May 2, 2014, during “other matters” to be discussed at the WIPO SCCR, some observers and delegates were a little surprised by the number of delegations who spoke in favor of adding “resale Rights” to the agenda of next SCCR sessions. However, some of the observers and delegates were not at all surprised having observed this week the diligent work of a CISAC representative with various key delegates.
The resale rights actually appeared at the last SCCR 26 (in December 2013) with a side event presentation. The right is mostly unknown in the US and probably not in the interest of auction houses, galleries and maybe even museums institutions or businesses not willing to part with even a small percentage of their profits for a visual artist.
But first what is a resale right?
QUOTE from the Resale rights .org website:
The resale right is a fundamental right for authors of graphic and plastic arts. It consists of a small percentage of the resale price that art market professionals pay to them at each resale of their works be it in auction or in a gallery.
The specificity of visual artists is that their primary source of income is the material selling of their original works. While auction houses and galleries make their business by taking commissions, it would be paradoxical that artists do not benefit from the profit generated by their works on the art market.
This is why the resale right, which is not applicable to first sales and therefore not on those galleries that do the work of promoting artists, was created. It also helps to restore the balance with the authors of other creative sectors (composers, screen-writers and film directors, writers, … ) whose rights of reproduction and communication to the public cannot be compared with those of visual artists.
In 2011, the EU issued a report on the impact of its Directive 2001/84/EC which came into force on 1 January 2006
The European Commission has today adopted a report on the implementation and effect of that Directive. The report finds that while there are pressures on the European art markets, no conclusive patterns can currently be established to directly attribute the loss of the EU’s share in the global market for modern and contemporary art to the harmonisation of provisions relating to the application of the resale right. The report also finds that while living artists and, more significantly, heirs of artists benefit from the application of the resale right, the management procedures for the resale right could be improved. The Commission proposes to establish a stakeholder dialogue, tasked with making recommendations for the improvement of the system of resale right collection and distribution in the EU; and to undertake a further reporting exercise with a view to delivering its results in 2014. The report is available at:
http://ec.europa.eu/internal_market/copyright/resale-right/resale-right_en.htm
Senegal made the first proposal at WIPO SCCR today:
SENEGAL: Good afternoon, Chairman. Having extended to you my congratulations on your election, I would now like to address this assembly.
Senegal would request that on the agenda of the forthcoming session of this Committee we include an item which is very important to us, and in fact, we in Senegal for many decades now have been renowned because of the great artist that is have come from Senegal, and the works of those artists are known throughout the world.
At present, Senegal actually hosts the biggest African event dealing with the visual arts, that is the Dakkar Biennial.
Now, I am saying all of this to indicate to you the fact that we are very much aware of the importance of the issues we deal with in this Committee. And for that reason, we would like, particularly in the light of the fact that Usman Sol has joined the French Academy recently, to note the importance of artistic works to us.
Nonetheless, despite the fact that there are many major artists who have contributed greatly to our culture and yet who die in poverty, who end their life in great hardship, and they, then, are living in poverty, dying in hardship, despite the fact that their works are being traded and, indeed, a great deal of money is being spent on trading those works. I, therefore, believe that copyright actually encompasses justice. It encompasses rights for artists and creators, those who are responsible for creating works. And it seems to me that we have to ensure that we can still have artists in future. And for that reason, we need to have their rights protected. And it seems to me this is not something that’s incredibly complex. It’s not extraordinarily difficult. And therefore, we would like to have an item included on the next agenda dealing with the issue of artists’ resale rights. And this is something that we would call for others to support, the inclusion of such an item on the agenda of our next meeting, because we believe that this is a very important issue, and it is still a cause of considerable injustice throughout the world, the issue of artists’ resale rights to be included on the next agenda.
The proposal then was supported by Congo who gave examples:
CONGO: Thank you, Chairman. Chairman, following on from Senegal, I would like to convey to you the greetings of Congo lease visual and other artists, and artists in Congo today feel a certain amount of concern, and they have asked us to transmit this concern to you.
Congo is party to the Berne Convention on the Protection of Literary and Artistic Works, and that means that in our national legislation, we have, indeed, included provisions on artists’ resale rights. Nonetheless, many of our visual and graphic artists, many of them working in Brazaville today within a school, see that in fact their works are being traded by art dealers, by people who run galleries and trade fairs and so on, and they are not getting the resale rights that they should enjoy. They are not able to enjoy protection of their works beyond national boundaries, and this is a very serious concern for them.
In the light of the point that has been raised, then, by Senegal, I would like to underscore that concern, and certainly, cono lese artists have two specific concerns at present. There is, for example, Nicola Tkongo, whose work, the crowd, was then used by the congoal east post on a stamp without anything being provided. He then challenged the post administration, but he, in fact, won only a modest sum of money.
Another of his colleagues, Francois Moke, who has, indeed, painted a very famous painting entitled “The Little,” has this very successful work, but he’s not able to benefit from it. He is not getting the kind of profit he should because this work is now available throughout the world, but he is not getting the rights he should, and this is because there are no international resale rights. In fact, we have seen that works can be sold through different trade fairs or auctioned without the artists getting the rights that are their due.
