By Cynthia Nzuki

Introduction

“Artists do not live on thin air. And because they enrich the world with their art, they should be protected. So it is fair that those who trade in their works pay them a share of what they earn. That is the purpose of the resale right: to share all forms of enrichment.” – Ousmane Sow, Senegal.

The Copyright (Amendment) Act, 2019¹ has brought with it many changes to the old Copyright Act, no.12 of 2001. In our CIPIT Blog we continue to provide insights on the amendments and opening the discussions on the same. The Amendment has introduced the Artist Resale Right, under section 26D. Briefly, this section gives artists the right to receive monetary compensation upon resale of their artwork, in the form of royalties. In this piece, the aim is to highlight what the law provides for; the importance of this section; how the section is to be implemented and challenges likely to be faced in the implementation of this law.

Artist Resale Right (ARR)

AAR is an extension of the IPRs extended to artists. Section 2 of the Amendment Act defines resale royalty right as the right of an artist or a group of artists or successors to receive resale royalty on commercial resale of an artwork. The ARR entitles visual artists and their heirs to retain an interest in all successive commercial re-sales of their artwork and receive a portion of the selling price.²

France was the first State to enact a law providing for ARR. In 1920, concerned about the welfare of artists and their families, the French lawmakers introduced the artist’s resale right (or droit de suite) to ensure artists and their heirs received a share of the increasing commercial value of their artworks. The right’s origins date back to the experiences of the family of French painter Jean-François Millet, who initially sold his painting, The Angelus for around USD 100. Fifteen years after his death, The Angelus sold for around USD 150,000. The seller made a handsome profit but the artist’s family was destitute, prompting lawmakers to act. Subsequently in 1948, the Berne Convention through Article 14ter introduced the right to interest in a resale but it was optional for States to adopt it.³ The Convention made this right inalienable meaning inseparable with the author⁴.

Kenya’s enactment of the resale right can be interpreted as the State’s exercising their option in compliance with the Berne Convention, which it is a party.⁵ Artists, in particular, visual artists, had this right introduced to provide for equitable compensation for their work; as it initially was only an artist was to benefit once from the sales of their art pieces.

Section 26D (1) provides that the right to resale shall be valid for as long as an original work of art has copyright protection. This means the period between the time when the work was created and the end of the fiftieth (50^th) year after the artist dies⁶. After this time, the artwork becomes public property and one cannot make a claim. Section 26D (2) provides that this right is absolute, inalienable and shall not be waives under any circumstances. This means that in cases where this right is deemed to be existing, the estate of a deceased artist cannot waive it nor can it be treated as being separate from the artist. This provision is an attempt by the statute to protect the interests of an artist even after they dies especially where a deceased’s estate may be faced with the small print terms and conditions in licenses after the death of the deceased. This right is however different from moral rights under section 32 of the Copyright Act. Moral rights exist as long as the works exist with or with no copyright such that the author or their estate can claim authorship or object to distortion⁷. The right to resale on the other hand exists subject to the works having copyright and it extinguishes upon the termination of copyright period.

Section 26 (4) provides that the resale royalty shall be payable at the rate of five percent (5%) of the net sale price on the commercial resale of an artwork and the seller, the art market professional, the seller’s agent and the buyer shall be jointly and severally liable to pay the resale royalty.

Therefore; Net Sales = (Gross Sales) – (Sales returns + Discounts + Allowances)

And Royalty Rate = 5% of (Net Sales)

For example: net sales = Ksh. 50,000

Resale royalty = 5% x 50, 000

= Ksh. 2,500

It is important to remember that for this to apply the sale price of an artwork ought to be at least Ksh. 20,000⁸.

Section 26D (5) provides for the identification of artists for purposes of exercising of this right. If a mark or name belonging to or identifying a person an artist of an artwork appears an artwork, it shall be presumed in the absence of any other mark or evidence, that the person is the artist. This provision helps with dealing with fraudsters in the industry; as such it would be of great advantage for an artist to have a unique mark or signature attached to their artwork that can identify them in the absence of other means of identification.

Finally, Section 26D (6) provides a list of when resale royalty shall not be payable; this is on commercial resale of an artwork:

1. if the sale price is less than twenty thousand shillings;
2. if it concerns the resale of a building or a drawing, plan or model of a building;
3. if it is an auction for charitable purposes;
4. if the works of fine art produced are of identical copies, or
5. if it concerns a manuscript of a literary, dramatic or musical work.

Looking at the enforceability of this right outside of Kenya, the optional nature of the right and its fragmented international application means artists only benefit from it when their works are sold in countries where the right exists or where reciprocal artist’s resale right arrangements are in place. This means that if works are sold in major art markets that do not recognize the right, artists and their heirs may receive nothing at all. It also means that artists from those countries cannot benefit from the right in countries where it does exist.⁹ It is to the best interests of the artists to have the right applicable in all markets and countries.

Conclusion

The ARR is a positive law in the sense that it looks out for artists and enables them and their estates to make a living off their work. In Kenya, if implemented effectively, it may be a game-changer in the artist industry as it would elevate the living standards of many artists and even incentivize them to keep up with their artistry, which only leads to a better industry and its growth as well.

1 Was signed into law on the 18^th of September, 2019.

2 Anthony O’Dwyer*, ‘The Artists’ Resale Right: “The Greatest Good”?’, 3 Edinburgh Student L. Rev. 129

(2016)

3 https://www.wipo.int/wipo_magazine/en/2017/03/article_0001.html

4 Article 14ter (1) of the Berne Convention

5 Artists, however, are calling for the mandatory and universal application of the right.

6 Section 23 provides for the specific periods applicable to specific works

7 Section 32 (2) of the Copyright Act

8 Subject to Section 26 D(6)

9 https://www.wipo.int/wipo_magazine/en/2017/03/article_0001.html