Prepared by State Of The Arts (SOTA) 'Social Security' Reflection Group (last modified February 18, 2021)
The text presented here by the Social Security Reflection Group of State of the Arts (SOTA) is an outline for a discussion note. This discussion note will be continuously updated and will be the starting point of a collective writing process according to a specific methodology and in different stages.
The text aims to involve all the different disciplines in the arts. Examples from the visual arts are given in this text, but this will be further supplemented with examples from other disciplines. Adjustments to social security should not overlook the most precarious workers in the arts. The reforms should take into account the specificities of different disciplines and should not push any artist or art worker out of the frying pan into the fire.
The reform of social security for artists and art workers can hardly be seen 'in isolation' from other aspects that affect the socio-economic situation of the artist. There is a need for an integral approach and inter-ministerial consultation. This integrated approach to the different ministries will help determine the structure of this text.
In a number of other proposals for the reform of the 'artist status' that are currently circulating, the responsibility for precarity is sometimes wrongly placed on the artist himself. Artists should be 'responsabilised' to be more entrepreneurial. However, this does not correspond with the reality of their atypical work. It is the irregularity inherent to many disciplines that makes it difficult to translate the great diversity of artistic activities into one standard legislation. For example, in the regulations for the current 'artist status', three employment contracts (of minimum one day each) have to be proven in order to renew the status every year. According to these proposals, this 'overprotects' the beneficiaries. Therefore, they propose to drastically increase the employment contracts to be proven, to 156 days per year, or more moderately, 156 days per three years (under 'cachet' or employment contracts). But that proposal is not in line with the reality of the long, and often un(der)paid work cycles of a number of disciplines such as, for example, experimental film, visual arts or dance.
One might wonder why these circulating proposals combat precarity with even more precarity. Studies show that the net median income of visual artists, for example, is only 13,700 euros, an amount that already includes their benefits from the 'artist status'. Low annual incomes in the arts are usually not the result of not working enough, but of structurally underpaid labour in culture. Some of the new proposals that are now circulating could cause many artists to lose their protection and the only social safety net they have to make their profession possible. As long as only a fraction of the artists' work is remunerated (for example, a few days according to the collective labour agreement for a solo exhibition that has taken months or a year to complete and for which a remuneration of EUR 1,000 is not uncommon), and as long as fair remuneration for artists in relation to their actual working time is not a condition for receiving subsidies , 'penalising' adjustments to the 'artist status' cannot be accepted.
The present discussion note gives an overview of some of the known problems with the 'artist status'. For example, the difficult access for young artists and the difficult accrual of pension rights are discussed. Or, for example, the schizophrenic situation is sketched that arises because the artist has to actively look for work (outside the sector) while in the same period (autonomously or on commission) he/she carries out artistic research and develops projects/presentations for which only a fraction of the working time is paid.
The discussion note outlines several underlying or structural problems for artists and art workers. For example, instead of fair remuneration, artists are often 'rewarded' with 'visibility', 'a networking opportunity' and with the 'symbolic brand value' of the organisations that invite them. Even if these artists have access to the so-called 'artists status', these unfair labour relations persist, and the accrual of social rights is extremely difficult. These conditions make the artist very vulnerable and his/her socio-economic position precarious.
The discussion note wants to translate these underlying problems into suggestions for concrete policy changes. There is a need for regulation of labour relations in the arts (including fair remuneration for the currently un(der)paid (in)visible work of artists and art workers, fair contracts that do not pass all the risks on to the artists ) and for a restructuring of the system of grants in cultural policy, where fair remuneration should not be an option, but a condition with corresponding resources. If culture were properly endowed, and artists and art workers were paid for the actual work they do, the 'artist status' would serve only to cushion professional risks and not as a 'solution' to underpayment and underfunding.
UNESCO: "Indeed, the largest subsidy to the arts comes not from government, patrons or the private sector, but from artists themselves in the form of unpaid or underpaid labour." 1
- Intentions of the discussion note
- Brief discussion of problematic elements in a number of currently circulating proposals around the specific rules for artists
- Universal basic income for artists only
- 156 days
- 52 days
- make everything cachet
- Access young artists into social security via the Flemish Community culture budget
- lower number of days to get access to the status
- Copyright in the wage basket?
- Problems for social security employees
- Article 1 bis is not covered by a collective labour agreement
- Confusion around KVRs
- work visas
- structural underpayment of labour through underfunding of culture
- lack of implementation of collective agreements
- sharing of risks
- revenues from the distribution of work
- symbolic value
- Income from abroad
- unemployment of young artists
- the "prolongation" of the specific rules for artists
- The obligation to actively seek employment
- The obligation to apply for a job outside the arts
- Administrative problems for artists
- Monitoring the job search behavior
- lack of accrual of pension rights
- The access to the self-employed status is too expensive for many artists
- calculations are too slow
- lack of social protection
- the instability of the art market
- a fair share of the cake
- Lack of return of added value
- The future Flemish Arts Decree
- The corona crisis
- Authors' rights
- Suggestions for the social security of employees
- collective labor agreements for task-related wages ('taakloon')
- Abolish the KVR
- Work visas recognising the two different social statutes
- Enlarging the definition of work to more autonomous forms of employment
- Access to unemployment: specific rules for calculating the activation period for artists
- Access to unemployment: inclusion of other forms of professional activity
- prolonging unemployment: specific rules for artists
- Simplification of administration for artists and art workers
- adapted controls on job search behaviour for artists and art workers
- variable rates of access to the self-employed status
- faster recalculation of rates
- improved social security for the self-employed or self-employed in a secondary activity
- Accumulation of social security for the self-employed in a secondary activity
- Converging the two social security statuses .
- fair pay linked to an increase of funds in culture
- air pay linked to a better distribution of resources
- include fair pay as a condition for access to grants in the Arts Decree
- link payments for commissions to the preparatory work according to coefficients
- A broader scope to define "artistic work"
DRAFT DISCUSSION NOTE
Prepared by the State Of The Arts (SOTA) Reflection Group on Social Security (last modified February 18, 2021)
State of the Arts (SOTA) is an open platform that aims to contribute to a new imagination of the art world today. SOTA operates from the collective knowledge of independent artists and art workers, but is open to all concerned individuals and organisations who want to work towards more fair arts practices. For SOTA, real change can only occur if we listen to all kinds of people, concerns and opinions that fall outside the radar of existing representative organisations in the cultural sector. SOTA wants to enable direct involvement. SOTA assumes that the transition to more fair practices in the art world can also be a catalyst for change in wider society.