We, therefore, would like this issue of artists resale rights to be included on the agenda of the next session of this Committee.
I think that this is, indeed, the time and place to invite Member States of WIPO, as, indeed, Senegal has just done, to recognize this concern and to ensure that creators, wherever they may be throughout the world, are able to get the rights they should enjoy on resale of their works.
Of course France could only agree:
FRANCE: […]I would like to thank the Delegation of Senegal for the proposal they have made with reference to our future work and the idea of including the issue of artists’ resale rights on our agenda. My delegation believes it would be an excellent idea within the SCCR to start discussing this issue. This is an important part of intellectual property, artists’ resale rights, and I would, therefore, like to endorse what has been proposed by Senegal and what has been said by Congo, and I would support a proposal to add this matter to the agenda of the next session, and I am already looking forward to a discussion at the next SCCR on the issue of artists’ resale rights.
COTE D’IVOIRE: […] We would also like to endorse the proposal put forward by Senegal, one of our sister delegations, and we too would like to see the issue of artists’ resale rights be included on the agenda for the next session.
GERMANY: Thank you for giving me the floor, Mr. President. We also would like to have this issue discussed here, maybe not in the next SCCR, but in general.
Since there is a European Resale Directive http://ec.europa.eu/internal_market/copyright/resale-right/index_en.htm, the European Union was of course for once fully supportive:
EUROPEAN UNION: […]We thank the delegates of Congo — delegations of Congo and Senegal for that new suggestion of artists’ resale rights. We support to have this item of artists’ resale rights, just like any other possible new items for the future work program of the next Committee of the SCCR.
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INDIA: Artists’ resale rights is very interesting, the topic, and it’s very dear to me personally. In India, I am trying to gather some support so that artists will come together and form a copyright society. And Indian Act does respect the Article 14 which was introduced in the Berne Convention in the recent conference of Rule 1928, which takes the French law and then introduced in the Berne Convention. Thanks to the French property law, which recognizes the resale right and which is converted to the betterment of artists during the post-World War period.
Then we observe that many Indian artists’ paintings are resold for millions of dollars. Example, a couple of months back, I come to know Wassadail Cogadai. His painting was sold for more than 20 million pounds. So we don’t know how much resale right percentage as per the Indian Copyright Law it has gone to them. Many senior educators consulted me that the procedure is when asked to file an application before the Copyright Board, then only the Board will fix in the absence of any society registered in India.
It is an interesting topic, and we have to support the artists. Many artists, you know, they are not getting the resale right or royalties. Indian delegation supports the proposal to introduce this as an agenda item for discussion so that how better we can support the collection of royalties for the resale right for artists all over the world.
The problem with the Berne Convention is it only gives a kind of optional right for the member countries. And then there is a reciprocity based on that option. So we ought to move forward from that option so artists from all over the world will benefit based on future discussions on this topic.
Italy, then the Czech Republic on behalf of the CEBS group also supported future work on resale right.
However, the wave of support ended with the following US statement which in turn was supported by Japan, Switzerland and Brazil:
UNITED STATES: […] The United States would also like to thank Senegal and Congo for this proposal. We think it’s a rich and important issue to discuss. Unfortunately, we’ll need some time to consider whether to add it to the agenda for the next session. As you know, we do have a full agenda right now. We are not able to get through all the items. Again, we’d just like some time to consider it.
Venezuela expressed concerns about this last minute possible addition to the work program:
VENEZUELA: […]Chairman, I’m just receiving instructions from our capital, who could possibly oppose the rights of creators and artists? I don’t think anyone could deny them these rights. But in my country, the path to hell is paved with good intentions, and we’re talking about maturity of certain topics and preagreements, if you like. Because we’ve been working on this all week and talking about next week as well, and I think that some countries in Group B have said they support certain things, and I support them in their support, and I wonder whether this topic, if we introduce it, will be worked on in the first session because there’s so much enthusiasm from developed countries in introducing last-minute topics. And I say to you there is no problem and I agree with you, but it’s not mature, necessarily.
And I remember our discussions on people with visual disabilities, and what we said about the Caribbean, and in 2010, at the time there were proposals that weren’t even on the table and weren’t ready, if you like. And there was a delay — a four-year delay in getting these people their rights. And I like the proposal and I agree with it in principle, and I’m happy to support anything that will Ben if I have the creators and artists, and we certainly will support this. But everything has the right time, and the time may not be ripe for this, and we’ll need to discuss it further, perhaps, and ensure that there’s a preagreement for the next session.
And of course, obviously, last-minute suggestions, if this topic is going to be discussed, it needs to be done in a first section of the next session, the very first section, because as you all know, my country is not so interested in broadcasting. We need this to be decided, first of all, and we don’t want to — make sure we’ve got enough time for everything.In favor of discussing resale right but concerned that this new item could push other items off the table:
KENYA: […]We support the possible inclusion of the resale right to the future agenda, as we recognize that the visual arts may have been disadvantaged in the various ways that have been elucidated by the Distinguished Delegates who have spoken before us.
It is our humble request, however, that even as this request is considered, that Member States take caution to ensure the agendas that are currently before this Committee are not overshadowed by newly introduced topics.To be continued.