Artist Resale Rights in India

Introduction

The Indian art market has boomed in recent years. In fact, last year was considered one of the best years for the Indian art auction market. Interestingly, the collective art sales revenue in India for the financial year 2019 was reported at 880.90 crore Indian rupees. Moreover, comparing FY2020 to FY2021, there is a 57.3% jump in Indian art auction market revenue1. Much of this turnover can be attributed to the substantial increase in the resale price of the work, which is partly attributable to the artist’s growing notoriety and recognition over time, often even posthumously. For example, the works of art of the famous painter Leonardo da Vinci made as early as the 16th century were sold for 400 million US dollars in 20172.

The question then is whether the original artist, in legal terms the “author”, is entitled to any share in this substantial increase in the value of the work. The answer to this question, under Indian law, is found in Section 53A of the Indian Copyright Act 1957 (“copyright law”).

Section 53A of the Copyright Act confers such an economic right on the “authors” of original paintings, sculptures, drawings and manuscripts of a literary, dramatic and musical work. It provides that the author (or his legal heirs) of a painting, a sculpture on a drawing or the original manuscript of a literary or dramatic work or a musical work, when the author was the first holder of the rights under Section 17 of the Copyright Act shall, notwithstanding any assignment of copyright in such work, be entitled to a share of the resale price of the original copy or manuscript as set by the Copyright Board (whose power is now vested in the relevant High Court, as set out below). There is, however, a specified threshold under Section 53A for such resale right of action, namely that the resale price must exceed ten thousand Indian rupees.

Before dwelling further on this right, it is appropriate to briefly address the origin of this right.

II. Historical context

The doctrine of resale right for artists originates from the notion of resale right (“droit de suite”)DDS”) which literally means “right to follow”. The concept of DDS was first implemented in France, when French artist Jean-François Millet’s painting ‘L’Angélus’ was sold for 1,000 francs. However, at the end of the 19th century, it sold for 553,000 francs at an auction and became the most expensive painting of the time3. This sale took place in 1889, fourteen years after Millet’s death. At that time, his family lived in extreme poverty and made no profit from the resale of the painting4. Thus, in the year 1920, the artist’s resale right found its mention for the first time in French law through article L122-8 of the Intellectual Property Code5. In accordance with this law, visual artists and their successors had the right to receive a share of the resale price of their respective creation, for a fixed period. DDS draws a close parallel with the concept of moral rights in copyright6.

Subsequently, the resale right was adopted by Belgium in 1921 and Czechoslovakia in 1926. The idea of ​​a resale right for the artist appeared in international legislation as early as 1928, during the Conference of Rome. Later, in 1948, this right was formally introduced as an optional obligation under Article 14bis (now called Article 14ter)7 of the Berne Convention for the Protection of Literary and Artistic Works (“Bern Convention”) at the Brussels Conference. Nevertheless, the implementation of this right remains optional and for its effective implementation, reciprocity between countries is essential. While 185 countries are parties to the Berne Convention, not all of them have implemented the optional obligation of the artist’s resale right.

III. Indian law

India, being a signatory to the Berne Convention, amended the Copyright Act in 1994 and introduced Section 53A8 which lists the concept of artist’s resale right. Although this right has been incorporated into copyright law since the 1994 amendments, the rationale for incorporating the artists’ resale right has been made clear in the “Notes on Clauses” appended to the bill. Copyright (Amendment) 1992, which stated:

“Clause 19.-This clause is intended to insert a new Section 53A giving the authors of original copies of paintings, sculptures or drawings or of the original manuscript of literary, dramatic or musical works the right to a share in subsequent sales of this original Copies of original manuscripts, which is the right commonly known as the “droit de suite” and which is provided for on an optional basis for Member States by Article 14ter of the Berne Convention. In addition to promoting the interests of authors in India, this proposed provision would also have the effect of obliging other Berne Convention member states that provide resale right in their own rules to call similar rights of Indian authors with respect to sales made in their country “.

It is therefore obvious that under Article 53A, artists (and their legal heirs) enjoy a resale right in the original copies of the works listed therein, but this right is only available if the he artist is the first owner of the rights in the work concerned. work under Article 17 of the Copyright Act. Consequently, such a right would not be available where the work concerned was created by the artist in the course of his employment and the employer is the first owner of the copyright in the work under the Subsection (a) of Section 17 of the Copyright Act. Act, or where the work was commissioned, and the commissioner of the work is the first owner of the copyright in the work pursuant to paragraph (b) of section 17 of the Copyright Act. ‘author.

The particularity of this provision is that artists can enjoy the resale right notwithstanding any assignment of copyright in such a work. In this sense, the provision constitutes an exception to the notion of exhaustion of rights by providing that despite any assignment of rights, during the life of the copyright in the work, if the resale price of the copy original of the work exceeds ten thousand rupees, the artist will have a “right to share in the resale price of such original copy”.

Section 53A of the Copyright Act originally conferred the power to fix the “share” on the Copyright Board and the decision of the Copyright Board was final and binding on the parties. Subsequently, the powers of the said council were merged with those of the Intellectual Property Appeal Board (“IPAB”) and recently, pursuant to the Courts Reform (Streamlining and Conditions of Service) Order 2021 and with the removal of the IPAB, the power to fix the share now rests with the Commercial Courts constituted under the Commercial Courts Act 2015. This provision allows the authority to set different parts of the resale royalty on different categories of works, but provides for a ceiling of 10% of the resale price.

Interestingly, in Australia, under the Resale Rights for Visual Artists Act 2009, the royalty rate for the resale of artwork is calculated at 5% of the resale price. , this right being available when the resale price is greater than 100010 Australian dollars. This royalty may be payable through an official collection agency or, if the creator wishes, it may be paid directly to him. Similarly, the Intellectual Property Code of the Philippines grants the author a 5% share of the gross proceeds from the sale or rental of the original painting, sculpture or manuscript, after its first disposition by the creator. . In addition, in France, the share varies from 0.25% to 4% depending on the gross proceeds of the sale made by a seller or an agent, which is subject to a ceiling of 12,500 euros 11 . Therefore, different jurisdictions vary considerably in setting the maximum share of the resale royalty payable to the author.

To the knowledge of the author, neither the Copyright Board, nor the IPAB, nor the commercial courts have yet been called upon to fix the share of resale in India. It therefore remains to be seen what amount of resale share artists would be entitled to and whether there would be any differentiation created in that resale share depending on the nature of the underlying work, in India.

IV. Conclusion

The concept of DDS has been around for a hundred years now. As can be seen from the discussion above, the main reason for the introduction of DDS was to improve the economic status of visual artists. However, Indian law, despite having a resale right provision in place for over twenty years, is lacking in its effective enforcement and implementation. Based on the research undertaken by the authors of this article, we have not come across a single case in India where an artist has exercised such a right and/or where this right has been adjudicated by the relevant authority. Awareness of the existence of this right remains lamentable among artists. Further, information relating to all resales of these works is not in the public domain and to that extent artists have limited visibility into resales – contractual and other protections being built in at the time of first sale may go a long way in solving the problems. this issue. In addition, the establishment of an organization/society, as is the case for other rights under the Copyright Act, can also contribute to the effective implementation of the artists’ resale right. . It is high time that this statutory right, which so far only exists on paper, is duly implemented in the real world!

The contents of this document do not necessarily reflect the views/positions of Khaitan & Co but remain solely those of the authors. For any other questions or follow-up, please contact Khaitan & Co at [email protected].

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