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This
page considers the application of droit de suite
(a royalty for visual artists on the resale of artworks)
in the EU, Australia and US.
It covers -
the
EU harmonisation directive
The European Union agreed
in 2001 on harmonisation of droit de suite (PDF),
with consistency in resale royalty schemes across the
EU.
The droit had been in place in several EU jurisdictions
for many years but had been strongly resisted by British
art dealers, with government support, amid claims that
increasing the cost of works sold in galleries or at auction
would cripple the local market and drive buyers offshore,
particularly to New York.
The droit is to be implemented in Britain by 2006. It
will initially only cover work by living artists, in contrast
to the rest of Europe where it covers works that are in
copyright (i.e. the intellectual property of living and
recently deceased artists). It is envisaged that the work
of dead artists will become subject to the royalty in
2011.
The royalty will be payable on a sliding scale, capped
at €12,500 (around $20,000) and falling to 0.25%
for sale prices over €500,000 (about $80,000).
It covers 'original work of art', identified as
works of graphic or plastic art such as pictures, collages,
paintings, drawings, engravings, prints, lithographs,
sculptures, tapestries, ceramics, glassware and photographs,
provided they are made by the artist himself or are
copies considered to be original works of art.
It
has been the subject of argument for around a decade,
with strong opposition from some stakeholders in the UK.
Bunny Smedley for example declared that
the
EU's harmonisation scheme will drag London down to the
sclerotic decrepitude of Paris – much to the delight
of New York, Geneva and Tokyo.
The
UK agreed to special conditions for its art market and
accordingly did not exercise its veto power (EU Directives
are based on unanimous agreement).
There is an intriguing analysis of the EU regime in Do
Resale Royalties Make Artists Better Off? An Economic
Analysis of a New EU Directive, a paper (PDF)
by Roland Kirstein & Dieter Schmidtchen published
in 2000. It is also considered in Alexander Weatherall's
2003 paper
Harmonising the Droit de Suite: a Legal and Economic
Analysis of the EC Directive and an Overview of the Recent
Literature and in Martina Supper's 2000 thesis An
Analysis of droit de suite from a Law & Economics
Perspective (PDF).
A UK perspective is provided by Clare McAndrew & Lorna
Dallas-Conte's 2002 report Implementing Droit de Suite
(artists' resale right) in England (PDF).
the
droit in EU states
There
has been significant variation between European countries
regarding royalty thresholds and ceilings, royalty rates,
complementary schemes and reliance on government or non-government
agencies.
Rates range from 2% in Belgium to 10% in Iceland. The
royalty is collected by government agencies in some countries
(eg in Belgium and Hungary). Some schemes provide for
payment to the artist/heirs; others use the royalty for
a general arts fund (eg Norway). Most base the royalty
on the resale price; the Italian scheme (apparently not
implemented) provides for a royalty from 2% to 10% of
the difference between the prices of initial sale and
first resale.
Germany's copyright legislation stipulates the right of
artists to 5% of the resale price where an original work
is resold by an art dealer or auctioneer, with artists
having a right to information (through the visual arts
copyright collecting society) about works resold by an
art dealer or auctioneer as intermediary during the previous
calendar year.
Those provisions complement the separate Künstlersozialversicherungsgesetz
- arts social insurance law - that requires buyers to
contribute 5-7% of overall payments to the federal government
for a French-style arts welfare fund. The BildKunst copyright
collecting society thus notes
almost
every financial transaction involving an original artistic
work places a financial obligation on the dealer: if
he buys directly from a living artist, he is obliged
to pay the contribution according to the social security
law; if he resells a work by an artist protected by
the copyright law he has to pay a remuneration for the
resale right.
Australia
Australia does not have a droit de suite scheme and adoption
of droit proposals in the near future appears unlikely.
Community debate has flared sporadically since arguments
were presented in the February 1989 Australian Copyright
Council (ACC)
report on The Art Resale Royalty & Its Implications
For Australia. That document was commissioned by the
Australia Council for the Arts, examining whether a resale
royalty scheme was appropriate for Australia and the shape
of such a scheme, including changes to the Copyright Act.
The report supported the droit in principle
as
a mechanism for encouraging creative endeavour by rewarding
visual artists with a share in the increasing value
of their creative product.
It recommended that
there should be informed public debate together with
an education program to confirm the proposition that
the scheme is considered important and has public support
in principle.
It
also called for examination of the best way to introduce
a scheme, in particular through the establishment of a
visual artists copyright collecting society (similar to
those for authors and composers).
It recommended amendment to the Copyright Act 1968
rather than specific legislation and suggested that the
scheme might encompass:
-
imposition of the royalty on public sales (ie at auctions
or commercial venues such as galleries)
- a
fixed percentage royalty calculated on the full sale
price above a specified threshold
- A
right operative over the full term of the copyright,
inalienable and effective in relation to sales from
the time of the legislation irrespective of the date
of creation of the work of art;
- royalty
collection and distribution operated through a visual
artists' collective rights administration body (since
established as Viscopy)
- civil
remedies available to the artists regarding non-observance
of the scheme
- coverage
of Australian citizens and residents, with foreign nationals
covered on the basis of reciprocity.
