Advancements in discussing the Resale Right within WIPO

Convincing arguments are further put forward for a global Resale Right adoption

November 22nd, 2016 in News, Resale Right Africa, Resale Right America, Resale Right Asia and Australia, Resale Right Europe

WIPO’s 33rd Standing Committee on Copyright and Related Rights proved to be another valuable meeting for advocating the universal adoption of the Resale Right.  The bi-annual committee hosted Samuel Ricketson – Professor of law in the Melbourne Law School and author of the academic study on proposing an international treaty on the droit de suite/resale royalty for visual artists. The study is available in English as well as French and Spanish.

Within his presentation, Professor Ricketson focused on providing an accurate description of the Resale Right, its history, implementation as well as legal and economic justifications for a world-wide implementation. The Resale Right has its origins in France where it was introduced in 1920 after a long campaign for its recognition, focused on the unfair context where an artist could not share in the profit made by the initial purchaser who would later re-sell it at a much higher price. Almost a century later, the Resale Right is implemented in 81 countries and is now recognized in the Berne Convention in article 14ter and harmonized at European Union level.

The general implementation of the Resale Right is that the eligible authors have an inalienable right to claim a share (in case of the EU – a sliding scale from 0.25% to 4%) of the gross sales price on each public sale of their original work through an Art Market Professional. The administration of the royalties collected differs from country to country,  collective administration being the only  efficient approach on national and cross-border level.

The SCCR countries have positively received the arguments provided, both as regards countries which already implement the right, as well as those that consider its national implementation.

Within a Q & A session, the Countries in the African Group (Senegal, Nigeria, Ivory Coast) have shown strong support for the justifications provided, arguing that the right has the power to establish a permanent legal link – not just economic – between the artist and her work. The recognition of the right would be a measure of justice and The European Union has welcomed the presentation as forming a good basis for further discussion while countries which haven’t yet adopted the Resale Right (Canada, China, Malawi) have confirmed their further research in the view of introducing it. The representatives of the Canadian Copyright Institute  highlighted the benefits that can stem out of implementing the resale right. Canadian visual artists are the poorest group of artists with a majority of them earning less than 8.000 CAD per year with their art work, placing them below the poverty line. Similarly to young artists who struggle to make a name for themselves, retired artists are particularly economically vulnerable, despite their works often being circulated on the art market. The same vulnerabilities apply to indigenous communities who register a growing value of their works on the art market but who don’t reap the benefits of this trend either due to their lack of contact with the art market or their location.

Prof. Ricketson’s responded to questions from the floor that the Resale Right achieves measure of justice but can’t solve all the artists’ problems. It ensures that  young artists –who may be unaware  in their early careers – may benefit from the resale of their works at a later stage, thus alleviating the occurrence of “Artistic poverty” – present in all countries – where artists have to receive income a variety of sources (royalties or government funds).

Carola Streul, Secretary General of European Visual Artists also contributed to the debate highlighting that there were no trends in the market nor institutional developments that have proven that the resale right affects the trading of art in any negative way. Additionally, countries that don’t implement the resale right are now actively considering its adoption.

Gadi Oron, Director General of CISAC highlighted that the resale right is a modest but important source of revenue and promotes transparency on the market. Visual artists are in need of this right due to the uniqueness of their works (they cannot be copied, distributed, broadcasted) and as they face increasingly global problems they are in need of a global solution.

The SCCR approved the proposals from Senegal and Congo to consider introduction of resale right to the committee’s agenda and to hold a one-day-conference on the resale right before the 34th session of the SCCR in May 2017. This conference shall analyse the “issues raised by the RR from both legal and economic perspectives, including its potential effects on art markets”. Due to requests from the US delegation WIPO intends to commission a study on the economic effects of the right.