Global Thinking

Artists’ bargaining power in the global art ecosystem is weak or non-existent because the vast majority operate as freelance solo practitioners and, unlike other creative artists, visual artists only occasionally collectivise to create common or shared interest groups or unions or associations to speak with a united voice to their industry bosses. If artists generate income from their practices, it derives principally from sales of a unique or limited edition artwork; buying directly from the artist is usually a collector’s best bargain.

This weakness in the bargaining power of contemporary artists was manifest and prevalent in France – especially in Paris – towards the end of the 19th century, and eventually led to France’s promulgation of the world’s first intellectual property law giving artists an automatic right to be paid a small percentage of the price of each resale of their works throughout their lifetimes and for decades after death (with income going to their estates). Almost a century later the French droit de suite law has been enacted by half the countries in the world.

In other words droit de suite –also calledthe artist’s resale right – does not operate as a globally enforceable law in the way copyright does. This absence of a level worldwide playing field has fuelled the principal objection argued by art-market professionals against the right being introduced in their market places: not in our back yard. For decades espousers of the right have argued that a level playing field would be created if all or most art-market countries enacted it. Such dissonant views have been advanced and debated in the legislatures of nearly every state that has contemplated adopting and enacting the right over the past century.

In 1948 the artist’s resale right was introduced into the Brussels Revision of the Berne Convention for the Protection of Literary and Artistic Works (an international treaty promulgated in 1886 that led to the globalisation of copyright). But this treaty provision did not oblige Berne’s signatory states to enact the right into their national laws; enactment was discretionary. However, this provision greatly influenced increasing numbers of countries to introduce the right over subsequent decades: 81 countries including the entire EU, 13 in South America, 16 in Africa, Australia, the Philippines, and the Russian Federation. Significantly, introduction of the right via legislation is currently being seriously considered in important art markets: China, USA, and Switzerland.

Impetus towards global implementation of the artist’s resale right has gained momentum very recently, driven principally by two by creative artists’ collectives: CISAC and EVA. The International Confederation of Societies of Authors and Composers (Confédération Internationale des Sociétés d’Auteurs et Compositeurs) aims to protect the rights of creators worldwide by advocating for strong legal protection of copyright and authors’ rights through a network of authors’ societies, copyright royalty collection societies, collecting societies, and performing rights organisations: 230 such bodies now operate in 120 countries, representing around 3 million creative artists who collectively received €7.8bn royalties in 2013. Although visual artists represent a minor constituency of CISAC’s membership, their interests are strongly voiced. European Visual Artists (EVA) is a body that represents the interests of 24 European collecting societies for visual creators, who in turn collectively manage authors’ rights of around 100,000 creators of works of fine art, illustration, photography, design, architecture and other visual works.

In 2014 CISAC and EVA, together with other visual arts societies, launched a global campaign to make the artists’ resale right mandatory under a new international treaty ‘thus ensuring the benefits of the right to visual artists all over the world’. CEO of France’s visual artists rights collecting society (ADAGP), Marie-Anne Ferry Fall, said at the launch: ‘The author’s resale right is absolutely vital for visual artists. It involves a payment to the artist consisting of a small percentage of the sale price whenever one of his or her works is re-sold. It is specific to this sector of creation and offsets the fact that works of visual art generate less revenue from reproduction and communication rights than other creative works. Today, the art market is global and the author’s resale right needs to be too.’ The global campaign has gained traction, and its most recent success has been widely acclaimed as heralding global introduction of the right under the auspices of the World Intellectual Property Organisation.

WIPO is the global forum for intellectual property services, policy, information and cooperation. It is a self-funding agency of the UN and has 188 member states. Its mission is ‘to lead the development of a balanced and effective international intellectual property (IP) system that enables innovation and creativity for the benefit of all.’ It currently monitors and administers 26 international treaties, including the Berne Convention of 1886 and its formal Revisions. In July 2015 the meeting of WIPO’s Standing Committee on Copyright and Related Rights (SCCR) not only discussed the visual artist’s resale right, but also agreed to include it as a formal agenda item for its official work with a view to extending the right to all regions of the world. WIPO’s significant decision was influenced by its consideration of an independent academic study commissioned by CISAC on the need for a new international treaty on the resale right.

The study was authored and presented by Sam Ricketson, a professor at Melbourne University Law School, an eminent scholar-practitioner specialising in intellectual property, a member of the Commonwealth Copyright Tribunal, and a panellist for WIPO’s dispute resolution service. Ricketson reviewed key arguments in favour of introducing a new treaty on resale royalty rights (that he dubs ‘RRR’) for visual artists, which are briefly summarised as follows.

It is unsound to argue that RRR may only benefit some visual artists, rather than all: the grant of exclusive rights provides no guarantee of reward or continuing income, but simply the prospect of receiving some share of the proceeds of the exploitation of the work if it subsequently receives public recognition and demand; RRR simply reflects the particular character of visual works of art and their form of exploitation, but it does not differ in kind from the reproduction right, which will only be of benefit to the struggling writer or composer in the event that his or her manuscript is published and captures the public’s attention. Apart from the additional revenue stream that RRR may provide to living artists and their descendants, such regimes can provide other benefits: a means of following the ownership and destinations of artists’ works and providing artists with a continuing link to their works, particularly if the growth of their professional and artistic reputation has led to an enhancement in the resale price of the same. There is now a clear imbalance in protection for visual artists globally as between RRR and non-RRR countries: this bears particularly harshly upon US and Chinese artists, who gain nothing from the resales of their works in RRR countries. Likewise, there is a shortfall for artists from RRR countries in the growing Chinese and US resale art markets: arguments of fairness here are difficult to reject.

EVA is managing CISAC’s campaign for achieving global RRR under the auspices of WIPO, and has an online petition with over 15,000 signatories to date – see http://www.resale-right.org.

© Henry Lydiate 2015

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.