The reflection group on social security within the State of the Arts platform consists of Ronny Heiremans, Wouter Hillaert, Mathilde Maillard, Kobe Matthys, Katrien Reist and Katleen Vermeir.
1. Intentions of the discussion note
The corona crisis has painfully demonstrated that a large number of artists and art workers 2 in Belgium cannot fall back on social protection. The legislation currently acknowledges two statuses that offer this protection: that of employee (or civil servant) and that of self-employed person. But more and more artists and art workers are working with temporary and often very short employment contracts which, because they are working with different employers, offer little protection. Many of them combine jobs, often in both statutes, but because the social security system organises protection from a minimum of 50% employment in a main statute, they often mercilessly fall through the cracks.
The organisation of work has changed a lot in the past 40 years, but the legislation concerning labour and social security for artists has hardly changed at all. In 1969, a number of special rules were developed within social security for executing artists in the 'performing arts'. In 2003, a number of new special rules were added for all artists. Not only executing, but also creative artists could from now on appeal to what was somewhat unfortunate called 'the status of the artist'. This was a great improvement! At the same time, there are many shortcomings with the status, which remains unattainable for a large group of artists of all ages, both for those who do not succeed in entering an 'artist status' and for those who combine their artistic practice with an 'artist status'.
The current corona crisis, which is having a major impact on the cultural sector, created a momentum for reform. The current federal government under Prime Minister De Croo wrote the search for a sustainable reform of the social status of artists into the coalition agreement. A number of political parties have already come out with a proposal for reform. But before any radical changes are made, SOTA platform wants to come forward with a broadly supported and well-founded proposal that places the needs of artists and art workers themselves in the context of a broader vision of the issues at hand.
The reform of the 'artist status' is a politically highly complex dossier. Firstly, it is a federal matter while culture is a community matter. Secondly, it is a dossier that has an impact on labour legislation, social security, unemployment and taxes. It is therefore a dossier in which various ministries are involved. We also want to encourage inter-ministerial consultation through an integrated approach.
The reform touches on essential discussions in society: What is work? How to compensate artists for their work? Who deserves social protection? It is important not to shy away from this larger debate. Artists and art workers care about other precarious workers with irregular, temporary and hybrid activities. In the long term, there is a need for better social protection for all precarious workers, both inside and outside the arts.
This does not mean, however, that artists should not seek short-term solutions to their specific problems, which are particular to the arts. Let us not put even more pressure on the current regulations that serve as necessary protection specifically for artists. Although certainly not perfect, the specific rules for artists are the only way to cope with the risks in their profession and to carry out their activity at all, due to the structural problem of excessively low salaries.
We would regret if different disciplines (audiovisual and visual arts, music, theatre, dance, etc.) were to develop proposals for adaptations to the current artist status that would only be to their own advantage, but could be detrimental, or even lead to more precarity for other disciplines. Consultation and testing of proposals with all disciplines involved and with experts (labour legislation, social security, taxation, culture...) is necessary. Adjustments must be made with the utmost caution, and with the idea of developing a step-by-step plan to help realise the broader vision of the matter (see below).
We advocate more research into the current 'specific rules' to identify acute problems, and in a later stage a review of the already existing specific rules for artists. This review must be thorough and include a survey among the different stakeholders.
To avoid confusion, not only in the arts but also in politics and among the public, it would be better to stop using the name 'artist status'. The name 'artist status' wrongly suggests that artists are being treated specially and are receiving a favour compared to other professional groups. This so-called 'status' is, in fact, not a separate status (alongside employee and self-employed person). It is merely an exception in the unemployment regulations. The reason why it was introduced was to avoid discriminating against artists compared to other professional groups. This was because of their atypical work with very short contracts for different employers, which makes it very difficult to build up social security. It was a way of giving artists the same protection as workers in other sectors. Such regulations also exist for other professions with atypical work (fishermen, lumberjacks, seasonal workers...). From now on, it would be better to call the 'artist status': 'specific rules for artists in social security and unemployment', because that is what it is.
We also want to emphasise that artists and art workers do not want special privileges, but a recognition that their activities are atypical forms of work. Artists want the same opportunities to build up social rights as other workers. The current 'artist status' was therefore designed not to discriminate against artists compared to other professional groups.
Thus UNESCO formulated it in "Recommendations concerning the Status of the Artist" of 1980: "Try to take the necessary steps to ensure that artists enjoy the same rights as those granted to a comparable group of the working population by national and international legislation with regard to employment and living and working conditions, and ensure that (self-employed) artists, within reasonable limits, enjoy protection in the areas of income and social security."3
The SOTA Social Security Reflection Group aims first of all to improve the special rules for artists that already exist in the legislation of the various ministries concerned with social security, labour and unemployment, the self-employed, taxation and culture. To this end, we stress the importance of an integral approach through inter-ministerial consultation.
Within Kaaitheater's "How to Live & Work Now" platform, the Reflection Group linked this process of reforming the 'specific rules for artists' to a series of different preparatory meetings with both the French-speaking and Dutch-speaking stakeholders. SOTA approached both Dutch-speaking organisations such as Artiesten Coalitie, Cultuurloket, Jonge Akademie, Kunstenpunt, oKo, Voices of Dance and French-speaking organisations such as NO Culture, Conseil Dead, Balance ta Crise, Artistes Affilié.e.s, Metal, UPAC, F(s), SACD & Scam.
We also called upon a number of legal experts and people who have done academic research on social security in Belgium: Yasmine Kerbache, Anne Catherine Lacroix, Tanguy Roossen, Kristof Salomez, Julie Van Elslande, Els Van Heusden, Jens Van Lathem, Tobias Van Royen.
We assume that, together with all these partners, it should be possible to run a course which includes a broad survey of artists, both those who fall within and those who do not fall within the current 'specific rules for artists'.
Only in this way can we know the needs of what is going on in the various disciplines. A survey could be a good option, worked out and followed up by one or more partners. These partners could include an assignment for a lawyer to follow up the project closely. In this way, this reflection group wants to formulate a broadly supported and well-founded proposal to present to the government.
