Now is the right time to become an American Federation of Musicians member. From ragtime to rap, from the early phonograph to today's digital recordings, the AFM has been there for its members. And now there are more benefits available to AFM members than ever before, including a multi-million dollar pension fund, excellent contract protection, instrument and travelers insurance, work referral programs and access to licensed booking agents to keep you working.

As an AFM member, you are part of a membership of more than 80,000 musicians. Experience has proven that collective activity on behalf of individuals with similar interests is the most effective way to achieve a goal. The AFM can negotiate agreements and administer contracts, procure valuable benefits and achieve legislative goals. A single musician has no such power.

The AFM has a proud history of managing change rather than being victimized by it. We find strength in adversity, and when the going gets tough, we get creative - all on your behalf.

Like the industry, the AFM is also changing and evolving, and its policies and programs will move in new directions dictated by its members. As a member, you will determine these directions through your interest and involvement. Your membership card will be your key to participation in governing your union, keeping it responsive to your needs and enabling it to serve you better. To become a member now, visit www.afm.org/join.

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Vice President from Canada

awillaert

Alan Willaert – AFM Vice President from Canada

    CFM Focuses on Festival/Award Show Negotiations

    Members were recently advised that the newly-negotiated agreement with the East Coast Music Association was overwhelmingly ratified. This was the first time in many years that the Canadian Office was directly involved with a primary labour dispute. While the necessity of such action is regrettable, status quo was not an option and neither was the absence of a workable agreement for musicians.

    At the last meeting of the Canadian Conference in June 2016, the delegates were presented with some agreement templates suitable for use with festivals and award shows, particularly ones that change venue/city from year-to-year. While there is always room for negotiations, the conference deliberated on format language that could serve as the basis regardless of location. As a result, when the ECMA first indicated they were not interested in renewing the previous agreement, the CFM had no choice but use all means available to reverse that decision.

    With the Juno Awards less than a month away, our office is on the verge of signing a national agreement, which—again according to Conference mandate—would follow Junofest to wherever the event will take place in the next few years. Like the ECMA contract, we are working on pension being applicable to the showcase performances, as well as contracted events and the award show.

    We have also entered into negotiations with the Western Canadian Music Alliance, with a view to establishing an agreement to cover the Break-Out West festival, which takes place in the fall. This year, it travels to Edmonton, Alberta. At the crux of these negotiations is the fact that this festival has evolved into a “networking” opportunity, making this a nonpaid event. Again, status quo is not an option and having no agreement in place to protect the musicians is unacceptable.

    Next up will be the Canadian Country Music Association, with their event taking place in Saskatoon, Saskatchewan, later on this year. We have just begun to make contact, again with a view to establishing a mobile, national agreement.

    While I am ex officio as a member of the negotiating team, our Standards Committee has come up with a workable format to spread the workload of bargaining. Therefore, International Representative Allistair Elliott will also serve, along with an officer from the host city where the event takes place in the current year, as well as officers from the previous and next host cities.

    It’s important to understand how these negotiations impact upon you, the members. Without a CFM negotiated agreement in place, there would be no minimum standard fee. Without a CFM agreement, pension could not be paid. And finally, without a media agreement outlining the parameters of what can be recorded, for what purpose, and at what additional fee, there would be no control over ownership, replays, or other new uses of the tracks.

    These events are also popular venues for emerging artists, many of them not yet AFM members. In Canada, we are able to extend our umbrella to protect them by establishing a Temporary Membership Permit (a version of the Rand Formula), which allows nonmembers to work under a union contract, if they pay a fair share of the cost.

    Of particular importance is pension. While the subject matter of a retirement fund is a conversation most young musicians are not willing to have, we must bear in mind that our pension is a reality because of past generations of musicians who contracted for and negotiated pension into their contracts, in order to ensure that future members would have a comfortable retirement. The responsibility lies upon each of us to do the same for ourselves and generations to come. By not contracting for pension, you are letting the employer escape an obligation, and making it difficult for our pension to survive through a poor investment market. Please do your fair share so that we all may benefit for years to come.

