Next Stage: Q&A on COVID-19 implications for performing arts

PERFORMING ARTS WEBINAR

Susan:  Welcome to the next stage, our Q&A on COVID-19 and vocations for the performing arts. The performing arts sector has been, and will continue to be, one of the hardest hit sectors in this pandemic. I am Susan Abramovitch. I am the head of the entertainment and sports law group at Gowlings. Many of our clients are among your members. We represent performing arts venues, presenters, also writers, composers, performers and other players in all areas of the arts. I am also a Governor on the Board of Governors of Massey Hall & Roy Thomson Hall so in that capacity have been dealing with many of the issues that you all are. For this webinar, just some technical notes. You'll note that the chat is disabled from your perspective. So you can't chat with us although we will be sending you some notes in the chat. There's already a couple there. But you can use the Q&A to send us questions. We won't be dealing with additional questions. We have lots from you already so we won't be dealing with your live questions now but please feel free to submit them and we'll try to find a way to answer them after this webinar. In fact, it may be that we answer some of them by way of FAQ or Q&A newsletter so I recommend, strongly, that you sign up to receive our newsletter because that may be the way we deliver some of the responses. Gowlings is a full service law firm. That means that we represent clients in all areas from tax to corporate to employment to litigation. That allows us to present you with a cast of characters here from different sectors of our firm.

To introduce them, starting from the bottom, Jahmiah Ferdinand-Hodkin is a litigation partner in Gowling's Ottawa office. Her practice focuses on commercial litigation, entertainment and sports litigation and professional liability. She is also certified in risk management and assists clients to develop risk and crisis management plans. One up from her is Alexis Vaughan who's an associate in the intellectual property group in Gowling's Toronto office. Her practice focuses on intellectual property litigation, life sciences and entertainment and sports law. And finally, right under me, Andrew Bratt, is a partner in our Toronto office and the Toronto group leader for the employment labour and equalities practice. Andrew's practice focuses on all aspects of employment law with a specific focus and expertise in litigating employment disputes. Next slide. Alexis, next slide. Thank you.

We won't spend a lot of time on this. I fought very hard for this slide not to be included in this webinar but it is important to note that, of course, legal advice is specific to the questions and there are also jurisdictional differences. So, next slide. Here's our agenda for the day. We're going to touch first on force majeure and frustration in contracts. A vast preponderance of your questions related to that. So we'll spend a bit of time on that. Employment issues that were asked and then some copyright law issues that were asked. So I'll turn the floor over to Jahmiah.

Jahmiah:  Thanks, Susan. So as Susan mentioned we noticed that many of the questions that you had related to contractual solutions that might be available to assist you with cancellations and delays associated with COVID-19 and the lockdowns. In my section in this conversation I'll give you an overview of what the context of force majeure and frustration of contracts are and how they can be used. I'll try and answer as many of the questions that you had for us through this summary. Given that I practice in Ontario my comments are largely reflective of the law in Ontario. However, I can say that the law regarding both of these concepts is fairly consistent across the country, with the exception of Quebec. I will though highlight where Quebec is different. Next slide.

 Your starting point has to be the specific contracts that are in place. There are multiple clauses in your contracts that might be able to assist you in the present circumstances. The one that we'll focus on here, as I mentioned, is force majeure. But that's not to say that's where you should end your analysis. You may be presently surprised to find that there's other recourses available to you if force majeure doesn't fit into the particular scenario that you're looking at. Some of those options are excusable conditions, delay clauses and relief clauses. So force majeure is what is often referred to as the act of God clause. Essentially what these do is identify which of the contracting parties owns a particular problem that is outside of the control of both contracting parties. The applicability of force majeure is a very fact driven question. Therefore what is available to one party under one contract may not be available to other parties under a different contract. There's no standard template force majeure clause and in fact these clauses can vary quite substantially from one contract to another. I've put a sample clause up for you to read just so you get a sense of what a force majeure clause can look like. I don't recommend using this in your contracts though going forward. You would want a clause that's more tailored to you and addresses additional issues. However, this sample clause does illustrate what I mean by force majeure. Now while I've said that force majeure clauses can vary greatly, one from another, there are some similarities. First of all the goal. It relieves the affected party from damages or penalties arising from any delay or non-performance of obligations. Second is the content. Generally, every force majeure clause lists out the type of events that will be considered a force majeure event, such as act of God, severe weather disturbances, war, terrorism, government restrictions, prohibitions, bans, shutdowns. Now if you're hoping to invoke a force majeure clause based on the current COVID pandemic look for references in your contract for pandemics, epidemics, global health emergencies, infectious or communicable diseases, global outbreaks, government regulations, actions, emergency measures, prohibitions, shutdowns. These are likely phrases that will trigger the applicability of the clause in the present climate. The third aspect of contracts, force majeure clauses that is generally consistent, is control. So the force majeure requires that the event be an event beyond the affected parties control and that the affected party could not have taken any steps to prevent it's occurrence. That's why labour disturbances and supply chain issues are often not included in force majeure clauses. It's considered that the responsible organizations should exercise due care and control over its approach and then these events wouldn't technically be beyond their control. The fourth aspect is notice. So it might be required for the affected party to give prompt notice of an occurrence of a force majeure event and to provide a mitigation plan on how it intends to address, manage and reduce the impact of force majeure within set time lines. The last sort of consistent measure across all force majeure clauses is termination. That's to mean that in some instances force majeure clauses will specifically identify that one of the effects of the clause is to give the parties the right to terminate the contract if the force majeure event continues for a set period of time. For example, greater than 45 days.