On Saturday 27 February 2021, SOTA will organise an online open discussion with the help of Kaaitheater. In March, the input from this discussion will be added to the discussion note and made accessible via the SOTA website, specifically in the context of the next Fair Arts Almanac 2022. The ultimate aim is to then present this discussion note to the various ministries involved.
3. Brief discussion of problematic elements in a number of currently circulating proposals around the specific rules for artists
- universal basic income only for artists
The Liberal MR party recently came up with a detailed proposal for reform. It goes in the direction of a universal basic income (UBI), but only for artists and technicians. 5 The Reflection Group analysed the MR proposal in an extensive note. 6
MR's idea is to create a kind of "artists' income" that exists under a federal Arts Ministry that - unlike the current situation - is separate from Social Affairs. By taking artists out of unemployment, it effectively disconnects them from social security, which of course includes not only unemployment but also health and disability and pensions. Most likely, this also creates the need to take out additional individual private insurance for pension, health, disability...
MR calls the beneficiaries of the current 'specific rules for artists' 'overprotected' because they only have to prove three employment contracts a year. They even label this as abuse and want the artist to behave more responsibly. Therefore, their proposal is to have the artist prove 156 days of work in a period of 36 months, or 52 days per year (see further below).
We believe that the responsibility for the precarious situation of the artist cannot be laid at the door of the artist himself. We have already discussed above that the cause lies in structural underpayment and underfinancing. While the 'specific rules for artists' are supposed to provide a safety net for the precarious situation of the artist, this proposal by MR will ironically generate even more precarity!
We also believe that if the Universal Basic Income is included in a social debate it should be made accessible to all citizens and certainly not only to artists. Artists do not want privileges, but treatment that does not discriminate them against other professions.
- 156 days
Proposals that reduce the number of days required to access the "status" but increase the number of days for "neutralisation" (annual renewal of the "status") will create more precarity and drop-out of artists if the number of days to prove is too high, even if calculated in cachet. For example, if one has to prove 156 days7 in cachet per year in order to renew the 'status', then the artist needs artistic contracts at around 10.000,- gross salary per year and many artists do not achieve this (annual artistic revenues for visual artists can be between 1500,- and 6000,- gross per year) because of the problem that the work commissioned by a cultural organisation is only remunerated for a fraction. And this applies to artists of all ages! Now only 3 employment contracts per year are needed. Having to prove 156 days amounts to a huge burden for maintaining the 'specific rules for artists'.
Proposals to prove 52 days every year (or 156 days over three years) (in cachet) do not take into account long creation periods (which certainly do not lead to better paid periods in all sectors when the work can start to circulate, the wages are just too low!) or the long periods to apply for grants or find co-producers. Risks such as an application for a grant not being approved, whereby the artist has to go through another lengthy process to write a new application, or an exhibition being cancelled without compensation, may cause the artist to fail to meet the required 52 days of artistic activity in one year. At this moment he or she loses the highest level of benefit and thus also the protection against the degressivity of the benefit, just when he/she needs a temporary safety net to bridge that period. Now, only 3 employment contracts per year are needed. Having to prove 52 days a year amounts to a substantial increase in the burden of maintaining the 'specific rules for artists'.
-Make everything cachet
The basic amount must be made higher in the case of cachet or artists will remain stuck at the poverty line for their entire career, not only because of the low cachet daily allowance, but also because the cachet rule removes a larger number of days from his/her benefit. A large number of visual artists make hardly any use of copyrights, so for them these rights are not a possible source of income to get above the poverty line.
-Access young artists into social security via the Flemish Community's culture budget
A proposal to give young artists easier access to the 'specific rules for artists' via the Flemish Community's culture budget cannot be part of a coherent proposal because it creates a dependency on an extra budget to be made available by the Flemish Community. This can quickly slide towards a specially financed status like that of the 'top sportsman'. The fact that the state would henceforth determine who the "top" artists would be, possibly endangers the autonomy of artists. It is also impossible to quantify the 'best performance' in the arts in the same way as it is in sports.
-Lower number of days to get access to unemployment
Proposals to make it easier for young artists to access the specific rules for artists by reducing the number of days they have to prove artistic employment contracts will be difficult to receive acceptation because of the assumption that, in solidarity with other professions, an equal number of days must be respected. A different strategy must therefore be adopted to facilitate access.
- Copyright in the wage basket? Copyright is not a wage but income from renting out intellectual property. By not considering them as wages, one encourages evasion of social security contributions. This is therefore a proposal that may generate problematic results.
4. The main problems grouped according to an integrated approach
Social security reforms for artists and artisans must be seen in a broader perspective. The problems are not only to be found in the regulations on social security, but also in labour, the self-employed, culture, taxation, copyright, etc. The complexity of the political structures in which these regulations for artists fit should not be underestimated. Opposing ideologies concerning artists, work and social security in the Flemish, Walloon and federal governments constitute a political risk.
1. Problems for social security of employees
- Article 1 bis is not covered by a collective labour agreement
Currently, collective labour agreements do not apply to artists working under Article 1bis. The 'visa for artists' issued by the artists' commission remains a poor way of determining who can or cannot invoke Article 1a. Nor does this visa solve the problems of poor payment. The composition of the artists' commission is also a tricky issue. Artists, technicians and peers with expertise must represent a majority in the commission in order to keep the assessment of who is an artist and what is art as open as possible in an ever-changing art landscape.
-Confusion around KVRs
The KVR (an official system of payment for small expenses) is currently used as a form of remuneration for artists and art workers. Artists who use a KVR do not build up any social rights. There is a lot of abuse and this creates a situation of underpayment and unfair competition for many artists and art workers.
- Article 1bis is not recognised for work visas for foreigners
A work visa is now granted either on the basis of a permanent employment contract or on the basis of self-employed status. Employees working under article 1a or interim SBK are currently not eligible for a work visa.
2. Problems for labour law
- Structurally underpaid labour due to underfunding of culture
One of the main underlying reasons why artists find it difficult to build up social security is underpayment. This underlying problem is structural and difficult to solve, even for those artists and art workers who operate within the existing 'specific rules for artists in social security and unemployment'.
Studies on the socio-economic position of the artist - "kunstenpocket #3" from 2019 8 and "Loont Passie" from 2016 9 show that artists in all sectors who work from project to project (only a minority are full-time or half-time employed by organisations, and within the visual arts a contract of long duration with institutions for artistic employment is non-existent) have to deal with increasingly shorter periods of remuneration, and very low wages that moreover only compensate a fraction of the real working time. As a result, artists do not accrue adequate social security cover such as pensions.
