Emily Chow is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.
The Globe and Mail reported on August 7, 2022 that Innovation Minister Francois-Philippe Champagne and Heritage Minister Pablo Rodriguez are working on reforming the Copyright Act to include an artist resale right (ARR) within the scope of the act’s protections. First enacted in France in 1920, ARRs have now been adopted by over 90 countries in the world, including India, the United Kingdom, the Philippines and Australia. To understand why ARRs may come into force, it is important to assess the various arguments in support of and against this legislation.
ARRs formed part of the Liberal Party’s re-election platform in 2021, but have been central to artist rights advocacy for many years according to CARFAC – the Canadian Artists Representation / Le Front des artistes canadiens – a non-profit organization of professional visual artists. Under current Canadian law, artists such as sculptors and painters receive no profits from their works’ resale. One commonly cited example is the late Inuit artist Kenojuak Ashevak’s print titled Enchanted Owl. Hailing from Kinnigait (formerly Cape Dorset), Nunavut, Ashevak originally sold her print for $24 in 1960. In November of 2018, a limited-edition Enchanted Owl print sold for $216,000 at Waddington’s Auctioneers and Appraisals Toronto: nine thousand times the original price and breaking the record for the most expensive Canadian artist print ever sold via auction.
If ARRs existed in Canada, Ashevak’s estate would have received $10,800 for the sale of Enchanted Owl. CARFAC has been advocating for 5% of a work’s resale price to be granted to the original artist or their estate, pointing to the fact that half of Canada’s visual artists earn less than $18,000 per year. In its October 2015 policy proposition, CARFAC also highlighted the reality that many artists living in isolated northern communities live in impoverished conditions, while their work dramatically appreciates in value. In an address to a parliamentary committee in 2016, Rankin Inlet-based artist Theresie Tungilik noted that “[the] artist’s resale right will have a positive financial impact as 10% of Canada’s export is Inuit art.”
The rise of NFTs and blockchain technology – despite providing an NFT “loophole” – has also provided opportunities for artists to be compensated for the appreciation of their works. The embedding of “smart contracts” in NFT sales allows for the automatic distribution of royalties – roughly 10% – anytime a change of ownership is requested on the blockchain. Exercising control of downstream purchaser actions for traditional or non-digital artistic mediums is more complicated. Outside of moral rights, which protect the original artist’s right to be associated with the work without modification or destruction, agreements of purchase and sale generally enable the purchaser to do whatever they see fit with the work.
While organizations like CARFAC, SOCAN (Society for Composers, Authors and Music Publishers of Canada) and RAAV (Regroupement des artistes en arts visuels du Québec) are staunch supporters of the artist resale right in Canada, other groups remain hesitant. Both the Contemporary Art Galleries Association (AGAC) and Art Dealers Association of Canada (ADAC) are concerned with the proposed reforms, arguing that ARR collections would be a bureaucratic burden for small galleries, as well as raise the price of art and reduce sales. Interestingly, a study done in the UK by WIPO entitled “The Economic Implications of the Artist’s Resale Right” demonstrated that the resale right had no negative impact of the price of artworks or the competitiveness of markets. The study also found that the market continued to grow after the implementation of the resale right in 2006.
Not all Canadian galleries oppose ARRs. Jay Isaac, an artist himself who runs the Peter Estey Fine Art auction house in New Brunswick, has committed to paying the 5% ARR anyways. Isaac told Canadian Art that “as a small, artist-run business I have to say the idea of a policy is great, and the idea of a resale right becoming law is great—but sometimes I think that [lack of law] is used as an excuse not to move forward. People with money and power should really be doing this anyway.” Although no specific amendments have been presented yet, it will be interesting to see how the conversation regarding ARRs continues to develop in Canada. Most importantly, ARR discussions provide an opportunity to consider how to best support our diverse artists and creatives.
Michelle Mao’s IPilogue article on ARRs and NFT loopholes
SOCAN’s submission to the Standing Committee on Industry, Science and Technology as part of the statutory review of the Copyright Act
WIPO Magazine, “The artist’s resale right: a fair deal for visual artists” by Catherine Jewell
Inuit Art Foundation’s website