At the beginning of this presentation I said that there were differences across Canada and certainly internationally in how these clauses could apply. The first consideration in determining your potential recourse is jurisdiction. Where are your contracts made and what do the contracts stipulate as being the governing jurisdiction? The contract may have a clause that states that all disputes will be resolved in Ontario and governed by the laws of Ontario. Meaning the jurisdiction and the governing law is Ontario. For some contracts though they aren't as clear in terms of delineating that jurisdiction and further analysis is required. This jurisdiction governing law point is exceptionally important. There are significant differences in certain jurisdictions. For example, between Quebec and the rest of Canada. So the concept of force majeure actually comes from  Quebec but in Quebec it operates differently than across the rest of the country. In Canada, excluding Quebec, you can only rely on force majeure clause if it's written into your contract. However, in Quebec the civil code prescribes a force majeure situation, and therefore force majeure will be read into every Quebec governed contract. So you may still be able to rely upon force majeure in Quebec under the civil code even if you don't see it specifically written into your contract. Once you've determined the jurisdiction, and the governing law, there are four elements that we consider to figure out whether a force majeure could help you out. The first is does the event qualify as force majeure? The second is, is performance impossible? Third is could you have foreseen and mitigated the risk? And fourth is how do you want to fix it? In considering COVID-19 what I'll do is I'll go through these four questions with you, generally, to help you understand whether or not your force majeure clause might help you in the situation that you're in. I won't be able to provide you with a definite answer as to whether force majeure will apply in your particular circumstance without actually reviewing your contract. Because every contract is very different and it really does boil down to how your contract is worded and what the triggering event is.

First question. Does this qualify as a force majeure event? You would need to look at your contract and determine whether any of the triggers could fit. Does your contract refer to a pandemic, a public health emergency, government action or a restriction? The question is therefore are any of the scenarios that fit your particular circumstance identified in your contract force majeure clause? If not, what is there and can any of it apply? Some clauses are actually very broadly drafted and have catch-all phrases that might assist you. Some are very narrow and none of the descriptions will match and therefore you won't be able to use that force majeure provision.

Second question. What is the cause? Why is that you can't perform your obligations? Understanding the cause will help inform the question of whether it is really impossible for you to fulfill your contract. So why is an artist not performing? Why is an event being postponed? Why is your facility closed? Ultimately these answers will help you evaluate whether it's impossible for you to perform ... because of the triggering event or just unfavourable, unadvisable or perhaps a preventative measure given the circumstances. If we dig into some examples; is an industry directive for a temporary closure an appropriate force majeure perpetrator? Well, I'd say it, again, it depends on your force majeure clause. Does it include triggering events such as industry directives? Most clauses will require something more overarching. Like government action as opposed to a smaller industry action in order to trigger a force majeure.

That leads into the next question of whether force majeure is triggered if closure is the result of the government restrictions or regulations that have been put in place. It can if your specific clause stipulates the government restrictions, government regulations are a trigger of your force majeure. It can also apply if your clause is broadly drafted to include more overarching principals and given that government restrictions and regulations are one of the more common force majeure elements. The courts may read that into a broadly drafted force majeure clause. Preventative closures, on the other hand, do not usually trigger force majeure because they don't meet that impossibility standard which is actually a really high test to meet. Finally, force majeure associated with COVID-19 doesn't necessarily get triggered when there's an incident of infection at your premises, and conversely doesn't necessarily require a direct incident of infection at your premises to be triggered. On the other hand, as I've said previously, it really depends on the precise wording of your clause as to whether those events will fit into the circumstances.

The third question that we would ask is did you see this coming and could you have done anything earlier to fix it? The main piece of advice regarding force majeure is that you have to act quickly and that's primarily because of this foreseeability requirement. There's a very brief window to exercise force majeure, and given how far we are into the COVID-19 pandemic, that window is actually rapidly closing. The news is constant in terms of what the restrictions are and that those restrictions are being published across the world. Everyone is eyes wide open in terms of how this is snowballing. We know that many facilities are or were closed and that travel is restricted. How long have we known? Was it foreseeable that we would not have been able to operate? If not, did we act immediately after learning that we couldn't operate? Have we tried to mitigate our loss and respond responsibly? Those are some of the questions that you would have to ask yourself when considering whether or not force majeure will apply. The law actually really does require you to mitigate the impact of the event wherever possible. So that will be a big consideration when looking at whether force majeure is going to be able to assist you.