    The CFM is committed to establishing agreements with all festivals and award shows that feature live performance of musicians to establish fair wages, pension, and a level playing field for all musicians. It’s the right thing to do.

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    Bargaining to Begin with ECMA

    Pour la version française cliquez ici

    Since the writing of this column, the parties have successfully negotiated a successor agreement.

    The 2017 edition of the East Coast Music Awards is scheduled for April 26-30, with the host city being Saint John, New Brunswick. During those five days, the city will be immersed in music in every venue, culminating with the gala award event Sunday night. However, in early December, the East Coast Music Association (ECMA) was placed on the AFM’s Unfair List by the Canadian Office.

    The ECMA and the AFM had enjoyed a long, mutually beneficial relationship, with the signing of the first agreement in the mid-1990s. Contracts that included pension were always in place for sponsored showcases, events, and the awards show. The AFM would often sponsor an award, and was omnipresent every year with an informational booth, workshops, and seminars on topics of interest to musicians embarking on careers in music.

    Two years ago, something changed. The ECMA refused to come to the table and renew the agreement. Although the broadcaster of the awards show signed a letter of adherence, the showcases and other events were not under AFM contract.

    Without the renewed agreement and/or a properly executed AFM contract in place, there could be no pension contributions. In addition, recording was rampant and streamed both during the week and well after.

    CFM representatives met with four members of the ECMA board in October. It became clear, after considerable dialogue, that a reasonable fee for the musicians was not the issue. Having the “union” involved was, for all the philosophical reasons.

    In many of our agreements, including this one, a temporary membership permit (TMP) is required to be deducted from the fees of nonmembers. It seems this became a bone of contention. In Canada, this is an application of the RAND formula, under which nonunion employees have a portion of their wages deducted as their share of servicing the CBA under which they are working.

    Using this formula allows a temporary member to be listed on the contract with members, and receive exactly the same services and benefits for the same classification of service, for the duration of the gig. This includes pension and any ensuing residuals, such as New Use. In addition, the TMP fee can be credited toward membership for one calendar year.

    If the musician does not take advantage of the credit, those fees find their way back into the music community, through the host local’s outreach at seminars and informational meetings, as well as the sponsorship of awards.

    There have been some developments in this rather unfortunate situation, as the ECMA board has contacted our office and agreed to sit down to bargain a successor agreement. Negotiations will take place in Halifax January 18 and 19, with January 20 as a backup date.

    It’s our sincere hope that we are successful, the musicians’ performances are protected and properly remunerated, and the CFM and ECMA can once again join forces as partners in the effort to bring East Coast music to the world, and for the world to recognize the musicians that make this truly unique sound.

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    Canadian Content in a Digital World: 12 Important Points of Our Brief

    Canadian Content in a Digital World is an extremely important consultation process initiated by the Honourable Mélanie Joly, Minister of Canadian Heritage. As I have reported previously, by opening up many laws and their respective boards, we have an opportunity right now, to equalize what was lost through the evolution of digital distribution. However, this revisit presents imminent danger, as those who utilize digital content and those who profit from it, are also welcome to present their wish list. A detailed presentation by the CFM is imperative, as well as joining other organizations of like minds, in order to counter the demands of a profit-focused industry. The deadline for written submission was November 25, and the following is a short summary of our full brief.

    This consultation should lay the foundation for the regulatory and policy tools and financial support needed to ensure that Canadian professional musicians thrive in the digital environment now and for the years ahead.

    1) Amend the definition of “sound recording.” The current definition of sound recording in the Copyright Act needs to be amended so that performers can collect royalties when their recorded performances of music on the soundtracks of audiovisual works, such as TV programs and movies, are broadcast or streamed on the Internet and when they are presented in movie theatres. Also, we recommend ratification of the Beijing Treaty.

