Resale Right – What is it?

Copyright should actually be linked to the utilisation of works. A few cents of compensation would be transferred to the author every time a person reads a book, watches a movie, or views a painting. On closer inspection, however, such a system would require total surveillance, and legislators were well advised to link licensing requirements to the communication rather than utilisation of a work.

This means that those who communicate copyrighted works to an audience have to pay royalties. Traditionally, this happens whenever a work is performed (opera, theatre, concert, cinema), reproduced and distributed (books, CDs, DVDs), or electronically transmitted (radio, television, Internet). The common feature in all of these instances is that the original, i.e. the first copy of a work, plays no commercial role.

That is not the case in the visual arts. In this field, everything revolves around the original; this is the only object of value. A poster of the Mona Lisa in your living room is not worth much, whereas the original in the Louvre is priceless. This fixation on originals means that artists normally only receive remuneration for their works one time – when they sell them. The owners of works and intermediaries, i.e. the art trade and auctioneers, are the only ones who profit from subsequent increases in value. This fact represents a disadvantage for visual artists in comparison to authors of other categories of works such as book authors or composers, as the latter receive royalties for all of the abovementioned performances, reproductions, broadcasts, and filmings (at least that is the way it should be).

This is where the resale right comes in. It "follows" a work when it changes owners and guarantees the artist a small share in the sales price. The more often a work changes owners, the more popular it will become and the more it will increase in value from sale to sale. This share for artists is fair, since increases in value are fundamentally based on the reputation that they painstakingly develop throughout their creative lives. It should not be denied though that the art trade can also make a significant contribution to an artist’s reputation. The art trade, however, already benefits from the margin, i.e. the difference between the purchase and sale price.

The resale right is a French invention. It was a topic of intense discussion as early as the late 19th century and became effective in 1920. The immediate motivation was the sale of a painting titled The Angelus by Jean-Francois Millet, which was sold for a considerable price while the artist’s family was living in bitter poverty. A deeper reason for the resale right was to support the widows and families of artists who had died in World War I.

Belgium was the next to introduce a resale right in 1921 followed by Italy in 1942, Germany in 1965, and Spain in 1987 to name just a few examples. Today, around 70 countries have incorporated a resale right into their copyright laws. The resale right is also regulated by the Berne Convention for the Protection of Literary and Artistic Works. Almost all countries have acceded to this convention, which contains fundamental rules for copyright and provides for its basic worldwide harmonisation. However, the Contracting States are not obligated to incorporate the resale right into their national legislation. For this reason, the right is applied only to the sale of works by artists who live in a country with a resale right and sales that take place in such countries (principle of reciprocity).

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