Lastly, think about what you want. Before you get too creative in terms of a resolution the contract will likely specify the relief available to you. Often times it's a relaxation of a time period obligation. There may also be financial solutions available. As mentioned previously, there might be an option to terminate based on your contract. Ultimately though look to your contract to figure out what you're entitled to. But please do remember these clauses are not applied lightly. They are not meant to be easy to claim. After all, the effect of a force majeure clause is to relieve the affected party of penalties or liabilities under a contract for non-performance, leaving the other party with no performance and nothing to incentivize the non-performing party to cure the default. So to fix the problem. It will be a long uphill battle in order to exercise force majeure. It will also be an uphill battle that you won't win if you sit on it too long. In addition to timing effecting the foreseeability requirement that I spoke about previously, some force majeure clauses actually have strict timelines when it comes to providing notice. Notice of request to activate your force majeure clause within 45 or 60 or sometimes it says 90 days. If you fail to adhere to those notice provisions you'll likely be unable to rely on your contract. So your best option is to review your contract, find a lawyer in your contract's jurisdiction, so going back to my first point, and come up with a plan as to how you'll negotiate a resolution so that you can avoid a substantial financial loss to your organization.

The last point that I wanted to raise is with respect to what happens if your force majeure clause doesn't apply? Of if you don't have a force majeure clause in your contract and you're not in Quebec? Well there's also a concept called frustration. Frustration is different from force majeure in that it's not a nicely wrapped solution to resolve an aspect of your contract. It's essentially like a parachute, and if your contract is the burning plane and you just pull a pin to get out, when the contract is frustrated the entire contract blows up. In force majeure you continue to work with the other party. You just excuse the other party from fulfilling one aspect of the contract. The opposite is true in frustration where you rely on frustration the entire contract is terminated. The thing about frustration though is that it's a common law principal. Not a contractual one. Therefore it doesn't have to be written into your contract for it to be relied upon. Basically the doctrine of frustration applies in very similar circumstances to force majeure. An unforeseen situation has arisen. The situation renders the performance of the contract radically different from what was contemplated. Like force majeure, frustration has a very high standard and it is not easily available. You have to prove a lot of the same things in order to get to frustration. The occurrence of an unforeseen event that directly causes your inability to perform, that renders your performance impossible from what you signed up for and that there's not mere economic hardship or increased difficulty. It really has to be impossible for you to fulfill the terms of your contract. But if you're successful in claiming frustration then your contract, as I mentioned at the beginning, comes to an end. It's not just suspended. So really, I would implore you to think strategically about what is best suited for you and what your ultimate goal is before you try and rely on frustration. In our experience, termination of the contract is not usually what people want. Typically, parties want to preserve that good contractual relationship, continue performance of their contracts once the event is over. The trend that we have been seeing is parties actually proactively engaging in open discussions, negotiating side agreements or amending agreements to address their short term challenges caused by COVID-19, and those are happening with a mutual good faith. Sometimes with a cooperation clause inserted into the new agreement that will allow the parties to continue to monitor the situation and extend or amend the temporary suspension or relief as necessary. So really this is a time where you're able to try and negotiate new solutions to get to a resolution that's satisfactory for everyone. Now I'll turn it back to Susan for a case example of force majeure.

Susan:  Thanks, Jahmiah. So that was a great presentation. A lot of what you've told us though is that it's very specific to the jurisdiction, to the clause and to the facts at hand which is true. I've seen some of your questions already. Probably the answers will be very specific to your contracts and to your facts. But I thought it would be helpful if we looked at one set of facts which, potentially, many of you have seen come up in your situation. Next slide.

 Okay. Here's the situation. There is a regional commercial theatre that has a play scheduled to start rehearsals and performances in April. It was contracted in February or January and in March the government restrictions came down that theatres had to close. So the players are theatre, we have its professional organization, the Professional Association of Canadian Theatres, and on the other hand we have Canadian Actors Equity which represents performers, directors, actors and the talent. We have a play that was supposed to go on, supposed to start rehearsals in April. The contracts are CTA contracts, so Canadian Theatre Agreements, under the equity. Now the play cannot go on. So the question is what can the theatre do about this? Well, we have to look at the contract is what we learned from Jahmiah. Next slide.