In the arts sector, there is no fair, i.e. sustainable, remuneration for artists and art workers vis-à-vis creation. Remuneration that includes the creation and production process in the calculation of a "fair remuneration" is a big exception. Because of the high motivation and passion with which the artist creates, but also because of his/her weak negotiating position, exploitation and self-exploitation (the artist invests most of his/her limited budget to make a quality work possible and a too small part in wages) still too often play a decisive role. Here, too, there is work to be done by artists themselves in order to come to fair working conditions.
An example from the study 'Does Passion Pay?' shows that the net median annual income of the visual artist in 2014 was 13,700 euros. However, this amount includes ALL income such as artistic income, teaching, but also unemployment benefits. Actual artistic incomes that are between 1500,- and 6000,- gross per year for often full-time work are a reality for many visual artists. The following example should clarify this skewed situation. The usual fee for a solo exhibition is 1000,- (total labour cost), but this often involves months or even a year of non-remunerated labour (artistic research, meetings, coming up with project proposals, planning an exhibition, producing the work, ...) which the artist has to overcome by applying for subsidies, finding co-producers, an extra job, and falling back on the 'specific rules for artists'.
The study 'Does Passion Pay?' (Kunstenpunt and others) mentions that almost every visual artist (93%) who took part in the study worked on the creation of their own work in 2014. Only one in three also received remuneration for this. 77% of visual artists exhibited in the same year. Only 30% of those who exhibited received remuneration for it. Research work, reflection and prospecting was reported as an activity by 40% of the artists. In 28% of the cases this work was remunerated. Only commissioned creations (done by 50% of artists in 2014) were more often remunerated, in 7 out of 10 cases.
Perhaps most tellingly, even for many artists working (inter)nationally, which rewards great symbolic appreciation, who are presented in quality biennials, museums and film festivals, the financial appreciation of their work does not evolve with their symbolic value. Throughout their careers, artists and art workers have to operate in economic models in which they are the weak link. This means that for many artists and art workers, the profession is structurally unsustainable, and despite the existence of a number of 'specific rules for artists', precarity and inequitable labour relations have not disappeared. 10
- Lack of the application of collective labour agreements
There is a lack of application of collective labour agreements. On the one hand, because they do not apply to Article 1bis. On the other hand, because a large part of the work is not paid for. A large part of the work of artists is 'invisible' and not remunerated. This unremunerated 'invisible' work is not 'unsolicited' work, but work in the context of a commission from an organisation (writing subsidy applications, administration, rehearsals, writing a press text, meetings about the collaboration, looking for extra co-producers, making designs, producing the work...). Unfortunately, these commissioned activities are currently not remunerated as 'work'. The 'visible' work is also only very partially remunerated. Art organisations that hire artists with very short contracts of a few days (albeit in accordance with the collective labour agreement) only to show the finished 'product', and at best only to give it a symbolic fee, do not take months or years of preparation into account and therefore do not assume their responsibilities as employers. 11 This happens partly because their own funding is too low, partly because art organisations do not give priority to the correct payment of artists, and partly because the relationship 'client/contractor' is only rarely taken literally within the sector.
- Sharing the risks
Moreover, all risks of investments (lack of funds, costs and salaries in case of cancelled exhibitions, etc.) often fall on the shoulders of the artists. In contracts, these risks are disproportionately divided between the artist and the organisation. Their work is therefore the most precarious which explains the need for a policy that places them at the centre and also concretises this in the way in which it supports the artist or makes sufficient resources available for this purpose.
Even for artists who are already entitled to 'the specific rules for artists in unemployment', the situation remains precarious, and as long as artists and art workers have to work on a project to project basis, decent compensation has not become the norm, and as long as subsidies for projects (via government or funds) do not include the actual costs of employment, little will change. It is therefore extremely important that if changes are made to the 'specific rules for artists in social security and unemployment', they take into account the current practices of underpayment.
- Income from distribution of art
It is a misconception that in all industries, after the research and development period of the work, there's a return on 'investment' once the work can be shown and circulated. As mentioned above, an average fee for a solo exhibition is 1000,- (total labour cost), regardless of the time it took to develop, produce and present the work. Organisers of film festivals usually do not offer a screening fee, and in order to participate in the film selection process, the artist must pay an entry fee. Again, the artist should welcome the 'visibility' and 'networking opportunities' for his/her work.
- Symbolic value
In stark contrast to the media's one-sided view of the 'glamorous' side of the sector, the level of remuneration for artists often does not improve with greater 'success' and the higher symbolic value of the institutions that invite them. Often the institutions see the symbolic value of their 'brand' as teh actual 'payment'. This is the attitude of most international biennials, large museums... Their symbolic value would reflect on the artist. The artist has to be content with greater 'visibility', but any financial income he/she might receive outside of these publicly funded organisations remains a highly uncertain, speculative matter.
- Income from abroad
When foreign institutions apply directly to the Flemish government for support for artists, the artists often have no influence on practices of remuneration or other effective use of this money. Unless concrete requirements are attached to this, complying with agreements on fair practices at this level is an impossible task. It is therefore also important that fair practices are in line with other movements at an international level.
- Unemployment of young artists
Artists in their start-up phase are often unable to prove the necessary working days (through artistic employment) to gain access to the 'specific rules for artists'. For this, under the age of 36, one has to prove 312 days of artistic employment in a period of 21 months (on cachet). Developing the profession of artist is very difficult if one has to finance this profession with other jobs. In the unemployment rules, there is too little understanding for the atypical situation of the artist/employee. The creation process usually takes place in a period without direct artistic employment. And even in the case of recruitment, there is usually a large discrepancy between actual working time and the salary the artist receives for it.
We see that the risks for young artists are increasing instead of decreasing. Fewer organisations focus on presenting the work of young artists. In the new decree, grants (without obligation of output) will become an exclusive instrument, to which lower amounts are allocated. The newly graduated artist has to wait for a year before being able to apply for the scholarship and cannot build up any social security with it.
