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Canada Artists groups free to take gallery fee dispute to Supreme Court

A long-running fight between organizations representing Canadian visual artists and the National Gallery of Canada over fees will have its final legal showdown before the Supreme Court of Canada.

This week, the court granted leave to appeal to Canadian Artists' Representation, better known as CARFAC, and its Quebec partner, Le Regroupement des artistes en arts visuels du Québec (RAAV), after a decision by the Federal Court of Appeal in March this year effectively preventing the two artist groups from negotiating minimum display and other copyright-related fees with the National Gallery.

Said the gallery in a statement Friday: "By granting CARFAC/RAAV's application, the Supreme Court considers that this case raises an issue of public importance that goes beyond the immediate interests of the parties to the case." Indeed, notes CARFAC executive director April Britski, "one of the arguments we've made is that this just doesn't affect visual artists but all artists, anybody who's settled an agreement under the [1992] Status of the Artist Act." For its part, the gallery said it wouldn't be offering additional comment until the court hears the matter.

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The Supreme Court decision is the latest instalment in a dispute that has gone on for close to 10 years. Talks on a scale agreement related to mandatory minimum payments and standards for living artists and artists' estates, including reproduction fees, seemed to proceed smoothly until 2007 when the gallery, a federal Crown corporation, shifted its bargaining position. It announced that CARFAC, created in 1968, and RAAV, established in 1989, couldn't legally negotiate a scale agreement because copyrighted work is private property and only the individual artist could sell related rights for whatever he or she could get.

The artists associations then took the issue to the now-defunct Canadian Artists and Producers Professional Relations Tribunal, charged with handling disputes arising from the Status of the Artist Act. In February, 2012, the tribunal ruled the gallery, by taking an "uncompromising position" in 2007, had breached "[its] duty to bargain in good faith," and ordered the gallery to resume talks that April. The gallery instead went to the Federal Court of Appeal, which, after hearing arguments that artists associations could recommend but not negotiate fees, ruled 2-1 in favour of overturning the tribunal's decision, saying the gallery had not adopted unfair labour practices.

A 2009 study by Toronto's York University reported that Canada has between 22,500 and 27,500 visual artists. The average age of a Canadian artist is 43 and in 2007, when the average annual Canadian gross income was $36,301, a typical artist's income, from all sources, was $25,318.

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