The resale right or droit de suite is the most important copyright for authors of fine art. Unlike writers and composers who have a regular income from royalties which are due whenever their works are performed or published, artists depend primarily on the selling of original works and, therefore, –without the resale right– they would be excluded to benefit from subsequent increase in value of their works. Artists and their associations together with the collecting societies for visual artists have been lobbying for decades to achieve the harmonisation of the resale right within Europe which also lead to the introduction of the right in the UK, Ireland, The Netherlands and Austria as from 1 January 2006 and its full introduction since January 2012.
In 2011 and in 2012 the European Commission and the Parliament concluded in their reports that the resale right has no negative impact on the art market.
Jointly with art market professionals and artists the EVA societies worked in a stake holder dialogue hosted by the European Commission on 22 recommendations to facilitate the national dialogue between art market professionals, artists and CMOs. EVA societies have presented detailed figures and facts of their activities.
Some art market professionals complain that sometimes they have to pay resale right twice, once when they buy a work and a second time when they sell it again, the so-called “cascade effect”. The argument goes further that this were an unintended effect of the Directive requiring an amendment and to only charge resale right on the profit margin. The stake holders treated the subject at the dialogue. Firstly, the typical kind of sale in the art market is the commissioned sale and not a two acted sale. Art market professionals enjoy contractual freedom and may decide for another sales model taking into consideration pros and cons, in particular additional costs. In any case it may be presumed that the choice of sales model is motivated by the desire to conclude business succeesful and with growing profit and without any influence by the artists.
Secondly, the arguments were only based on rough estimates and no reliable figures were communicated by the art market professionals throughout the entire dialogue. To have a clear picture there are facts and figures needed which could be cross check with declared resale right acts registered at the collective management organisations; until today they are not available.
Thirdly, the legislator of the Directive was fully aware of the possibility that art market professionals sometimes sell a work between colleagues before a sale to a collector takes place. To protect the art market professionals interests a number of limitations are included in the Directive, such as a high application threshold, a low pecentage of the full sales price, a ceiling an exception for the first resale under certain conditions.
Finally, the model to calculate the royalty based on the profit margin is a model which was already well known when the Directive was developped. It had been in place in Italy for more than 60 years and has never been applied because it is not possible to administer. Other than in tax issues, where margins are sometimes applied, the calculation of the profit margin for art sales faces huge problems. For isntance reliable documents on previous sales need to be produced and the corresponding value of a price that may date back many decades must be developped. In full knowledge of the failure in Italy and for the good reasons to avoid this mistake in the future the European legislator has opted for the model of calculation on the full sales price but with a very modest percentage between 4 and 0,25% applicable on each resale by participation of an art market professional.
If despite the lack of substantiation of the cascade effect the Institutions wish to further enquire in the matter, reliable facts of affected resales are needed which correspond to the art market professionals’ own declarations of resales made to collective management organisations.
What is key for a smooth and cost effective application of the right is the making available of all information on resale right eligible resales. EVA societies are in regular contact with the auction houses, galleries and art dealers in their constituency and work out solutions to facilitate the management for instance bulk declarations and online tools.
Due to gobalisation of the art market there are initiatives to introduce the resale right in the USA, Switzerland and in China. The right is introduced in Australia since 2009 and managed with great success by CAL.
In a round table – 23 April 2013- at the US copyright office in Washington members of EVA participated and informed about the rights’ benefit for the artists’ community. The report of December 2013 prepared by the copyright office recommends a resale right in order to provide artists with a fair share of revenues which were otherwise shared only between collectors and art market professionals.
Also in China, the worlds 3rd biggest art market the introduction of the resale right is proposed and is part of the draft copyright reform.
The Swiss Parliament is in charge to prepare a report and to work out a proposal to introduce the right.
Global Resale Right
EVA is organising the campaign for an artists resale right all over the world together with GESAC and CISAC. The campaign supports all initiatives in Third countries to the European Union. It calls the members to the Berne Convention to appy the right in all countries and to end the discriminatory treatment of authors whose works sell successfully in the international art market but receive no revenues because either the country of their origin or the country of the resale does not apply the right.
32 International artists have already testified their support for the campaign.
For more information: www.resale-right.org