What solutions can be worked out here so that, for example, the necessary number of working days can be proven more easily, possibly depending on age category. Can certain (currently non-remunerated) periods in which the artist is professionally active count as working days, for example in the context of an artist's residency, artistic research or training? Of course it would be best if artistic research, training and residencies were properly remunerated, but here too the artist has little influence on remuneration practices in residencies abroad. If there are no fees, then perhaps the New Zealand model we discuss below offers a solution?
- The 'extension' of the specific rules for artists
Proposals to prove 52 or 156 days each year do not take into account long creation periods (which certainly do not lead to better paid periods in all sectors when work can start to circulate, wages are just too low!) or the long periods to apply for grants or find co-producers. Risks such as an application for a subsidy not being granted, after which the artist has to go through another long process to make a new application, or an exhibition being cancelled without compensation, can mean that the artist who does not reach the required 52 days of artistic activity in one year, loses the highest level of benefits and thus also the protection against the degressivity of the benefit, just when he/she needs a temporary safety net to bridge that period.
- The obligation to actively seek work
Because a large part of an artistic assignment (for example the research and creation for an exhibition) is carried out without a contract during periods of 'unemployment' and at the same time there is an obligation to actively seek work during the same periods, this creates schizophrenic situations for artists.
In New Zealand, an alternative to this situation has been devised: PACE (Pathways to Arts and Cultural Employment)12 The artist who develops an artistic work that will enable him/her to receive income in the future or to develop his/her artistic practice is regarded as someone who is actively seeking work. He/she should therefore not apply for jobs outside the arts field (see below).
- The obligation to apply for a job outside the arts
Now the artist has to prove 156 days of artistic work in a period of 18 months prior to an inspection/interview with the respective employment service in order not to be obliged to apply for a job outside of the arts. This creates a lot of stress and anxiety for those interviews. As explained in the examples above, because of the structural underpayment of their work many artists do not achieve that number of days of artistic work (calculated both in 'cachet' or in working days), and this for artists of all ages.
In some cases, employers assume that artists who operate under the statute should not be paid, or should be paid little, because they already have a 'basic income'. Unfortunately, some artists also see it that way (perhaps without realising that they are not building up any social rights in this way).
**- Problems of administration for artists and art workers
Many artists are poorly received in administrations because the specific regulations for artists are not well known and therefore create extra work for the people at the counters. This applies to the administrations, such as the auxiliary fund (HVW/CAPAC) and the trade unions. There are not enough people trained for this in the administrations. As a result, there are often enormous delays in dealing with dossiers.
- Monitoring the job search behaviour of artists
Now artists have to go through a check/interview with the respective employment service regarding their active search behaviour. This creates many misunderstandings. The arts do not work on the basis of job interviews as do other professions. Seeing exhibitions and performances is a must to stay up-to-date. But this is considered a hobby. Also, many artists are not paid during the days of international travel. It is difficult to prove that on the day you are travelling through Europe on a tour, you had a valid reason for not coming to a control interview.
- Lack of accrual of pension rights
If the artist works with task wages and the calculation is done according to the 'cachet' rule, these 'cachet' days do not qualify for calculation of the pension. After all, the cachet rule is a rule that is only specific to the unemployment regulations and does not apply to other branches of social security. The pension is calculated on the basis of the number of days actually worked. It is true that there is a preservation of pension rights in the so-called 'assimilated period', i.e. the unemployed periods between contracts, but artists who from the beginning of their career have only worked with very short contracts will hardly have any pension at the end. This is an example of very difficult social security accumulation, even if the artist has access to the 'special rules for artists'. One proposal could be that cachet would count for all aspects of social security, including building up a pension. However, the daily allowance would have to be higher, otherwise one would be stuck around the poverty line throughout one's career.
3. Problems for the self-employed
Employment can be either through the status of salaried employee or, optionally, through the status of self-employed person. However, Article 1a of the NSSO Act stipulates that an artist automatically falls under the general regime of social security for employees. This clarity is there and should also be better recognised as a starting point. The Artists' Commission now determines whether artists can become self-employed. This is an option but not an obligation!
- The access to the self-employed status is not affordable for many artists
For a self-employed person (as a main occupation), a minimum contribution to social security of €2,992 on an annual basis is required (if the net taxable income is less than €14,042). This amounts to approximately €250 per month. Many artists cannot afford this because of their irregular income. They also receive little social security in return.
- Calculations are too slow
Many artists and art workers have a fluctuating income. This can have a major impact on the amount of quarterly contributions owed. However, the calculations for the contributions of self-employed people are too slow. This makes it difficult for many artists.
-Lack of social protection
Self-employed persons in main or secondary occupation cannot fall back on unemployment. For self-employed persons in a secondary occupation, no minimum contribution is payable, but social security contributions are payable from a net taxable income of €153 per year.
- Instability of the art market
Any income from an 'art market' is non-existent or very volatile for many artists. This is clearly evident in the research 'Cijferboek Kunsten 2018' by Kunstenpunt regarding Flemish artists' access to the art market. 13
The art market is a 'winner takes all' market, for it is organised around exclusivity. Attention and resources are focused on the few. The mass of structurally underpaid and underfunded artists generate, through their belief in the importance of art, a great deal of symbolic value for the market, which can therefore drive up the prices of a small number of so-called 'blue-chip' artists. Any financial income that the artist might receive in a market remains a highly uncertain, speculative matter.
4. Problems of cultural policy in Flanders
One of the other underlying reasons why artists have difficulty building up social security is the underfunding of culture.
The image of artists among some citizens and politicians is still stigmatising. Artists are said to be not sufficiently 'enterprising' and to be too dependent on subsidies. A number of studies have been carried out clarifying the precarious socio-economic situation of artists. They show that this precariousness is not the result of a lack of effort on the part of the artist; on the contrary, the problem is structural in nature. Underfunding of culture leads to poor remuneration: only a fraction of the work that the artist does on behalf of a subsidised organisation is paid.
- A fair share of the cake
The cultural sector generates 5.6% of the gross added value of Flanders, but is only supported for 1% of the total Flemish budget. 14 This is a lopsided situation in the distribution of resources. Culture is presented by a number of political parties as a cost for society, while it is precisely one of its drivers and financiers. More resources for culture are therefore more than justified!
- Lack of return of added value
Like education, art generates significant added value. Economists speak of a positive externality, which means that these sectors generate an economic and social added value for which the user does not or hardly has to pay. They have, as it were, a large multiplier effect. Their added values can be harvested in, for example, the tourism sector, urban development, real estate projects (without the artist reaping the benefits), but also in education, health care, etc.