 Okay. So here's the CTA that governs the engagement. In this case let's say we're talking about the actors. There's lots of clauses in this agreement but we're going to focus on 37 and 38. 38 is cut off but basically in non-COVID force majeure situations, theatre can always terminate an artist with 2 weeks notice. In other words 2 weeks pay at the contractual rate. So that's one option.  But we want to know if section 37, the force majeure clause, is triggered. So we've learned from Jahmiah that we need to go through four elements. Number one, qualification. Does COVID fall under qualify for this clause to be triggered? Number two, the impossible performance standard. Was, or is, the performance truly impossible? Three, foreseeability. Was the risk of non-performance foreseeable and able to mitigated? And, four, the remedy. What do we do about it if it is triggered?

 So let's go through each of these four elements. First, qualification. Well, if you look at the wording of 37 it says if a company cannot rehearse or perform because of prolonged illness or death of a prominent member of the case, fire, accident, strikes, riot, acts of God or acts of the public enemy, we do not see pandemic listed in there. Frankly, none of them really qualify other than potentially acts of God which is not a defined a term. There is a question mark whether COVID-19 would fall and qualify under this clause. I'll show you a bulletin that came out later between PACT and Equity that did acknowledge in some way that this clause could be triggered.

 Secondly, impossible performance. Okay, was the performance of this play truly impossible? Well, there was a government restriction that said theatres cannot remain open. To me that seems that a performance and rehearsals that were supposed to take place in April come pretty close, if not are already there, to being impossible. In contrast, if the play was scheduled for September, query whether it's impossible. We don't really know yet whether that play will go on or not. That might be harder to fall under this clause as not the company being able to rehearse or perform. You may be in limbo until we know more about September.

 Third, foreseeability. Well, for foreseeability timing matters. In the facts that I presented the contracts were entered into before we know there would be a shutdown. Maybe we knew already in January, certainly in February, that COVID was out there but we didn't know that it was going to shutdown society in Canada the way that it did. Certainly we did not know that the theatres would be completely closed down in April. That being said, if contracts were entered into today for a performance scheduled for September, query whether we should have foreseen that the shutdown of that play might have happened. So that's the analysis there.

 And then the remedy. So in this case you have to look at the clause for the remedy. This clause says that if the rehearsals or performances cannot go on because of one of these qualifying events, the artists receives 1/7 of the minimum fee as opposed to their contractual fee, for each day on which rehearsals and performances are not given thereafter, including the artist free day. Then should any of the foregoing conditions continue for a period of 10 days or more either party may terminate. First of all, the remedy seems to say that you can pay minimum not contractual rate and there may be a big difference between the two. Secondly it says that you're supposed to pay it for each day on which rehearsals or performances are not given. Query, and I don't think this has been tested at all, whether in the case of the fact pattern that I gave where rehearsals were not supposed to start until April, this pay is actually due if rehearsals or performances were not supposed to be taking place on the first 10 days, anyhow. That may be a stretch of an argument but it's there. And then certainly what happens after 10 days is that you have the right to terminate. It doesn't say that you can postpone. It just says that you can terminate. So if you're postponing you're not necessarily availing yourself of the latter part of the clause where you no longer have to pay the actors. Next slide.

 So as I was saying PACT and Equity put together a bulletin on March 16^th and sent it out and agreed that section 37, the clause that we were just looking at, has an interpretation that if a theatre is required to cancel a performance or rehearsal for reasons beyond its control, doesn't mention COVID specifically, that section 37 applies. In terms of paying for 10 days of minimum weekly pay and then after 10 days you can cancel. Although they say if it's out of the control of the theatre, meaning you have to be careful, you can't just go and cancel all your performances. There's still this question of foreseeability and impossibility of performance. So if the plays are too far out you may not be able to avail yourself of this clause. Thank you. Now I'll turn the screen on to my partner, Andrew Bratt. Discuss some of your employment law questions.

 Andrew, are you there?