    2) Remove the $1.25 million royalty exemption for commercial broadcasters. Amending the Copyright Act to remove this unnecessary exemption for commercial radio would add millions of dollars’ worth of royalties for recording artists.

    3) Expand private copying to include new copying technology. In the course of this consultation, the government should undertake to prepare the necessary legislative changes needed to update the private-copying regime to reflect advances in digital copying technology.

    4) Reform the Copyright Board. Improvements to the operations and practices of the Copyright Board, which are procedural and regulatory in nature, need to be addressed and implemented as soon as possible.

    5) Reduce piracy in the digital world. Our cultural policies and laws must offer a practical response to piracy that better aligns with how Canadians consume content, and that helps Canadian professional musicians and other content creators succeed in a digital, global market.

    6) Value Canadian content. Valuing culture through up-to-date legislation, funding innovation and creativity, and education is “key to having a strong society, a vibrant democracy, and to promoting Canadian cultural content to the world.”

    7) End runaway post-production. We urge the Minister of Canadian Heritage to make changes to the CAVCO qualifications in order to disincentive domestic media producers from using offshore musicians to record scores for Canadian movies and television programs created by Canadian musicians in Canada.

    8) Continue funding for musicians. We encourage the federal government to continue to support the Canadian music industry through a series of direct and indirect measures.

    9) Update Canadian content regulations. We urge the government to work with the music community to transition content quotas and the MAPL designation from an analog to a digital world.

    10) Support venues for live performance. The federal government needs to work with provincial and local governments to ensure that there is adequate funding to support venues where recording artists can perform live.

    11) Improve music education. We recommend that governments at all levels work together to improve music learning in our public schools.

    12) Support export of Canadian musicians. We ask that the government follow through with its commitment, made in the Music Industry Review, to improve funding and support for Canadian musicians touring domestically and internationally.

    While a thoughtful and comprehensive submission is essential, we continue to lobby Ottawa, attend Department of Heritage seminars/panels, and push hard to ensure the government recognizes that the American Federation of Musicians of the United States and Canada is the only voice they should consider when inviting input from musicians in the artists/creators sector of this country.

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    Recommendations for Amendments to Canada’s Copyright Board

    Pour la version française cliquez ici.

    Last month, I spoke of our renewed efforts to bring Status of the Artist legislation to Ontario. This month, it’s the CFM submission to the Committee of Banking, Trade and Commerce, part of the Senate of Canada, on the operation and practices of the Copyright Board of Canada. With Heritage opening the door to examine and revise so many aspects of the laws that affect culture—and musicians—we felt that it was best to separate our recommendations for the Copyright Board (which are procedural and regulatory in nature), and treat the 2017 s.92 Copyright review as a separate issue.

    One of the major issues is the backlog of decisions, which can sometimes take years, as well as sometimes erratic rulings when setting new tariffs. I will skip many of the details of our submission, and focus on the four major recommendations.

    Voluntary Agreements

    One approach to relieve the board of the backlog of tariff certifications is to consider voluntary licensing, a regime used in countries such as Finland, France, Greece, Israel, and Mexico, which have no rate-setting procedures. In the UK, collective licensing for remuneration is voluntarily agreed upon by contract between the parties. When consensus cannot be reached, a tribunal is utilized to play a part in the process. In Holland, the tariff for performers’ rights are made by agreement with the users, and distributed to phonogram producers and performers on a 50-50 basis. Upon disagreement of share, the High Court in The Hague has exclusive jurisdiction.

    Mandatory Mediation

    We recommend that all tariff matters before the Copyright Board be subject to a prehearing mediation process, using the mediation programme and case management under the Ontario rules of Civil Procedure as a model.

    Expedited Process

    An expedited process can be found in the Australian copyright law, which requires that “… proceedings shall be conducted with as little formality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Tribunal permit.” The UK and the US copyright tribunals provide for similar expedition in the case of simple matters.