It is not without reason that many people considered the arts essential during the corona crisis. We can therefore safely speak of a contribution to both the Gross National Product and the Gross National Happiness. The vision of art clearly needs a radical shift. Why should there not be public support for the arts when they generate so much added value?
UNESCO recommends: "Member States should make arrangements, through the close coordination of their policies relating to culture, education and employment, among others, to devise policies for the provision of assistance and material and moral support to artists, and should ensure that public opinion is informed about the justification and necessity of such policies. Member States should promote and protect the status of artists by considering artistic activities, including innovation and research, as a service to the community. "15
- The future Flemish Arts Decree
The reform of 'the specific rules for artists in unemployment and social security' falls under the Ministry of Welfare of the federal government. The Arts Decree is a community matter. Subsidised cultural institutions receive their resources from and must work according to the principles of the Flemish Arts Decree. Adjustments in the new Flemish Arts Decree are not aligned with the federal reform of the 'specific rules for artists' and this can lead to additional uncertainty regarding the socio-economic position of the artist.
In the meantime, 'fair practices' are included in the future decree, but nothing concrete has been written yet about how 'fair pay', i.e. a fair payment for artists, can be a binding condition for organisations to receive subsidies, or how their operations can be monitored in this regard. Pleas to free up more resources from the Flemish Government to make fair pay feasible for small and medium-sized organisations, which have to work with very limited support, fall on a cold stone. This is one certainty: there will be no extra resources. According to the Flemish Government, alternatives should provide a solution to this underfunding, but what these alternatives will look like and whether they will be successful is still unknown.
Fair pay for artists therefore still seems to be (far?) in the future. The 'Right is Right' charter developed by oKo goes in the right direction, but is not binding. A decent wage calculator that regulates certain minima in the ratio of assignment to remuneration, so that wages can be negotiated more correctly, is indeed being developed, but without the necessary budgets for this, artists will remain trapped in a vicious circle of underpayment. If implementing decrees make fair pay voluntary, nothing will change; if they make fair pay compulsory, but do not provide for an extra budget, then 'fair pay for the few' will be the result. Only a few can then still present their work under fair conditions.
The Vision Memorandum of Culture Minister Jan Jambon, claims that the artist is the 'cornerstone' of the policy, but the new decree takes little account of the needs of artists, which means that their precarious situation remains, their negotiating position is further weakened and they are even more at the mercy of the goodwill of art institutions.
For example, in the new decree, the so-called Bursaries (not linked to a project and with no obligation to produce) will become exclusive, a 'prize' for exceptional merit and therefore very limited in number and amount, whereas they were the only grants that could support periods of autonomous artistic research. These Bursaries could compensate the 'invisible' work of artists with a salary because of the possibility to have the Bursary managed by a legal person. In the new decree, these Bursaries, just like the Residence Bursaries, may no longer be managed by a legal person, so that the artist can no longer have them paid as a salary and thus cannot build up any social rights. In project grants, a salary is possible, but because of the obligation to create an 'output', a salary can only form a small part of the total budget, because a large chunk of the costs will be spent on realising that output.
If the Flemish government had seen the artist as a cornerstone of its policy, it would not have missed the momentum of the new Arts Decree and would have taken its responsibility, in consultation with the organisations it subsidises, to create a 'market' in which artists are fairly remunerated for their work. 16
- The corona crisis
What are the still largely unknown long-term consequences of the corona crisis and the long-term closure of culture for the arts (working internationally, accessing grants, working with audiences, accessing external funds...)? The relaunch funds for culture (partly European money) go largely to bricks and mortar (new museums and infrastructure) instead of creating jobs and grants for artists.
5. Problems of cultural policy in Federation of Brussels and Wallonia
6. Problems in taxation
- Copyright Royalties are not a form of remuneration subject to social security. In this way, payment via rights is encouraged (because it is fiscally more interesting) and you push many artists into an improper work situation in which they cannot build up any social rights through payment via copyrights.
SOTA suggests simplifying, clarifying, adapting and improving the existing rules in the existing social statutes, the workers' statute and the self-employed statute, where necessary. SOTA thinks that it is not a good idea to isolate artists working via temporary contracts in a separate, third statute. Reforms of the social security of artists and art workers must be seen in a broader perspective. The problems are not only to be found in the regulations on social security, but also in employment, self-employment, culture, taxation, copyright, etc. There is a need for an integral approach and inter-ministerial consultation.
1. Suggestions for the legislation of social security (workers)
- Collective labor agreements for task-related wages ('taakloon') For the workers' statute, we ask for a revision of article 1bis (task remuneration) (applicable when one does not work in a hierarchical relationship with an employer) and a legal link of article 1a to social security via a Collective Labour Agreement.
Currently, CLAs do not apply to artists working under Article 1a. And the 'visa for artists' issued by the Artists' Commission is a poor means of determining who can or cannot invoke Article 1a. Moreover, this visa does not solve the problems of poor payment.
Collective labour agreements can be concluded without revising labour legislation. One piste could be to work on a CLA - PC 304 for the self-employed and for 1a. This CLA could be made enforceable by Royal Decree. The relationship with the actual duration of the work would also have to be part of these agreements. PC 329 could then possibly follow quickly.
- Abolition of KVR
SOTA wants to put an end to the use of the KVR or the 'small fee scheme'. The KVR served as a measure to regulate small commissions within the field of amateur arts and thus avoid undeclared work. But the KVR is currently used as a form of remuneration for professional artists and art workers. However, artists who use a KVR do not build up any social rights. There is a lot of abuse and this now creates a situation of underpayment and unfair competition for many artists and art workers. Institutions or organisations should not use KVRs for remuneration, but do so anyway. We propose to abolish the KVR. There is already sufficient regulation to compensate volunteers, a KVR specifically for artists is not necessary.
- Work visas that recognise the two different social statutes
A work visa is now granted on the basis of either a permanent employment contract or a self-employed status. Workers who are employed via article 1a or interim SBK are currently not eligible for a visa. Yet that is how most young artists are starting out. This results in discrimination against artists who come from abroad but work in Belgium.
