The artist’s resale right: a fair deal for visual artists

Author:Catherine Jewell
Position:Communications Division, WIPO
SUMMARY

“Artists do not live on thin air.” This simple statement by the late internationally acclaimed Senegalese sculptor Ousmane Sow is a stark reminder of the importance of the resale right for visual artists around the world.

 
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Since 2014, the International Confederation of Societies of Authors and Composers (CISAC) and others have been actively campaigning to push the issue of the artist’s resale right up the international copyright agenda, calling for reform of the law so that visual artists benefit each time their work is resold.

About the artist’s resale right

Unlike novelists and musicians, visual artists such as painters and sculptors do not directly benefit from downstream payments when their works change hands in global markets and do not generate significant income from the reproduction and communication rights provided to other creators under copyright law. The artist’s resale right seeks to correct this imbalance by ensuring that artists receive a small percentage of the sale price of a work when it is resold. Just as the art market has become global, proponents argue, so the artist’s resale right should be global.

Although the right is recognized in the Berne Convention for the Protection of Literary and Artistic Works (Article 14ter), which sets minimum international copyright standards, it is optional. And while around 80 countries recognize the right, many others, including major art markets like the United States and China, do not.

Visual artists want a new treaty that makes the right mandatory, and their efforts are starting to pay off. With a mandate from WIPO’s Standing Committee on Copyright and Related Rights, WIPO hosted an international conference on the artist’s resale right in April 2017. Key actors from across the art market – artists, dealers, galleries, auction houses, academics and collective management organizations (CMOs) – exchanged views and experiences, shedding light on the various challenges associated with developing and applying resale royalty schemes that both benefit artists and support a robust and transparent global art market.

Why now?

Opening the event, WIPO Director General Francis Gurry said: “The digital environment and the globalization of markets present both vulnerabilities and opportunities, and it is appropriate that we consider how we might address the gaps that exist in connection with the artist’s resale right.”

The artist’s resale right does not always work as well as it should for artists, Mr. Gurry said, pointing to the need to support the development of CMOs in the smooth and efficient running of resale royalty schemes.

The Minister of Culture and Communication from Senegal, Mr. Mbagnick Ndiaye, noted that while the value of the African art market has increased more than a thousand-fold since 2007, the artists responsible for these works rarely enjoy any of the benefits of their commercial success.

The artist’s resale right is a question of equity, he said. It ensures that artists are fairly compensated regardless of where their work is sold and establishes a balance between artists and those who trade in their works. He said the right also allows artists to maintain a permanent link with their work, which is of the utmost importance in an era of globalization marked by increasing circulation of art works.

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