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12 May 2016
“The droit de suite is La Boheme and Lust for Life reduced to statutory form.” – Monro Price, Government Policy and Economic Security for Artists: The Case of the Droit de Suite (1968) 77 Yale Law Journal 1333, 1335.
Droite De Suite (DDS) found its origin as a right in the 1860’s and was first adopted by France in 1920. Historically, aspiring artists would often sell their art for a low amount. With the growth of the reputation of the artist, the works would be re-sold for much higher figures in the secondary market. Successive sales would often occur after the death of the artist and no commercial benefits from these sales would be provided to the legal heirs, often leaving the heirs in a penniless state. To safeguard artists against such disparity, IP law provides for DDS, also referred to as the resale royalty right. It is a legislative instrument which enables artists to receive a percentage of the sale price whenever his or her works are re-sold subsequent to the first sale. DDS literally means the “right to follow.” It is an inalienable and personal right rather than an economic right, and subsists for the entire term of copyright over the work. The royalty paid is either fixed at a constant rate or calculated in accordance with the resale price.
With the addition of Article 14ter to the Berne Convention for the Protection of Literary and Artistic Works, 1886, the right has been incorporated into several legislations worldwide.
India, vide the Copyright Amendment Act, 1994, introduced Section 53A to the Copyright Act, 1957, which reads:
53A. Resale share right in original copies.
(1) In the case of resale for a price exceeding ten thousand rupees, of the original copy of a painting, sculpture or drawing, or of the original manuscript of a literary or dramatic work or musical work, the author of such work if he was the first owner of rights under section 17 or his legal heirs shall, notwithstanding any assignment of copyright in such work, have a right to share in the resaleprice of such original copy or manuscript in accordance with the provisions of this section, provided that such right shall cease to exist on the expiration of the term of copyright in the work.
(2) The share referred to in subsection (1) shall be such as the Copyright Board may fix and the decision of the Copyright Board in this behalf shall be final, provided that the Copyright Board may fix different shares for different classes of work; and provided further that in no case shall the share exceed ten per cent of the resale price.
(3) If any dispute arises regarding the right conferred by this section, it shall be referred to the Copyright Board whose decision shall be final.”
Under the Indian Copyright Act, 1957, the scope of “original work” is worded broadly to include an original copy of a painting, sculpture or drawing or the original manuscript of a dramatic, literary or musical work. To benefit from the right contemplated under Section 53A, the artist must have been the first owner of the work. This provision is comparable to Section 57 of the act as the artist and his or her legal heirs may enjoy the resale right notwithstanding any assignment of copyright in the work. This is an exception in law since, as a general rule, once an author assigns the copyright in his or her work, he would no longer enjoy a right to the economic benefits which would accrue to assignee as a result of the sale of the work. Currently, there are no restrictions on the applicability of this provision to auction or private sales in India.
It is evident that India possesses statutory recognition of resale royalty similar to various other jurisdictions. To assist the enforcement of this 20-oddyears- old right, the following steps may be taken:
• Formation of a Collecting Society similar to the Designs and Artists Copyright Society of the UK.
• Identification by such a Collecting Society of sellers including auction houses and dealers making sales for which royalty falls due;
• Centralised documentation and cataloguing of the identified and subsequent sales by the Collecting Society;
• The right to collect and/or distribute the royalties by the Collecting Society;
• Centralised record of the collection and distribution of royalty fees which is accessible to the public;
• A method of disposing of royalties that remain unclaimed and undistributed after other avenues have been exhausted;
• A control system which ensures all transactions and systems are transparent and accountable.
If these steps are initiated relying on international practices, the right to resale royalty may be sought to be enforced through the creation of a collecting society. The recognition of this right may be further strengthened through statutory law and judicial pronouncement(s). However, the most pertinent issue to be addressed for the effective enforcement of this right would be increasing awareness of the existence of such legislation and the right it provides to artists in India. It is only when artists are aware of such economic incentives that they will come together to protect their “creative works”. It is important for the artist community and the legal fraternity to share and commit themselves to a common vision for the effective regulation and preservation of the world of arts.
