The thing did not turn the life of the “general public” upside down, but since the 1er last January, the copyright law is no longer quite the same. General protection for original works of a literary, dramatic, musical or artistic nature has been increased from 50 to 70 years after the death of the creator.
This means that works that were about to enter the public domain will do so in 20 years. However, those who had just entered it will not be able to benefit from this extension.
This is excellent news for the heirs or assigns of creators. This extended period of protection of works joins that of many other countries which had already adopted the principle of “life plus 70 years”.
We are therefore settling a problem of disparity between countries. An example of this? The pieces of Albert Camus, who died in 1960, were in the public domain with us, but were not elsewhere, notably in France. By adopting the 70-year rule, we standardize this type of situation.
What does it change concretely for rights holders who manage the works of visual, musical or literary artists? In essence, the works to which they have the rights cannot be exploited or altered for seven decades without special permission.
Lawyer François Le Moine specializes in art and intellectual property law. He agreed to enlighten me. “A work that is in the public domain belongs to everyone. When an orchestra performs a Mozart concerto, there is no royalty to pay. It can be twisted and changed, because there are no moral rights. With this change, works will be protected longer. »
This change to the law will have particular repercussions on the work of contemporary artists who use existing works to create. They will have to be vigilant. We are indeed living in a time when many creators are exploiting fragments of works made by other artists, such as sampling (sampling) in songs.
There copyright law says that a “substantial part” of a work cannot be reproduced without permission. “Several artists believe that an extract of two or three seconds from a musical piece is not a substantial part, explains François Le Moine. There are few decisions in Canada that define how far you can go in reproducing a small part. »
This vagueness also appears in terms of the new use of a work in a cause involving the American artist Andy Warhol. In 1984, the Pope of pop art had colored in the manner of his works of Marilyn Monroe or Mao a photograph of the singer Prince taken by Lynn Goldsmith.
The result, showing Prince with purple skin and black hair, against a bright orange background, was published in the magazine Vanity Fair and bore the mention of the photographer.
But what was the surprise of Mr.me Goldsmith to discover after the singer’s death, in 2016, a serigraph (part of a series of 16) based on his photograph (still in the magazine Vanity Fair), but without her name appearing and without her receiving any royalties. The photographer’s work had been entirely erased by the changes made by Warhol.
The case was recently heard by justices of the United States Supreme Court. Their (long-awaited) decision should clarify intellectual property rights in terms of so-called “transformative” works.
There copyright law encompasses two aspects: economic rights, which make it possible to monetize the use or distribution of a work, and moral rights, which protect the personality of the creator. In other words, if you are the owner of a work by Kittie Bruneau or Corno, you do not have the right to alter or mutilate it and to exhibit it in a public place (museum, gallery) .
“The artist could say that this exhibition goes against his reputation,” continues François Le Moine. He could oppose this, even if the work no longer belongs to him. »
The law also regulates the exploitation and reproduction of works and allows an artist not to see his work associated without authorization with a cause or a product. A recent case is that of the Fondation Vuitton, in Paris, which presents an exhibition by the American painter Joan Mitchell. The luxury house published photos of actress Léa Seydoux with a handbag of the brand in front of paintings by the artist to make advertisements broadcast on the web.
The Joan Mitchell Foundation, the painter’s beneficiary, has served Vuitton with formal notice and accuses it of “unauthorized and illegal reproduction and use”.
This overhaul of Canadian copyright law is a giant step. But the art world was hoping for much more, including a decision on the resale right, which would allow artists or their successors to earn a percentage on the resale of their works.
An author who publishes novels with satisfactory sales and who one day receives a prestigious award will undoubtedly see the sale of his books soar. He will of course receive the royalties linked to this success. But that is not possible for a visual artist in Canada. When his works are resold to a third party through a gallery or an auction, he receives absolutely nothing.
IMAGE FROM THE MONTREAL MUSEUM OF FINE ARTS WEBSITE, GRAPHIC ARTS COLLECTION
The Enchanted Owl, by Kenojuak Ashevak, originally sold for $24. In 2018, the work was resold for the sum of $185,500, but the artist received no royalties.
This principle is applied in nearly 90 countries, but it is slow to be adopted here. This request was however included in Prime Minister Justin Trudeau’s mandate letters given to Ministers Pablo Rodriguez (Canadian Heritage) and François-Philippe Champagne (Innovation, Science and Industry).
It would first be necessary to determine in which type of sale the resale rights would be applied (auction sales, private sales, gallery sales, etc.). But above all, establish the percentage that would be offered to artists during resale.
The front of Canadian artists (CARFAC), which has been campaigning for years to obtain the resale right, cites this very eloquent example in a document. Artist Kenojuak Ashevak initially sold his work The Enchanted Owl for the sum of $24. In 2018, the work was resold for the sum of $185,500. If the artist had received 5% of the transaction, she would have received $9,275.
So what are we waiting for to bring this revolution to fruition? The quality of life of our artists (especially older ones) depends on it.