Copyright: Resale Rights Directive Implementation

London patent agent Richard Gallafent has alerted subscribers to Ideas 21 newsgroup IPR Talk to the draft The Artist's Resale Right Regulations 2006. The page has been up since 15 Dec and readers of this blog may remember my post of 17 Dec 2005 "Copyright: Resale Right Directive to be implemented in New Year" where I also mentioned them. Gallafent makes an interesting point in his post to IPR Talk:

"It's supposed to benefit Artists and their dependants/successors, but surely all that will now happen is that the galleries will insist on their artists never owning the paintings they hope to sell, i.e. the contract with the gallery will specify that the latter owns the canvas or whatever and the resulting work, agreeing to try and sell it against a commission to the artist of a substantial proportion of the price they get, retaining what used to be their modest commission. The work will never attract resale rights in such a case, thus relieving the Gallery of any responsibility to pay it or ensure it is paid!

Or have I (and the author of the section "What about employee created works?" in the "guide" on the PO website) got this wrong?" 

I am sure that there must be some clever point here - it does after all come from the author of a book on IPR and taxation - but I am not sure what it is. I should welcome Richard's coming onto this blog to explain. The resale right arises after the first sale which would include the sale of the canvas or other medium wouldn't it. The right is in any case like a moral right than an economic right. Looking at the directive (Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art) it seems to be a free standing right. If copyright is never to belong to the author the gallery would have to commission the work and obtain copyright under the commission contract, but that's not going to happen in every case. Furthermore, as Nottingham patent agent David Pearce observes, the rates are very stingy. Why bother to avoid them? As I said in my previous post, similar rules have subsisted in other countries including some with major art markets without too much concern.