PERSONAL VIEW: Simon Stokes, who has just published his updated legal guide, puts the whole issue of the Artist’s Resale Right in context.
All of us want to see the visual arts
flourish in the UK. Some visual artists such as Damien Hirst earn
fantastic sums; others, like my late stepfather, little if
Governments naturally want to support the
arts, part of the much-vaunted UK creative economy, and there is a
long-standing view that economic incentives spur artistic
creativity. If art were not bought and sold it wouldn't be created,
or at least there would be a lot less of it.
In the past, patrons of art included the
Church, aristocracy and a burgeoning middle class - now they are
more likely to be the state and private enterprise.
So perhaps it wasn't that surprising that in
2006, when the Artist's Resale Right (ARR), the controversial
copyright law that gives artists a share in the resale of their
works, was introduced into UK law, the minister then responsible,
Lord Sainsbury, justified its introduction on the basis: "The
[Artist's Resale Right Regulations 2006] ensure a just reward for
living British artists' creativity while protecting the valuable UK
art market". A very Blairite and creative economy view that
completely ignores the origins of French droit de suite upon which
ARR is ultimately modelled.
We have ARR in the UK due to a 2001 European
Union Directive, fought against by the then UK government, which
harmonised ARR law across the EU. The argument was that as the
Germans, French, Swedes and so on had it, then the British, Irish,
Austrians and Dutch had to have it too. All this ignores the point
that ARR is not a universal feature of copyright law - the vast
majority of countries in the world (including the large art markets
of China, New York and Switzerland) have not introduced it and
appear to have no intention of doing so. A more logical approach
would have been to abolish it as outdated, inefficient and
As a copyright lawyer, I can see it is the
law on digital copyright that drives the world economy, not an
arcane and historic early 20th century development the French
appear to have introduced to provide an element of social security
to struggling artists and their starving heirs after the collapse
of the state-sponsored Salon in France. It certainly wasn't
introduced to spur more new Labouresque artistic creativity.
A reciprocal arrangement exists by which the
EU Directive extends the beneficent EU ARR law to artists from
non-EU states that also have ARR. However, at present it appears no
such countries operate ARR along the European model, so they do not
qualify. A case of creating a fortress Europe if ever there was
Be that as it may, ARR is unfortunately here
to stay. In 2006 Lord Sainsbury said the government would press the
EU to give the UK a permanent "opt out" from the worst excesses of
ARR - most notably its extension to the estates of dead artists
from 2012. But there is no sign of any political support across the
EU to change the 2001 Directive to allow such an opt out despite
the British art market doing its best to keep the matter on the
agenda at European level.
So the UK art market has to work with a law
it never wanted but which is likely to remain on the statute book
for the foreseeable future. Never mind concerns about its cost of
administration, its disproportionate impact on dealers who quickly
buy and sell in succession, and (in the author's view, although the
evidence is disputed) a likely long-term shift of trade offshore or
at least increasing attempts to avoid ARR in international
There are legal issues, too, which add
uncertainty. For example, how does the law apply to international
sales (the Directive doesn't help here)? What about
artist/craftsman-designed furniture, jewellery and craft works -
are these covered? Who has the right to request information and
collect ARR if the artist or their estate have not mandated a
collecting society, now there are two main ARR collecting societies
in the UK: DACS and ACS?
In the UK artists can't collect ARR
themselves; they must do so through a collecting society.
It is not easy to obtain precise data on the
overall impact of ARR on the UK art market. Economic research tends
just to use more readily available auction house data, so combining
this with dealer data to obtain an overall picture is difficult,
but the annual royalties based on auction house data are now likely
to exceed £10m. However, we need auction house and dealer data
combined to gain a clearer picture of what they actually are.
Hopefully the two main UK collecting societies, ACS and DACS, will
co-operate to provide this information in due course.
Previous studies indicate that the majority
of the money collected goes to successful living artists and
artists' estates. Again it is hoped that in due course both
collecting societies will co-operate to publish readily
comprehensible data on these payments, the better to inform the
What this data does suggest, however, is
that ARR is only likely to generate very modest sums for younger,
less-established artists. If the government were serious about
promoting artistic creation, targeted spending of similar amounts
would surely yield better fruit and avoid all the downsides of ARR
from an art market perspective.
So ARR has good intentions behind it, but it
is a bad law. If it can't be abolished in the short term its worst
effects could at least be ameliorated by raising the threshold in
the UK at which it applies from €1000 to €3000. This is permitted
under the EU Directive and is something that many in the art market
are campaigning for.
Meanwhile, the UK Government could get off
the fence and provide some sensible guidance to the art market on a
number of contested areas and also be seen to be more supportive of
art market concerns.
• The second edition of Simon Stokes' book
Artist's Resale Right has recently been published by
the Institute of Art and Law. He is a solicitor and a partner in
Blake Lapthorn (www.bllaw.co.uk). The views in this piece are
his personal opinions and not necessarily those of his firm or of