2. Suggestions for the labour legislation
- Enlarging the definition of work to include more autonomous forms of work
In the longer term, several 'non-subordinate' forms of labour should be given the same protection as employees. This would mean that all collective labour agreements would automatically apply to activities under Article 1bis of social security. This could eliminate many problems of underpayment. However, these adjustments to labour law should not lead to its erosion.
- Access to unemployment: specific rules for calculating the activation period for artists and art workers
Artists' access to unemployment requires revision. Many artists are currently denied access to full social protection because they do not reach the required number of working days, even through the cachet rule (Article 10 MB unemployment). This can be approached differently. Artists often receive grants that cannot (or only partly) be used as wages. Some artists now pay social contributions for decades without being protected by them. Can the principle of entitlement to social protection after two year full-time employment (minimum) be revised ? How can a strategy be found that does not discriminate against other professional groups and does not itself discriminate against artists because of their atypical and irregular work? As artists now have difficulties gathering enough contracts to comply with the specific rules, could young artists and art workers be allowed a longer entrance period of e.g. 5 years?
- Access to unemployment: inclusion of other forms of professional activity
Can other activities be counted that are currently not remunerated but are professional, such as a stay in an artistic residence, periods of artistic research or training? We are also thinking of the example from New Zealand quoted above - PACE (Pathways to Arts and Cultural Employment) - in which developing artistic work counts as a professional activity.
- Extending unemployment: the specific rules for artists
A number of the proposals mentioned above suggest that the current beneficiaries of the 'specific rules for artists' are 'overprotected' by only having to prove three working contracts and that this can be labelled as 'abuse'. It seems that the responsibility for precarity is placed with the artist himself. Having to prove 52 or 156 days a year is unattainable for so many artists that SOTA cannot accept these proposals until the following conditions are met:
- fair pay is correctly implemented and is binding
- grants in which fair pay is clearly budgeted and checked at the time of settlement are in place
If these conditions cannot be met, SOTA suggests the following alternatives:
- unpaid but professional activities may be included in the calculations of the number of working days that need to be proved (New Zealand model)
- the total number of days in cachet to be proved (determined in accordance with all sectors and disciplines) may effectively be spread over a longer reference period (at least 3 years) in order to be able to cope with the risks of the profession and the atypical way of working (so no fixed number of working days per year to be proved).
- In a survey carried out by the F(s) group, most of the participants indicate that they want to keep the current 3 contracts, the second largest group wants to go up to a maximum of 20 contracts per year [^17])
- An equivalent alternative can be put forward that protects the most vulnerable artists. According to the coalition agreement, the objective of the adjustment of the 'specific rules for artists' is to improve the vulnerable socio-economic position of artists, not to fight precarity with more precarity!
- Simplified administration for artists and art workers
Many artists are poorly monitored in administrations. Would it be possible to train specific people for this in the administrations? Can they function as a reference when artists present themselves at the counters? Can only specialised people handle their dossiers?
- Adapted Monotoring the job search behaviour for artists
Many artists have to explain with their hands and feet during monotoring interviews how work in the arts functions differently. This can lead to absurd situations. The artist is dependent on the knowledge and goodwill of the consultant. Sometimes empathy is shown, but often standard rules come in that cannot possibly be applied to artists. With all the consequences this entails. That is why we propose that only specifically trained people within the RVA, who have knowledge of how the arts field works, conduct interviews with artists. These people can also take into account the reality in which artists work, including the many moves they have to make.
3. Suggestions for Ministry of the Self-Employed (in main or secondary occupation)
- Variable rates of access to self-employed status
Many artists cannot afford this self-employed status now. Different rates could apply to small self-employed people than to large self-employed people. These variable rates could make it easier for some artists to enter the market.
- Faster recalculation of rates
Many artists and art workers have a very irregular income. This can have a major impact on the level of contributions owed. However, the calculations for the contributions of the self-employed are too slow. This makes it difficult for many artists because in periods with low acticity they have to pay too high contributions. Can there be a faster recalculation of contributions depending on income?
- Better social security for the self-employed or self-employed in a secondary occupation
Artists with self-employed status or the status 'self-employed in a complementary occupation' are also in a very weak position when they are unable to work due to circumstances (e.g. absence due to illness, care for sick children) or when assignments fall through. Building up reserves is hardly possible at the current level of income. We see the dramatic consequences of this in the Netherlands, where a perverted ZZP system leads to precarious situations.
- Accumulation of social security for the self-employed in a secondary occupation
Many artists and artisans are self-employed as a secondary occupation. Particularly people with part-time work make use of this status, but now hardly enjoy any social protection for their contributions to the self-employed status. Many self-employed people with a secondary profession are having a hard time because of this. Could the social protection provided by the combination of the two statuses be made additional in one and the same pay basket?
- Converging the two social security statuses
With the proposal of a wage basket for the accumulation of the two social statutes, SOTA sees an opportunity in the long term for the two existing social statutes to grow towards each other. For many artists, the current split does not correspond to their reality. Once the two different social statuses start to resemble each other more closely, there may in the future be a possibility to merge them into a single social security. This would allow for more mutualisation between the different sectors and professional categories, which would only make the overall social security system more sustainable.
4. Suggestions for the Ministry of Culture Flemish Community
- Fair pay linked to an increase in resources in culture
On the one hand, SOTA wants to continue to promote fair pay for artists. On the other hand, SOTA realises that as long as organisations remain underfunded and/or alternative funding is not immediately found, there will be a partial fall back on unemployment benefits. In other words, under-funded organisations assume that an artist can only be partially remunerated for the work he or she has done. And this is a vicious circle that must finally be broken by making more funds available.
- Fair pay linked to better distribution of resources
The resources of the subsidies are not distributed equally at present. Too many resources go to "over head" costs. The percentage of funds that actually reach artists contrasts sharply with the funds that go to infrastructure. This lopsided situation must be rectified as soon as possible. This will allow more resources to go to paying for artists' work.
The 'fair practice' charter JUIST IS JUIST helps to determine which remuneration is to be paid for which work. In this way, the relationship between performance/work and remuneration can be improved. But this must be made binding. And the condition for access to subsidies in the Arts Decree could be linked to the correct remuneration of artists. SOTA is therefore working hard to have collective price setting included in the decree. Artists can hardly solve this individually. Their bargaining position is too weak to stand up to the power of the 'public market' (subsidised institutions). It is also a responsibility of the Flemish government to organise its public market in such a way that all participants are fairly remunerated.
