Resale Royalty Right: A Way To Redress Imbalance In Copyright Revenue, WIPO Told 22/11/2016 by Catherine Saez, Intellectual Property Watch 1 Comment Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window)When visual artists sell their work, they usually perceive a price for that work. If it is resold at a much higher price, some countries provide for a resale right, providing artists with resale royalties. In other countries, such a right does not exist, putting visual artists in a disadvantageous situation, particularly indigenous artists, whose work can become very valuable on the international art markets. SCCR meeting listening to Sam Ricketson video presentation During last week’s meeting of the WIPO Standing Committee on Copyright and Related-Rights (SCCR), Prof. Sam Ricketson, co-director of studies, Intellectual Property Law at the University of Melbourne Law School, delivered a general presentation on the background to and current status of the resale right, on 18 November. The introduction of resale rights as a subject of discussion at the SCCR came from a proposal of Senegal and Congo. Resale right was first introduced in France (droit de suite) in 1920. It refers to royalties that visual artists, such as painters, receive on the resale of their works. According to Ricketson, who authored a 2015 study [pdf] titled, “Proposed International Treaty on droit de suite/resale royalty right for visual artists,” resale royalty right answers to issues such as when an unknown artist sells his/her work for a price, and the work is resold at a considerable profit, s/he does not get anything. Resale royalty rights allows the returning to the artist of a share in the further exploitation of his/her work, he said. Reproduction rights, by comparison, are not so valuable, he explained, and might even be insignificant. The resale royalty right is an optional obligation of the Brussels provision of 1948 of the 1886 Berne Convention for the Protection of Literary and Artistic Works. The adoption of the resale royalty right was slow to pick up but in the last 20 years it accelerated. Now 81 countries have a form of protection for resale royalty right, he said, including all members of the European Union through the 2001 EU Directive 2001/84/EC on the resale right for the benefit of the author of an original work of art. Resale Rights Important for Indigenous Artists Resale royalty rights have a particular resonance for indigenous artists in Australia, according to Ricketson, where members of indigenous communities are creators of “great works of art,” which have been exploited by collectors and galleries both in Australia and overseas. Australia enacted a resale right legislation in 2009, because the country was concerned about the exploitation of indigenous artists, he said, adding that in Australia, resale royalty rights are widely distributed, in particular among aboriginal artists. Resale royalty rights might be of interest to many other countries, in particular where there are traditional works of art involved that become valuable on the national and international art market, he said. Correcting an Imbalance There is an imbalance between the position of visual artists compared to other categories of creators, such as writers or computer programmers, who are better placed to exploit their rights of reproduction, adaptation and communication, said Ricketson, adding that surveys have shown that visual artists have an average lower income than other categories of artists. Visual artists should be able to receive a share in the continued exploitation of his or her work, occurring through resale, he said. Beyond providing an additional revenue stream, resale royalty rights also provide living artists the opportunity to follow the ownership and destination of their works as they move through the market place, he said. As artists’ reputation grow, the resale rights of their works increase, he added. One important aspects of royalty resale rights, he said, is that they are inalienable, he said. According to Ricketson, Article 14ter of the Berne Convention (“Droit de suite” in Works of Art and Manuscripts), could serve as a starting point for discussions on the resale right. Resale royalty right legislations adopted by countries are very diverse, he said. According to his survey of national laws, he said the modes of collection with the most effective implementation have been done so through collective administration. However, he said, all visual artists would benefit from the adoption of more uniform and comprehensive resale royalty rights laws in countries having adopted the Berne Convention, he added. Answering a question from Senegal about the potential negative impacts of resale royalty rights, Ricketson said this has been the subject of a lot of argument from those who are critical of this kind of right. One of their criticisms is that resale royalty rights will depress the resale market, he said. However, there is no evidence showing that adopting resale royalty rights has led to the shift of the resale market to countries where there is no resale right, he argued. China, which has no resale right legislation, is amending its copyright law and paying attention to resale right, said a Chinese delegate. Currently some major art markets such as China and the United States do not have resale right legislation. Advocates: Retired Visual Artists at Risk, Make Resale Right Universal A Canadian artist who is a member of the Canadian Copyright Institute, said in Canada, visual artists have been striving for the artist resale right for many years. Artists are poor in Canada, he said, and among them visual artists are the poorest. A number of respected artists are living well below the poverty line, he said. He underlined the situation of retired artists, whom he said are extremely economically vulnerable even though the value of their works has increased over time on the resale market. Being unable to create work, they struggle with extreme poverty, he said. He also underlined the fact that middle-men in Canada are reselling indigenous work for a much higher price. Legislation on resale right could correct this situation, he said. The International Confederation of Societies of Authors and Composers (CISAC) said resale royalty right provides a modest but important source of revenue for visual artists. The CISAC representative underlined the particular nature and characteristics of visual arts, which he said are different from other forms or art and creativity. The resale right has made a huge difference for visual artists where the right has been enacted, he said, and it is time to make this right a universal right and a mandatory, fundamental element of international law, he said. The art market is global today, he said, so are the problems faced by visual artists. Image Credits: WIPO Share this:Click to share on Twitter (Opens in new window)Click to share on LinkedIn (Opens in new window)Click to share on Facebook (Opens in new window)Click to email this to a friend (Opens in new window)Click to print (Opens in new window) Related Catherine Saez may be reached at email@example.com."Resale Royalty Right: A Way To Redress Imbalance In Copyright Revenue, WIPO Told" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.