Andrew:    Sorry guys. I was having some technical difficulties. I'm here now. Okay. So on the unemployment issues we received a number of questions and unfortunately given the interest of time I'm only going to be able to answer probably two, maybe three of these questions. We'll see how quickly we can get through the first two. First and foremost we were asked whether employment contracts can be revised to reflect the new normal. Specifically we were asked whether or not we can update our contracts to change salaries. So presumably salary reductions, job descriptions and other essential terms of the employment relationship. Not surprisingly many employers throughout the country are looking to make significant revisions to their existing agreements, as both a cost conservation measure, and also to ensure the long term viability of the organization. So the short answer to the question is, yes. Employment contracts can be revised, and where you are looking to make fundamental changes to the essential terms of the employment relationship, you absolutely should try to amend those contracts either by way of a letter, an amendment letter, or a brand new agreement depending on the extent of the changes that you're looking to make. That being said, depending on sort of what kinds of changes you're looking at, you may need to consider providing something of value in exchange for the employee agreeing to be bound by the new terms and conditions of employment. This is a concept that we call fresh consideration. When you entered into that employment agreement in the first place, the employee agreed to certain terms and conditions of employment. If you're now trying to modify those terms, and in particular modify them in a significant way, then generally speaking you need to provide something of value to the employee in exchange for him or her agreeing to be bound by these new terms. In addition to that you should also provide them with an opportunity to obtain independent legal advice. What you shouldn't do is present them with a brand new letter, or a brand new contract, and force it down their throats. Don't give them an ultimatum (ie: sign here or we'll have no choice but to fire you) and don't do anything that would be perceived as sort of getting them to agree to a new employment contract under duress. Otherwise you might find that it becomes very difficult to enforce the revised terms in the future which defeats the purpose of the revised contract. When it comes to salary reductions there's also the potential for a constructive dismissal claim. A constructive dismissal claim is essentially a claim where the employee takes the position that the employer has unilaterally modified the fundamental terms of the employment relationship such that they've breached the employment contract. As I mentioned earlier, when you enter into an employment relationship you do so on a set of terms, but when you do that you can't just go ahead and modify those terms unilaterally after the fact unless the employee consents. So, where the employee doesn't consent they're free to take the position that you've repudiated the contract, you've breached the contract and that they've essentially been dismissed as a result of those changes, in which case you trigger their severance obligations and, of course, that's not what you want to do. When it comes to compensation reductions, there are no hard and fast rules, but the courts have generally said that if you're under a 5% overall total com production you're probably okay. If you're between 5 and 10% it's a bit more of a gray area. If you're above 10% almost always it's going to trigger a constructive dismissal. What's interesting about COVID is that there's no clear indication, at least right now, what the courts are going to do with constructive dismissal claims that are due to COVID. 10 weeks ago, or 11 weeks ago whatever it was now, I would have been giving very different advice. I was giving very different advice. If an employer/client had approached me 10 weeks ago and said, "Look. We need, for financial reasons, we need to reduce somebody's salary by 15%." The advice would have been, "Don't do that. You've got to look at other measures, less significant measures because if you do that you're essentially walking yourself into a constructive dismissal claim." As a result of COVID, the global pandemic government mandated shutdowns, where it's really not the employer's fault, most management side employment lawyers are of the view that the courts are going to have no choice but to be far more lenient, and to relax the rules around what employers can and cannot do, especially when it's outside their control. So it remains to be seen how the courts are going to address these types of claims. We haven't seen any of them yet because, (a) it's brand new; (b) the courts are closed; and (c) for the most part employees that are experiencing these kinds of reductions are sort of sitting back, not necessarily accepting the changes but realizing that the alternative is a lay off or termination. So they're temporarily accepting these changes but are waiting to see what transpires in the future. What I would say is that this is not carte blanche to go make significant modifications to one's compensation package. The changes that you are making should absolutely be temporary and they must be justified. By that I mean don't reduce somebody's salary by 25% if you haven't experienced a decline in revenues. Of course, if you're business has been shutdown and there are no revenues, that's a completely different story. But as you can appreciate there's a lot of employers out there who are taking advantage of the situation, and despite not experiencing a big reduction, are looking at this as an opportunity to try to increase profits. Not to suggest that's what's happening in your space, but we suspect that when you do go before a court and you do try to justify the change, a courts going to want to see that if it's a salary reduction it happened across the board. They're going to want to see that your C-suite executives are also experiencing a corresponding pay cut as well.

 When it comes to other changes, so non-financial changes like job descriptions, the analysis is essentially the same. Again, it starts with the basic premise that you don't have the right to change the fundamental terms of the employment relationship. If somebody was hired for a very specific role you don't have the right to unilaterally modify that role subject to what the agreement says. The agreement may have provided for some flexibility to make minor modifications but generally speaking, again, if you're going to make changes to the job description, to the role itself, to the duties and responsibilities which may be happening now as a result of COVID, to the work location, for example if you're going to be going to a work from home type scenario, it's important that you memorialize those changes in the agreement and that you get the employee's consent to the extent that you can, to help mitigate the risk of a potential constructive dismissal claim. I should also mention that in the unionized context the analysis is quite a bit different and that's because wages and job descriptions are governed by the terms of a collective agreement. The collective agreement may require that you consult with the union before making such changes. Even if it doesn't you may decide to do so anyway and it may require that you modify the collective agreement, or that you enter into a letter of understanding, either to suspend or alter parts of the agreement on a temporary basis. Suffice it to say if there's a collective agreement in place, with respect to the individual that you're trying to make changes to, it won't be governed by an individual employment contract, rather the provisions of the collective agreement and it's really important that you get specific advice around the interpretation of those provisions and how you make changes, if it all.