The
droit has been referred to in successive Copyright Law
Review Committee reports about potential changes to the
Copyright Act, generally on the basis that it is an interesting
idea needing full and careful consideration (ie not by
us, not now).
In the past five years it has resurfaced amid the somewhat
indifferent response to the wide-ranging Our Culture,
Our Future report
on Indigenous intellectual property issues for the Aboriginal
& Torres Strait Islander Commission (ATSIC)
and the 2002 report
by the federal government Contemporary Visual Arts &
Craft Inquiry (Myer Report).
Myer for example commented that "a substantial amount
of benefit would be enjoyed by artists", if the droit
was introduced in Australia (given estimates that royalties
on 1999-2000 sales would be around $6.75 million).
That is consistent with claims in the 2003 Australia Council
Don't Give Up Your Day Job report
that 50% of artists earn under $7,300 per year from their
art. Some economic rationalists have, of course, questioned
whether some self-identified artists can realistically
expect support for what may be a vocation rather than
an occupation.
Responses to the Myer recommendations were mixed. One
dealer lamented that
The
art market is volatile and can be fragile. The
introduction of a Resale Royalty would fail to provide
the necessary safety net of a "superannuation scheme"
and would almost certainly impact negatively on the
incomes of younger artists
Other
dealers embraced the idea, welcoming introduction of the
droit, accepting it as "inevitable"
or commenting that they independently donated a percentage
of auction sales to indigenous organisations such as the
Aboriginal Benefits Foundation (albeit presumably claiming
a tax deduction).
In 2004 the ALP proposed
a Resale Royalty Scheme, implemented through amendment
of the Copyright Act, involving a "resale right of
5 per cent payable on all acts of resale of artistic work
that take place in Australia through an art market intermediary".
The scheme would be administered by a new copyright collecting
society, apparently in tandem with the struggling Viscopy.
that is of interest, given past comments that Viscopy
has not been able to achieve sufficient scale for true
viability.
The federal government's 2004 Proposed Resale Royalty
Arrangement discussion paper (PDF)
sought public comment on various proposals. It is of particular
interest for attempts to model benefits to discrete groups
of artists, including emerging indigenous artists and
established 'modern masters'.
The paper identified objectives of an Australian droit
scheme as being to
- provide
income support for artists
- ensue
that artists share in the increased value of their work
- "enshrine
a perceived right of visual artists"
-
redress a perceived inequity between "the rights
of visual artists and other creative artists" (non-creative
artists presumably do not warrant support)
-
provide additional incentives for artists to continue
practising
- empower
artists by recognising their contribution to the economic
and cultural life of the nation.
Recent academic criticism of Australian proposals includes
Jon Stanford's 2002 Economic Analysis of the Droit
de Suite - The Artist's Resale Royalty (PDF).
in
New Zealand
New Zealand does not currently have droit de suite.
It appears to be waiting to see whether the droit
is introduced in Australia.
in the US
In
the US the droit has largely been regarded as
a curiosity, a potential exotic import like a designer
cheese or the bidet. Proposals for a droit scheme
in New York state were defeated but a similar law in California
(here)
has been in place for several years and does not appear
to have destroyed the local market.
A useful starting point is provided by two essays in Stephen
Weil's A Cabinet Of Curiosities: Inquiries Into Museums
& Their Prospects (Washington, Smithsonian Institution
Press 1996).
In 'Resale Royalties For Artists: Boon or Boondoggle'
he discusses a 1992 inquiry by the US Registrar of Copyrights,
with support from the National Endowment for the Arts.
That inquiry was mandated by the 1990 Visual Artists Rights
Act (VARA), the US federal version of Australia's Moral
Rights legislation. His 'Resale Royalty Hearing: New
York City' supplies Weil's testimony about the NY state
proposals, with a brief discussion of economic and arts
literature on droit de suite in the EU and the Californian
state resale royalty arrangements.
Monroe Price's 1968 Yale Law Journal article Government
Policy and Economic Security for Artists: The Case of
the Droit de Suite seems to have set the tone for
much US legal and economic thinking, reflected in Elliott
Alderman's 1992 paper
Resale Royalties in the United States for Fine Visual
Artists: An Alien Concept and Bernhard Berger's 2001
comment
Why Resale Rights for Artists Are a Bad Idea.
There is a more positive approach in John Solow's 1991
An Economic Analysis of the Droit de Suite (PDF).
Peter Karlen's 'The California Droit de Suite' in Copyright
World (1996) offers a view of the state legislation.
Overviews are provided by Edward Damich's Moral Rights
Protection and Resale Royalties for Visual Art in the
United States: Development & Current Status in the
1994 Cardozo Arts & Entertainment Law Journal,
Gerhard Pfennig's broader 'The Resale Right of Artists
(Droit de Suite)' in the 1997 Copyright Bulletin
and Carla Shapreau's 'The Statute with teeth like a Gummy
Bear: Droit de Suite in the US' in the April 1998 Art
& Law Supplement to The Art Newspaper.
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