On June 8^th 2012, lawyers and artists will be converging in Ottawa for the Art + Law conference, hosted by CARFAC. One of the major topics of discussion will doubtless be the recently debated Artists’ Resale Right (ARR).

To put it simply, it’s the right of an artist to profit from an appreciated value if one of her works is eventually sold by the original buyer at a later date. CARFAC and RAAV have petitioned the federal government both during the life of the now-defunct Bill C-32, and its current iteration, Bill C-11, for the inclusion of such a right.

CARFAC, in particular, is positioning the ARR as something that could have a significant effect on the economic viability of Canadian artists. It appears first on their list of 12 Actions to Improve the Socio-economic Conditions of Visual Artists, and in a December 2011 interview with the Georgia Straight, the B.C. President of CARFAC suggested that the “few thousand dollars” that could result could assist older artists who are no longer physically able to paint as a full-time job.

If the picture painted by CARFAC is accurate, then supporting an artists’ resale right looks like a no-brainer. CARFAC makes their point even more clearly by putting a number on the possible lost revenue in a May 29, 2012 front page story on their site: they suggest that from only 3 sales held withing 2 weeks of the article, Canadian artists were deprived of $75,080.

However, there are other voices in the discussion of the ARR that provide a distinctly different perspective: the Association des galeries d’art contemporain (AGAC) in November 2011, presented their position. Instead of looking at what artists would stand to gain from an ARR, the AGAC looked to the EU, and particularly the UK in presenting a case for what Canadian artists, as well as the Canadian art market as a whole, would stand to lose. The AGAC argues that most artists do not actually benefit from the ARR – 10% of artists have received 80% of the royalties collected. They also argue that the ARR is difficult to administer, and leads to “collection agencies” walking away with the majority of the royalty payment. They also point to cases that would generate an ARR, where this might not be appropriate, such as where the original buyer sells a work at a loss, or where a dealer purchases an artist’s work for a gallery with the intention of resellling it; both of these cases would generate an ARR. AGAC opposes the ARR for these reasons, but the biggest influence on their ultimate position appears to be not merely this two particular instances but the possibility that the existence and attempts at enforcement of an ARR would stifle Canadian art sales, the art market and, as a result, decrease an artist’s ability to support herself. The inclusion of the ARR in Canadian copyright law, if the AGAC is correct, could have the opposite of its intended effect; visual artists’ economic viability would be harmed, not helped.

Others are weighing in on this discussion as well. On Russell McOrmond’s blog, he points out another possible pitfall; if the resale right is framed more broadly, the right might be claimed by other producers of copyrighted content, even that content which is easily reproducible (unlike the work of the visual artists associated with CARFAC’s argument).

In looking at the statistics put forward by the AGAC, I find it difficult to conclude that an inflexible “catchall” form of the ARR would be completely beneficial; for established artists, this might be a boon (certainly in the UK, those in that 10% are likely to be thrilled with the results). On the other hand, emerging artists might want the option to waive their right – current procedure in the UK doesn’t allow for this according to the AGAC: the collection agencies mentioned above – the administrators of the ARR – take the royalty first and, if they do not locate the artist to whom it rightfully belongs, are able to keep it. It’s also important to keep in mind that this does not speak to a problem with the ARR itself, rather in its administration – a distinction that must be preserved to meaningfully examine the potential impact of this right for Canadian artists.

Hayden McGuire is a JD Candidate at the University of Saskatchewan, Faculty of Law.

Posted in Copyright, copyright reform, Ownership