 The second question that we received, which I think is probably one of the more common questions I'm getting across the board these days, is how can we ensure that artists and contractors, or just employees generally, are healthy before coming on site? It's obviously a fair question and it's an important question because not only do you have a moral obligation to ensure health and safety of your workers, you also have a legal obligation under Occupational Health and Safety legislation. The rules are somewhat different across the country in various Provinces but generally speaking every Province requires that employers maintain a healthy and safe workplace for all their employees. In normal times that's not overly difficult to do although I appreciate that in different industries it may be so, for example, construction. But generally speaking maintaining health and safety for your workers is not overly complicated. It now has become very complicated because of COVID. It's become problematic, and it's become challenging, because you don't have visibility into what your employees are doing in their private time, in their personal lives. You don't know if they're following public health recommendations. You don't know if they are engaging in social distancing or practicing social distancing. You don't know who they're exposed to, who they're living with, etcetera, and so it becomes very difficult to know whether or not you're putting everybody else in your workplace at risk by allowing that individual to enter into the workplace or to come on site. What we've also seen a lot of lately is other workers that are expressing concerns. Some of this comes up because of social media. A lot of employees are friends on Facebook, or Instagram or whatever it may be, and they see their colleagues and their co-workers doing things that they don't necessarily agree with, non-engaging in social distancing, and it causes them great concern. I will say this, there's no perfect solution. I don't have an answer for you in terms of how you can unequivocally, categorically ensure that everybody is safe but I can tell you is there are two measures that a lot of employers are adopting right now and that, again, they're not perfect but they are certainly helping to ensure a healthy and safe workplace. So they are temperature checks and wellness checks and I'll talk about each one separately.

 With regards to temperature checks, I'm not sure what the statistics are right now in Canada in terms of how many employers are using them. I think you're going to see a dramatic increase. For the most part, businesses that were designated as essential businesses, started a trend because they've been operating all along and now as the economy slowly starts to re-open we're started to see this more and more with non-essential businesses. It's  not a perfect solution. I say it's not a perfect solution for three reasons. First and foremost you can have an elevated body temperature without being sick. So the one example that's been brought to my attention, quite recently, was menopause. There are other circumstances in which you can have an elevated body temperature without being sick and there's no way to know that. Number two, you can have a fever without having COVID. And number three, you can have COVID without having a fever. I think I saw a statistic recently that about 50% of people who have been diagnosed with COVID never had a fever throughout their symptomatic period. That being said, it's better than nothing. More often than not if somebody has an elevated temperature it's because they're sick, not always, but more often than not. Even if they don't have COVID they probably shouldn't be in the workplace. For the most part, testing for fever, which is typically defined as 38° Celsius or 100.4° Fahrenheit and above, is not a bad idea and it will give some comfort to the rest of the people in the workplace that you're at least taking some measures to ensure that you're not allowing people who are symptomatic to be present in the workplace. I will say that it's really important that the test only be used for the purposes of assessing admissibility into the workplace. You literally take the person's temperature and determine whether or not they have a fever. If they have a fever they're not allowed to be in the workplace. You send them home. If they don't have a fever they can be admitted. The information should not be used for any other purpose, disciplinary or otherwise. There are some privacy concerns or considerations in certain jurisdictions like Quebec, BC and Alberta where they have private sector privacy legislation. Ontario does not. We don't have enough time today to get into the privacy considerations but generally speaking, so long as you are not recording or storing or using the information for aid or purpose, it should be fine. So literally you have a touchless thermometer, you take the test and you determine whether the person can come into the workplace and that's it. That's the last you hear of that report. There's no report that's stored. The information's not recorded anywhere and there's no personal or identifiable information that's maintained in any of your records. With that being said it's really important to establish a proper protocol for how you're going to handle people who do test, not test positive, but for people who have a fever. Are you going to just send them home for the day and allow them to come back when they're symptom free? Are you going to require that they self-quarantine as public health recommends that you do? Those are questions that you have to give some thought to in advance and there is no right or wrong answer. There's many different ways to approach it but that protocol really has to be established in advance so that you know exactly what to do once the person does in fact have a fever.

