 |
|
Or search all bepress web pages:
|
|
|
We welcome your feedback. Please
email your suggestions and ideas to us.
|
|
|
|
 |
|
|
|
|
|
|
 |
|
 |
|
AUTHOR:
Alexander Weatherall
TITLE:
Harmonising the Droit de Suite; a Legal and Economic Analysis of the EC Directive and an Overview of the Recent Literature
SUGGESTED CITATION:
Alexander Weatherall
(2003)
"Harmonising the Droit de Suite; a Legal and Economic Analysis of the EC Directive and an Overview of the Recent Literature",
German Working Papers in Law and Economics:
Vol. 2003:
Article 22.
http://www.bepress.com/gwp/default/vol2003/iss1/art22
|
|
|
|
|
ABSTRACT:
“the right for the author, or after his death for his heirs or other beneficiaries, to receive a
percentage of the price of a work - being usually a work in the field of the graphic and plastic
arts - when it is resold by public auction or through an agent”i
The consideration of resale rights for visual artists is of only minor importance to the global
economy as the sums of capital involved are small and a very limited class of individuals
will ever be affected by droit de suite legislation. Despite this the area has been the subject of
a disproportionately large volume of academic literature as an increasing number of serious
and respected economists have used the field to put law and economics analysis into
practice.
As there have been numerous introductory articles on the legitimacy of droit de suite
legislation, including a master thesis on his programme, I will attempt to focus on some of
the more interesting theoretical questions raised by this issue such as the role of inalienable
rights and their impact on the market. Although this paper will not be an overview, certain
areas of common ground will have to be covered first before considering the distinguishing
features of the new EC legislation. The analysis of droit de suite legislation here has to be
primarily theoretical in nature as the field lacks extensive empirical research and the
complexity of the art market makes quantitative statements difficult.
The notion of a droit de suiteii has existed since the 1920’s when it was introduced by the
French Government as extension of French copyright lawiii. The form of legislation differs
between states and is enforced with varying degrees of enthusiasm but the essential element
is that once an individual or corporation has purchased a work of art, to which the legislation
applies, then subsequent sales of the work require a certain percentage of the fee to be
reimbursed to the artist.
At present statutory provisions for an artist resale right exists in 29 jurisdictions across the
globe including Italy, Germany and the state of California. Notable absentees from this list,
where there are no such provisions, include the United States of America (at the federal
level), the United Kingdom and Switzerland. Due to problems of enforcement and high costs
it has been reported that only five countries apply droit de suite legislation in practiceiv.
Most advanced economies are signatories of the Berne Convention for the Protection of
Literary and Artistic Works that includes in Article 14 the recognition of droit de suite as an
author’s right. The provision is not mandatory however and operates under the principle of
substantive reciprocity. An author can claim a resale royalty, as provided in convention,
when in a foreign country to the same extent as home nationals but only if the author’s home
state also recognises the droit de suite.v
The principle of reciprocity came under threat after the Phil Collins case,vi even though the
actual claim did not relate to resale royalties but concerned disputed rights in performances
in Rome Convention countries. However the European Court of Justice judgement had wide
reaching repercussions as copyright and all related rights now had to be evaluated with
reference to the principle of non-discrimination on the grounds of nationality. The present
situation for EC Member states is that if they provided a resale right to domestic artists then
they also have to provide the same level of protection to artists from all other Member states,
irrespective of whether the country of the artist in question actually applied such a right. The
next major development will be the creation of a harmonised resale royalty system across the
European Union with the introduction of Directive 2001/84/EC.
I will begin the body of my thesis with background information relating to the decision by
the French Government to develop this novel legislation. The motives have never been
explicitly stated, although the circumstances of the day clearly had an influence, and it is
important here to briefly review the historical context. I follow this with an explanation of
the legitimacy of the directive and European Commission’s justifications for the need for EC
legislation in this area. I shall provide an overview of the principal features of the legislation
that they enacted paying particular attention to aspects that are more controversial and have
caused disagreements in the academic press. The second chapter concludes with a
consideration of the rights conferred on the artist and how the practical measures within the
Directive limit its applicability.
The third chapter delves deeper into the issues raised by the droit de suite beginning with
analysis of the incentives that a royalty right creates for the affected parties and whether they
facilitate efficiency and minimise transaction costs. I shall consider the significance of the
declaration that the right shall be inalienable and how this compares to the traditional rules of
transferable property rights. I will provide an overview of the leading economic literature in
this field and the applicability of law and economic theory to this aspect of the droit de suite.
A principal argument in favour of resale royalty legislation is that visual artists are under
protected in comparison to other copyright holders. Therefore I survey the rights of authors
and composers highlight the reasons that evolution of copyright has not created a ‘level
playing field’ for all creators of literary and artistic works. I conclude the chapter with a
consideration of a contractual approach to the problem rather than state enforced regulation
and assess the relative benefits and drawbacks.
The fourth chapter considers the predicted effect of the Directive on the market. I will begin
by demonstrating that the European Community was faced with a problem of Public Choice
and how this resulted in a compromise between the wishes of the various EU member states.
I will consider how the European Commission sought to appease concerns of a migration of
art sales to third countries but has resulted in a less effective instrument for the protection of
the visual artist. I will provide an overview of royalty arrangements in the primary market
and show what lessons can be learned for legislation of the secondary market. I will conclude
by demonstrating that the droit de suite is one of numerous factors that effect art sales and
how the wider picture must be taken into account.
|
|
|
|