- Link payments for commissions to the preparatory work according to coefficients
An artist can only deliver a performance if the necessary preparations can also be made. For example, for teachers it is assumed that for the number of hours of the performance of teaching they need approximately the same amount of time to prepare. Such a link could also be made for performance in the arts.
- A brader scope to define 'artistic work'
SOTA believes it is important to think about what 'work' is for people who practise artistic activities and how these activities could help in the accumulation of social rights, such as periods of (autonomous) artistic research, periods of work with a grant from which one is now not allowed to pay a salary, the presence in a residency, rehearsals, development of a new work (the burden of proof cannot lie solely on grants received, as this creates an enormous dependence on the budgets that the Flemish government will make available for its cultural policy).
The intention of SOTA here is absolutely not to let artists escape the social security contributions! The artist would prefer to contribute more, if fair salaries were to become the new normal.
But the state could grant a favour to itself. It doesn't benefit anybody if a small grant is immediately halved by the payment of social security contributions in order to build up social security?
This is where the European Parliament Resolution of 7 June 2007 formulates the idea that SOTA has in mind: "Recalls that all artists are permanently engaged in their activities, which are not limited to the time taken up by their visible artistic performances or renditions; Notes in this regard that the time spent by artists on rehearsals is in all respects effective working time and that it is essential to take all such periods of activity into account when determining their career history, both during periods of unemployment and for the purposes of determining the amount of the pension."18
Activity based on work grants or residencies could also be included in the pay basket, which is under discussion.
5. Suggestions for ministry of Culture of the Federation Brussels and Wallonia
6. Suggestions for Ministry of Economy (Taxation)
- copyright Copyright is not a form of remuneration subject to social security. In this way, payment via rights is encouraged (because it is fiscally more interesting) and you push many artists into an improper work situation in which they cannot build up any social rights through payment via copyrights.
UNESCO, Culture and working conditions for artists (2019), p6. https://unesdoc.unesco.org/ark:/48223/pf0000371790 ↩
SOTA is in favour of extending the artist status to both artistic professions. Art workers are technicians, but also curators, artistic coordinators,... ↩
At the international level, UNESCO's 1980 Recommendation concerning the Status of Artists calls on member states to improve the professional, social and economic status of artists through the implementation of policies and measures related to education, social security, employment, income and tax conditions, mobility and freedom of expression. The 1980 Recommendation does not call on states to grant specific privileges to artists, but rather to grant them similar rights to any other socio-professional group whose work has specific characteristics that need to be addressed through special measures. http://portal.unesco.org/en/ev.php-URL_ID=13138&URL_DO=DO_TOPIC&URL_SECTION=201.html Furthermore, the European Parliament adopted a resolution of 7 June 2007 - European Parliament resolution of 7 June 2007 on the social status of artists (2006/2249(INI)) - on the social status of artists, highlighting the problems of social security and income for artists, as well as their often precarious employment situation. The European Parliament calls on the EU Member States to develop or implement a legal and institutional framework for creative artistic activities through the adoption or application of a number of coherent and comprehensive measures concerning contracts, social security, health insurance, direct and indirect taxation and compliance with European regulations. The European Parliament calls on the Commission to adopt a European charter on artistic creation and the conditions of participation in it, based on an initiative such as that of UNESCO, in order to reaffirm the importance of professional artistic activity and facilitate European integration. https://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2007-0236+0+DOC+XML+V0//EN ↩
Proposals by the Artists Coalition, the MR https://www.mr.be/un-nouveau-statut-dartiste-pour-liberer-la-creation/ and from ACOD, among others: https://www.cultuurkameraad.be/site/wp-content/uploads/2019/04/Voorstel-wijziging-werkloosheidswetgeving-ACOD-Cultuur.pdf ↩
Website MR https://www.mr.be/un-nouveau-statut-dartiste-pour-liberer-la-creation/ Website Centre Jean Gol https://www.cjg.be/liberons-la-creation-artistique-statut-des-artistes/ ↩
LINK to analysis of the MR proposal by SOTA ↩
Proving 156 days out of 12 months to extend the specific rules for artists comes from the idea that the artist must prove 156 days out of 18 months anyway so as not to be forced to seek additional work outside the arts. But as already mentioned, this is also unfeasible for many artists. That is why this text sees this as a problem with the current regulations that needs to be resolved. This check with the employment service does not take place literally every 12 months, and is also done in consultation with a consultant, whereby in some cases understanding is shown for the difficult situation of the artist. ↩
Convinced that government action is becoming necessary and urgent to address the troubling situation of artists in a large number of member countries, particularly with regard to human rights, economic and social conditions and their working conditions, with a view to providing artists with the equivalent conditions necessary for the development and fruition of their talents and appropriate to the role they can play in the planning and implementation of cultural policies and cultural development activities of communities and countries and in the improvement of the quality of life. UNESCO: "Recommendations concerning the Status of the Artist", 1980, p2. ↩
A counter example is the Amsterdam Veem Theater that in 2016 chose to open for only 100 days because they did not want to compromise on the working and production conditions of their artists. See: https://veem.house/EN/info. ↩
New Zealand-The Pathways to Arts and Cultural Employment (PACE) in: The Status of Artists in Europe, study by EU Parliament's committee on Culture and Education, 2006, p 92 https://www.europarl.europa.eu/RegData/etudes/etudes/join/2006/375321/IPOL-CULT_ET(2006)375321_EN.pdf ↩
Kunstenpunt's 2018 Arts Figure Book: 50% of the Flemish artists surveyed worked without a gallery in 2015 and therefore have no or little access to a market for selling work, 20% have one gallery (15% of which are not international galleries) where sales are also limited. Smaller and medium-sized galleries themselves suffer from the principle of 'the winner takes it all'.https://www.kunsten.be/publicaties/de-vlaamse-kunstmarkt-nationaal-internationaal-en-mondiaal/ ↩
Flanders DC 2016 study, see: https://www.flandersdc.be/en/magazine/the-creative-sector-in-flanders ↩
UNESCO Recommendation concerning the Status of the Artist, 1980, p4 and p6 ↩
Information on the new Arts Decree, decisions of the Council of Ministers 18 December 2020: https://beslissingenvlaamseregering.vlaanderen.be ↩
European Parliament Resolution of 7 June 2007 on the Social Status of Artists (2006/2249(INI)), article 27 and 28 ↩