 In addition to temperature checks, the other strategy that a lot of employers are adopting right now, is to conduct wellness checks. It can be done verbally or by way of a written questionnaire. But in general you're asking the employee three questions in addition to, or the contractor, or any visitor to your work site. You're asking three questions in addition to taking their temperature. One is have you travelled outside of Canada in the last 14 days? And you're asking that question because public health is basically mandating that anybody who's travelled outside of Canada, and has returned in the last 14 days, is required to self-quarantine. So you need to know if they've been outside the country. Not as much of an issue now as it was a few weeks ago because people aren't really travelling. Number two is the exposure question. Have you had any close contact with anybody who is a confirmed or suspected case of COVID? This is a really important one because if somebody's had exposure you need to determine, (a) whether or not the contact was sufficiently close that they themselves have to self-quarantine, and it may depend on whether they're symptomatic or not, but you also have to determine whether or not they then have to tell you who they've had close contact with within the workplace so that you can then determine whether or not those people, within your workplace, have to also self-quarantine or self-isolate. Then thirdly, and perhaps most importantly, is the symptom question. Have you exhibited or are you experiencing any COVID related symptoms? There is no once size fits all approach in terms of what symptoms you're asking about. For the most part you're looking at fever, a cough that's not related to allergies and shortness of breath or pressure in your chest. But if you look at the public health list of symptoms it's incredibly long and it covers things like a sore throat, chills, runny nose, even a headache. So I'd be very careful before listing all those symptoms, and depending on what your protocol is, because if you're requiring somebody to self-isolate for 14 days if they exhibit any symptoms, you probably don't want to list a headache because there are lots of people who get headaches regularly and there's no reason to believe they have COVID. So typically you're looking at the most common symptoms, which personally I would include fever, cough, shortness of breath, sore throat, difficulty swallowing. Those are the most common ones. Other lists have things like loss of taste, loss of smell, etcetera, so you'll have to determine how deep you want your list to be. But those are essentially the three questions you're asking and if the answer to any of these questions is yes, so yes I've had close contact, or yes I'm symptomatic, or yes I've returned to Canada in the last 14 days, then you need to consider what your protocol is. Are you quarantining until you're no longer symptomatic for a period of time? Is it 14 days or 72 hours, and depending on which public health agency you're looking at or you're relying upon, the protocols going to differ. Ideally, anybody who's symptomatic or has had close contact with somebody who's a confirmed case, would self-quarantine for 14 days. But we appreciate that that's not always possible and that may exclude too many people from the workplace. You may limit it to anybody who's confirmed as having COVID, anybody who's travelled or anybody who's exhibiting any of the more common symptoms, or two or three of the more common symptoms. So there's different ways to do it and in some cases you may actually want to consult with public health if you're not sure, because as good as the advice we can give is, we're not doctors. Sometimes it's better to rely on medical professions to make that determination for you. So I think in the interests of time I'll probably skip over the third question although it's an important one. I do want to leave enough time to get into the other topic so, without further ado, I think we're going to move along.

Susan:  Thanks, Andrew. Sorry that we couldn't make it to the third question. Again, we'll try to answer that question and your very good questions that you've been asking all along, in some other format after this presentation. By the way, I know we called for this webinar to end at 11:45. We did start 5 minutes in and we probably need until noon. Obviously feel free drop off if you must and sorry for going a little bit longer. I'll turn it over to Alexis now to answer your copyright law questions.

Alexis:  Thanks, Susan. So like Susan said we're going to switch focus now and talk a little bit about copyright law. Recently we've seen that many organizations, especially in the performing arts sector, are acting quickly to generate and post digital content to keep their audience engaged and connected. When creating and distributing digital content it's important to know your rights and also to be aware of the rights of others so you don't run afoul of them. This becomes particularly important when using the work of others in your own content. For example, if you're using music composed or performed by someone else, or if you're using a clip from TV or film or a recording of another performance. On the slide you'll see some of your questions that relate to copyright law here. So I'll speak for a few minutes about copyright, broadly, and Susan will take over to speak about a couple real life examples that map onto the scenarios kind of described in these last two questions.

 The question that underlines each of these three is what copyright? Essentially copyright is a bundle of different rights that restrict others from reproducing and otherwise exploiting an original work. At its core, copyright is the sole right to produce or reproduce the work, to perform the work in public, or if the work is unpublished, to publish the work and to authorize these acts. These rights pertain to the work or any substantial parts of that work. The bundle of rights can be parsed so each right can be dealt with individually. For example, you might allow someone to perform your play publicly, but you might not allow that same person to publish that play online. Copyright can also be limited temporally or geographically. So you might grant permission to use your work but only for a specific amount of time or in a specific country. Registration is not required for copyright to subsist. Original works automatically attract copyright protection, however, copyright registration can also offer certain advantages especially when it comes to enforcement. So if you've created a work that you think is valuable and in demand, that others might try to copy without permission, you might want to consider registering your copyright. The works listed are the kinds of works that are protected by copyright including every original production in the literary, scientific or artistic domain, whatever may be the mode or form of its expression. Examples that are particularly relevant to the performing arts include illustrations, using set designs, scripts, choreographic works, cinematic graphic works such as a taping of a performance and always keep in mind that copyrights might overlap. For example, in a sound recording there's copyright in the performance that's captured in the recording, but also in the underlying musical work. You might also have to consider if that musical work contains a sample from another song or copies of essential part of the lyrics from another song. So there might be multiple copyrights in a single piece of music. All work must be original to attract copyright protection. So it must be the product of an author's skill and judgment. Ownership. So generally the first owner of a copyright is the author or authors of a work, or the performer in the case of performance, or the maker in the case of a sound recording. The exceptions are here. So work made in the course of employment, typically first ... the employer or where ownership has been granted to another entity in the form of an assignment or licence if the course no longer belongs to the author. In the course of employment does not cover independent contractors so when using independent contractors you should consider drafting contracts that set out ownership in advance. Think about who will own copyright before creating the work. It's quite messy to sort out after the fact. Often, especially if different people claim ownership or if different people were involved in various aspects of the creation of the work. I'll mention, briefly because we're fighting against time, that there are some limited exceptions to copyright in which a copyrighted work can be used fairly. So without committing copyright infringement. These exceptions include fair dealing for the purpose of education, parity, satire, criticism, news reporting and non-commercial user generated contents. Now I'll hand it over to Susan to speak about some real life examples.

