association can accept that his/her works are covered by a collective agreement between the professional association and potential user. In this case the creator does not have to manage the communications, the negotiations and the financial management since the professional association takes care of those tasks. The creator retains all royalties and pays a modest working dues to the association.
c) Thirdly, the creator may have his/her Copyright negotiated and managed on his/her behalf by an agent or a copyright management society. Agents and Copyright management societies set their own fee schedules for royalties they require on behalf of their clients or members. The agent or society will pay the collected royalties to the creator after retaining an administrative fee of up to 25% of the royalties collected.