unions and associations

videocan is trying to collect documentation from all performance makers in Canada. However, some artists are not free to donate their works to the collection.

What role do Unions and Associations play in regulating video documentation?

Unions and Associations create rules for how artists can use their documentation after a production is complete. These rules are articulated in the contracts that artists sign, and if the production is being produced by members of either a union or an association, the work becomes governed by the stipulations set out by those bodies.

The bodies most commonly interfaced with by performance makers in Canada are:

  • Canadian Actor’s Equity Association (CAEA)

  • Union des Artistes (UDA)

  • Canadian Association for Dance Artists—West (CADA/West)

  • Canadian Association for Dance Artists—East (CADA/East)

  • Associated Designers of Canada (ADC)

  • Canadian League of Composers (CLC)

  • Alliance of Canadian Cinema, Television and Radio Artists (ACTRA)

Each of these bodies has similar, yet distinct, rules concerning video documentation. Importantly for videocan’s purposes, none of these bodies have clauses that protect the educational use of video materials for artists.

What is the difference between a Union and an Association?

In Canada, Unions and Associations are not the same. Here’s what you need to know:

Unions negotiate and enforce collective agreements between artists and the companies they work for. Agreements can govern all of (a) working conditions; (b) documentation conditions; and (c) the use of recordings. Unions use contract law and solidarity to enforce their policies.

Associations suggest minimum rates and working conditions, but to our knowledge don’t actually exercise any enforcement power for their guidelines. Importantly, most of the above governing bodies are associations.

In addition to these two, there are Performing Rights Organizations. Also called Neighbouring Rights Organizations or Collecting Societies, they are exclusively focussed on collecting royalties, which they collect as tariffs paid by venues and distributors, and then pay out to artists according to complicated schemes that tend to favour the most popular. Performing rights organizations use copyright law to enforce their policies.

Lastly, we also have Advocacy Groups, like the Canadian Association for the Performing Arts (CAPACOA), that host conferences, keep databases, advertise and lobby for various arts-related interests.

Common Clauses For Archival Materials

The contracts of the Union des Artistes, the CAEA, and other bargaining groups show several different strategies for controlling the use and production of documentation. These strategies take the form of standard clauses which return in various configurations among different contracts. Archiving is permitted, generally with the following stipulations:

For general use:

  • Non-commercial.

  • The video has been marred in some capacity.

  • The video is unedited.

  • No sponsors endorsed (e.g. the archiving service must not run ads).

  • Technology is used to impede download. This is an interesting one because, on the internet, numerous methods exist for capturing or downloading anything that can be streamed. But here, implicitly, all a distributor needs to do is make downloading more difficult than simply clicking “download." Relatedly, some contracts stipulate a ‘closed circle’ of distribution—also quite subjective.

For public use:

  • Restricted to a specific length, such as five minutes.

  • Performers credited.

  • Limited to duration of production,’ often ‘plus two weeks,' to allow advertising and self-promotion.

  • Written agreement required from the artist or company. This may be “by permission but without payment” (in the wording of the Canadian League of Composers). It is worth contrasting this paradigm with the buyouts that are common for film actors, whose recorded products are explicitly recognized as commodities.

There are also standard clauses concerning the documentation process itself; for example, “no recording without 24 hours notice,” "no recording of the dress rehearsal," or "a maximum of one rehearsal can be recorded for documentation." These serve many purposes including the protection of performers' public images and personal brands.

The diversity of standard clauses regarding documentation reflects a diversity of potential purposes for recorded media. Archiving is generally recognized as beneficial for the artistic community, however its proximity to commercial and potentially exploitative practices makes the boundaries of acceptable archiving practices into a topic of case-by-case negotiation, albeit one in which certain concerns return in standard forms. 

A telling example comes from the CAEA’s CTA and ITA agreements, where we find the clause:

“Archives for Retaining a Permanent and Definitive Record of the Production, and Preserving the History of Canadian Theatre.

Such a recording must be captured from a regularly scheduled public performance of the production or of a workshop activity; no additional rehearsals are permitted to facilitate the recording. The resulting recorded material may not be edited and must be marred to indicate its use, e.g. the title “ARCHIVAL RECORDING; NOT FOR DISTRIBUTION” generated throughout. The Theatre guarantees that the recorded material, which may not be copied, will remain under its control for archival purposes and may only be viewed in private for reference purposes or as a teaching or rehearsal aid for the benefit of Artists or management, except as provided for in Clause 47:02(E). Under no circumstances shall a Theatre give an Artist a copy of an archival recording prior to rehearsal. There must be no public viewing of the recorded material” (our emphasis).

To put this clause into an international perspective, here’s an example from the CAEA’s Danish counterpart, the Danish Actors Association. In all of their agreements, it states: “If, at a later point in time, national archives for the storing of such recordings are established, the recordings, or possibly copies of these, must be transferred to such archives.”

The CAEA’s clauses strikes us as incredibly important if not incredibly consistent with the history of Canada itself: history in its preserved form is mandated to be hidden from public viewing.

A Need for More Clarity

The subtle distinctions between the different clauses and the consequences of breaking them has led some artists to be quite confused. Particularly in dialogue with theatre artists, we have consistently observed a lack of clarity in conversations, interviews, and public forums regarding these specific contractual stipulations. Even the jurisdiction between the different bodies remains a mystery to some. (For example, our understanding at the moment, based on speaking to artists working in French and English, is that all French theatre in Canada is UDA jurisdiction, all English theatre in Canada is CAEA jurisdiction, but at least in Maritimes, and based on some artists’ experiences as CAEA members working in French, that doesn’t seem to be clearly understood by producers (as well as CAEA).)

This lack of clarity, we believe, has led to a stagnant culture wherein artists would rather choose to not engage in sharing work at all, instead of pursuing further information on how to share video material. And the fear that drives artists in these organizations to abstain from sharing their work is because of the threat they feel it would have on their careers, not because of how the public would see it, but because of the repercussions that would come from the union or association. In some communities, like Montreal’s English theatre community, the prospect of being blacklisted by CAEA means to some completely being shut out of the professional theatre scene.