Susan:  Thanks, Alexis. Well, copyright 101 in 4 minutes. You did it. Sorry if that was a lot of information and maybe by applying it to real life, with these case studies, you might be able to understand a bit more putting into practice what Alexis was telling you. Alexis, next slide.

 So, a lot of you have been trying to find ways of connecting with your audience. Here are a couple of examples. The Edmonton Opera posted footage of past performances on its website and the TSO came up with a coming together of individuals performing, edited together, to perform a piece of music around Copland's Appalachian Spring, which was beautiful. I'm sure many of you heard it. In these cases we're not talking about live streaming today. These are about recordings that either existed previously or were made specifically for online content during the pandemic. The first thing, and most important thing that I need to convey, is that the fact that you possess a tape, whether that's a file, a digital file or whatever the form it takes, does not equate with ownership of copyright. So just because you have it in your possession doesn't mean you own it or that you can do anything with it. Frankly, even ownership of copyright does not necessarily equate with your right to use it in any way that you want to. So step one is to figure out who owns the recording or the rights in the recording. In other words, the copyright in the recording. Alexis alluded to the fact that in the case of a recording it's typically the maker. That's a word used in the Copyright Act and it means the person who makes the arrangements to tape. If somebody's bootlegging a concert and they press tape on their cassette records, sorry to use an 80's example, they're the maker. Even if they were unauthorized to do so. So they would be the owner of the copyright and the recording although, clearly, would not have many of the rights they would need to actually exploit that recording. But similarly, even without a bootleg, you may have made a recording of a performance and therefore would the be the owner, but that doesn't mean that you necessarily can exploit it in ways that were not contemplated or granted to you. Step two is to determine what rights did you have in that recording? Step three is are there any underlying rights? Again, Alexis mentioned that there may be overlapping copyrights, and have you acquired the rights to other overlapping copyrights in order to exploit these recordings in the way that you want?

First of all, were you the maker? Do you own the copyright? That's step one because if you don't then you can't exploit it in any way. You may also want to make sure that you actually acquired rights from all the people who performed in that performance. So if they're employees, as Alexis mentioned, by operation of the statute you would be the first owner as the employer because it would be work made in the course of employment. If there were not actually technically employees you would not get that right under Canadian copyright law. US copyright law differs in this regard. So you would need to get an assignment from the people creatively contributing to that recording or that performance. You need a piece of paper actually saying that. In order to assign copyright it has to be in writing.

Let's say we determine that you actually do own the recording do you have the right to post online, to make it available to communicate by telecommunication, which is the actual technical words used in the Copyright Act, for broadcasting over the internet? Well, go back to the agreements. The agreements for a theatre piece with the owner of the theatrical production. Or other contributors like the set designers or the choreographer. Did those agreements allow you to make the recording solely for archival purposes of were you granted full rights of exploitation or something in between? You have to determine that because if you only have a copy for archival purposes, and those were the rights granted, you cannot post online for the public to see and consume. Whether or not they're paying for that right to consume it. Also, always remember there may be other overlapping or underlying rights. For example, in the case of the TSO, they performed a piece of music. If that piece of music was in copyright still and did not fall into the public domain, meaning that copyright expired, you need to go get the rights from the publisher of that music to be able to make this available online. Again, whether or not you're charging or you're making this content available for free, doesn't change that need.

And at that, at 11:59, I will wrap this up. Next slide. Thank you to my panelists, Andrew, Jahmiah, Alexis, special thanks to Alexis for helping me organize this, and to our marketing team including Rachael and Jennifer and to Shannon who did the production on this. Obviously we're very happy that you were able to attend. We recommend that if you have specific questions you seek legal advice because if there's one thing that I hope is clear from what we've been talking about today, whether it's in the employment, copyright or the force majeure context, is that everything is very fact specific to your contracts and to your fact patterns, so you may want to seek legal advice. Again, please subscribe to our news letter. That may be the way that we respond to your questions and otherwise we're constantly putting out good information and topical information that you might be interested in seeing.

Thank you for joining. That will conclude our webinar.