IT was in the early 20th century that copyright law responded to growing public awareness of the plight of impoverished artists whose works greatly increased in value to the benefit of dealers and collectors, without any corresponding benefit to the artist. In France, a drawing by Forain published prior to World War I is said to have ignited a major campaign in the French press in favour of art resale rights. It depicted two children in rags outside an auction salesroom. One child says to the other, ?Look! They?re selling one of Papa?s paintings!? Another story often cited is that of the granddaughter of Millet who sold flowers in the street while Millet?s painting The Angelus, purchased from the artist for 1,200 francs, was resold for one million francs.
Droit de suite, which means ?resale rights in original work of art?, aims to provide visual artists with a share of revenue from sales of their work after the initial sale of that work. It has been characterised as a measure of justice for creators and as an extension of intellectual property. Resale rights allow an artist, sculptor, engraver or photographer to receive a certain percentage of the resale price when his or her work of art is sold again.
Indian miniature paintings, sculptures and other antiquities have long had a global market, but interest in the country?s modern art is far more recent. Now, a robust economy, increasingly sophistication amongst the well-off and the energetic participation of young NRIs are boosting sales of contemporary art to new highs.
Proponents of the droit offer several reasons for its adoption in India. The first draws on the ?genius in the garret? theory: great works are rarely recognised at their first sale, which leaves the artist inadequately rewarded. Each generation of resellers and buyers should therefore ?make some reparation for the insensitivity of its ancestors?. Another is that the resale of artworks involves exploitation of artists, who get no share of the profits made by sellers and intermediaries once their work actually gains wider appreciation. A royalty on resale enables the artist to share the benefits enjoyed by the vendor, dealer or auctioneer, insurer and other intermediaries in the distribution chain in a way that is broadly analogous to licensing by literary creators, composers and performers.
Advocates of ?intrinsic value? argue that the latent value of an artwork at the time of its first sale is realised only through its resale. The royalty is a mechanism through which the artist can share in this value?s realisation and thus gain an incentive for creativity.
In India, under section 53A of the Copyright Act, 1957, the creator of an original work of art has a right to royalty, but only from a secondary sale of over Rs 10,000 in price. The Indian statute requires that authors of works of painting, sculpture, drawing, manuscript, literature, drama and music should be given resale right protection, provided the author was the first owner of the rights under the Act. The rights shall cease to exist once the term of the copyright on the work expires.
However, the Berne Convention, to which India is a signatory, has not laid down any minimum price for the application of droit. The resale rights under the convention are available only for original works of art and manuscripts of writers and composers. The protection of the resale rights of artists under the Convention may be claimed by an artist or author if the legislation of the country to which he or she belongs so permits, and also to the extent permitted by the country where this protection is claimed. The Convention identifies droit de suite as one of the author?s rights under copyright, with the expectation that it can be claimed by creators and their heirs in the duration of copyright protection.
Now, artists in India have protection in terms of resale rights under the Copyright Act, but it does not provide the rates at which the royalty shall be payable to the author of the work. Nor are there any organisations to take care of payments to be made to authors. This also means that the royalty paid to authors is below what it would be if their rights were properly safeguarded. There is also the unfairness of resales in international markets that have no legislation in this regard. Under the Berne Convention, there must be protection in both the artist?s and the buyer?s country.
The prerequisite of reciprocity limits the possibility of disproportionate values between different markets and rules out the likelihood of individual markets making excessive payments to artists from other countries which do not recognise the right and which could result in imbalances in the art market.
Legislative harmonisation would mean that Indian artists could, in future, benefit from droit de suite, and any discrimination resulting from the Berne Convention would be eliminated. The harmonisation of this law would favour the economic condition of visual artists worldwide, and it would not place an unacceptable burden on the art market.
?Rodney Ryder is with FoxMandal Little. These are his personal views