    Another avenue would be to set out specified timelines in the regulations for any matter before the board.

    Criteria for Rate-Setting

    The CFM was among 70 music organizations that publicly opposed the Tariff 8 decision, which set royalty rates for noninteractive webcasting services in Canada. The decision also brought into focus the need for rate-setting criteria that includes consideration of existing marketplace agreements. The rate, in fact, ignored international standards that support the growth and development of the industry in world markets.

    A report written by Marcel Boyer, Professor Emeritus of Economics, University of Montreal, for the C.D. Howe Institute entitled: “The Value of Copyrights in Recorded Music: Terrestrial Radio and Beyond,” concluded that the value of recorded music is approximately 2.5 times greater than the level of royalties certified by the Copyright Board. Boyer continued that the approach used by the board consistently undervalued copyrights in the context of the commercial terrestrial radio industry, and that this flawed approach has been carried over into the determinations for noninteractive webcasting tariffs.

    The CFM recommends that specific criteria be used for rate setting, including recourse to comparative market value analysis under s.66.91 of the Copyright Act.

    I would like to take this opportunity to encourage all members to embrace the spirit of love, compassion, and giving that is prevalent at this time of year. We sometimes take for granted how fortunate we all are, to have health, family, and relative peace in our time. I wish each of you a very Merry Christmas, and the best to you and yours for a wonderful and prosperous new year.

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    Changing Workplaces Review Special Advisors’ Interim Report

    The Ontario Government has released an interim report of the Changing Workplaces Review, which can be found at: https://www.labour.gov.on.ca/english/about/pdf/cwr_interim.pdf.

    This 312-page document contains a synopsis of submissions from various unions and organizations that pertain to areas of the Employment Standards Act (ESA) and the Labour Relations Act (LRA) that may no longer be relevant in today’s workplace—specifically to workers in the audiovisual/media industry. Also contained are what the advisors consider to be options, based on those submissions and existing practice in other jurisdictions around the world.

    As in all things involving government, this vast review may be nothing but a diversion pending the next election; or, it may be an opportunity to make positive change for musicians in how they are viewed and treated in the workforce and the remedies available to them in conflicts with employers.

    For Canadian musicians, maintaining status as either independent or dependent contractors has huge tax advantages. Unfortunately, in most cases, this precludes the ability to capitalize on the benefits of being an employee. Certainly, a hybrid of the two is desirable, yet unlikely to ever materialize.

    The CFM has taken the position that we will support some of the principles put forth by other arts organizations such as ACTRA, IATSE, and the DGC (some of whom do have employee status), but we must also think of what is best for working musicians. That, of course, is legislation that mirrors the federal Status of the Artist Act.

    Here is the content of the submission to Queen’s Park from the CFM:

    4.2.2 – Related and Joint Employer

    Respectfully, the observations and possible solutions suggested in the review in determining the “true employer” or “related employer” does not address the shell game that exists within the media industry as it relates to musicians. As an example, let’s use a hypothetical film entitled Working Title, which is being produced by a member of the Canadian Media Producers’ Association (CMPA) for initial broadcast on Canadian TV or cable.

    The independent producer generally retains the services of a composer under a personal services contract, whereby the composer agrees to deliver a finished original recording as underscore for Working Title. The composer writes the score, and may perform some or all of the parts on a digital workstation (synthesizer). Or, the composer may hire additional musicians—in some cases a full orchestra—to record an even more elaborate score.

    Either way, the composer and the musicians would be covered under a CFM film agreement. These agreements contain language stipulating that the original score must remain synchronized to Working Title, and that the music cannot be extracted to be reused or repurposed for other programming, without adherence to the appropriate CFM agreement. But the independent producer is not the signatory (because they cannot be compelled to bargain with the CFM), and through their personal services contract with the composer, require the composer to be signatory and thus technically responsible for the recorded product.

    Now it gets interesting. Let’s assume that the terms of the CFM agreement have not been adhered to, and the music for Working Title is now being used in a television spin-off programme. Who, then, is responsible for making the musicians (including the composer), whole? Is it the poor composer, who the independent producer insisted upon being the employer of the musicians? Is it the independent producer, who owns the intellectual property (copyright) on Working Title? Is it the broadcaster, who perhaps initially commissioned the film to be produced and subsequently lifted the music for their new TV show? Is it the (possible) US co-producer, who has invested heavily in the production as a silent partner? Is there any liability on the part of the Ontario government, which funded a significant part of the production through tax credits and grants?

    There are many possible combinations of the above scenario, including multiple production companies, sometimes solely incorporated to payroll only Working Title, and then disappear upon completion of the production to avoid further liability, or any detectable connection with a “true” employer.

    While the suggested solutions in 4.2.2, including rulings being made on a case-by-case basis, may address more simple relationships, there is no way they can address the above convoluted example. Interestingly, the above confusion is entirely avoided if the CFM negotiates a scale agreement with the independent producer.

    The CFM, therefore, recommends introduction of provincial Status of the Artist legislation, with a collective bargaining component, as contemplated in 4.6.1—Broader-based Bargaining Structures, Option 9. In addition, we recommend that the Ontario Labour Relations Board (OLRB) govern the act, similar to how the Canadian Industrial Relations Board (CIRB) has assumed that responsibility formerly held by the Canadian Artists and Producers Professional Relations Tribunal (CAPPRT).

    In addition, we recommend that any single producer who becomes part of a producer association and is bound by a scale or other agreement, be automatically bound by such agreement upon joining. Conversely, a producer should not be allowed to escape the terms of an agreement by withdrawing membership from the producer association.

    Further, once a provincial Status of the Artist Act becomes law, any existing collective or scale agreement negotiated by any of the arts associations or unions, must be grandfathered to avoid any unforeseen negative impact.

    5.2.1 – Definition of Employee

    Musicians represented by the CFM have many different employment scenarios, ranging from clear “independent contractor” gigs (such as weddings or concert work), to “dependent contractor” situations (such as symphony orchestras and long-run theatrical work) to instances where they are employees by definition.

    The CFM supports the notion that “dependent contractors” should be provided for in the ESA under Option 6. We also support the premise that, in the case of an employer attempting to avoid responsibilities under the ESA by classifying workers as self-employed, the burden of proof would be on the employer to make the case as to why they are not employees or dependent contractors, whichever the case may be.

    5.2.2 – Who Is the Employer and Scope of Liability

    The CFM is in support of Option 2: holding employers and/or contractors responsible for their contractors/subcontractors compliance with the ESA.

    That said, determining who the players are, as explained in the Working Title example, would lead to unlimited confusion and long lines before the OLRB, in terms of proper application and remedy concerning employers of musicians. In terms of recorded work in audiovisual media, CFM recommends that the determination of who is the employer include the question of intellectual property. Simply, who ultimately owns the copyright on the product? That entity (if not the contractor or subcontractor) should clearly be looked to, especially in the case of obligations and liabilities in the future, or in the case where the copyright is assigned to yet another party.

    In Conclusion

    The CFM has no objection to the various amendments suggested by our counterparts in the entertainment/media industry in terms of amendments and clarifications to the ESA and LRA. However, we cannot stress enough that such measures fall short of what is required to regulate employment of musicians and remedy any situations that may arise perhaps years after the work is complete. We believe introduction of a provincial Status of the Artist Act is a solution that can only enhance the recommended changes and simplify the relationship between employers and musicians who are traditionally self-employed contractors.

    As phase two, the CFM has Status of the Artist legislation written and ready to present.

    Hopefully, they will accept our proposal to introduce this legislation, and can then compel individual employers or their associations (if empowered to negotiate) to bargain agreements for our musicians. It would be the right thing to do.

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Official Journal of the American Federation of Musicians of the United States and Canada