[This piece has been authored by Mrigank Joshi, a student at the Jindal Global Law School.]

Introduction

A fundamental postulate of Intellectual Property Rights is due recognition and benefits to creators, innovators, and artists over tangible creations of their original ideas. The rationale behind the same is to compensate/reward people for their original contributions to the world.  Since an artist is responsible for the very conception of his painting, drawing, sculpting, or literary work, he is entitled to monetary compensation upon the artwork’s sale. The general position in intellectual property laws states that upon the assignment of the copyright by the artist over his artwork to another legal entity, the artist cannot enjoy any economic benefits attached to the artwork. However, re-sale rights exist as an exception to this rule.

As per the intellectual property regime in India, this right to monetary gains is not exhausted upon the selling of the artwork by the artist; rather, he/she is entitled to a certain amount of royalties upon every resale of the artwork. This right emanates from the personhood theory of copyright law which forms the basis of moral rights and has been accepted throughout the world. This theory prescribes that artists have inalienable rights over their artwork upon its creation. This principle finds its conception in France as the Droit De Suite principle (1920) and has been adopted by more than 80 countries throughout the world. Drawing upon the same, the ‘Artists Rights Directive’ was implemented by the European Union in 2001, which thereby declared Re-sale rights to be “unassailable and inalienable, enjoyed by the author of an original work of graphic or plastic art.” The royalty rates in this regard, cannot be less than 4% of the resale amount. In this paper, we will look at the existing provisions in India governing resale rights and critically analyze the same.

The legal framework in India

Re-sale rights find a fundamental backing in the Berne convention which even prescribes post-mortem resale rights to artists over their works. Article 14ter of the Convention states that concerning original artworks, the artists, and upon their death their heirs, “enjoy the inalienable right to an interest in any sale of the work after the first transfer by the author of the work.”[1]

India, being a member of the Berne Convention, adopted this principle as an addition to its copyright laws in 1994. In India, this right is protected under section 53A of the Copyright Act, 1957 (hereinafter referred to as the ‘Act’) which elucidates that artists and their heirs, upon the reselling of their original artwork by the owner, would be entitled to resale share rights in the original copies and manuscripts[2]. For the sake of this section, the artist must be the original author of the artwork under section 17 of the Act. A prerequisite for the availment of this right is that the resold artwork should be sold for a sum exceeding at least ten thousand rupees. The royalty percentage accrued to the artist has been capped at 10% by Section 53A. However, the final say as per the share of the artist to the resale value rests with the Copyright Board[3]. Protection of these resale rights subsists throughout the lifetime of the artist and for 60 years subsequent to his death[4]. Furthermore, resale rights rest with the original author of the artwork irrespective of any assignment of rights acting as an exception to the exhaustion of rights as is clear from the phrase “notwithstanding any assignment of copyright in such work” in Section 53A.

A complimentary provision for re-sale rights can be found in section 57 of the Copyright act which grants certain special rights to authors of copyright. This provision allows authors to claim authorship over their work even after the assignment of the copyright[5]. The author has a further claim for damages if the artwork is distorted, mutilated, or modified before the expiry of the copyright and when such changes to the artwork would be detrimental to the author’s reputation[6]. In this sense, section 57 provides precursory rights to section 53 A.

Analysis

The value of art is not constant. With changing times, certain artists gain more recognition and certain may even lose some. The value of their artwork, thus, fluctuates with time. This fluctuation is seen as an inherent part of the original artwork under resale rights. The absence of resale rights for artists creates a disparity between the value of the artwork and what the artist receives in return. There are few images as powerful as the “starving artist” by Jean-Louis Forian which portrays the inequality between an artist’s creative prestige and his economic situation in society. Leonardo Da Vinci, Amedeo Modigliani, Johannes Vermeer, and Vincent Van Gogh are the most prominent examples of artists who died in destitution. In certain situations, it was the death of these artists which sparked the world’s obsession with their work. However, due to financial recognition remained absent. The most famous example, perhaps, is the instance of Francois Miller’s painting ‘Angelus’ which sold for over a million Francs, while his daughter had to sell flowers in the streets to make a living during his lifetime. This instance may also be linked to the origination of the law of Droit De Suite thus, which was constituted as a legal principle in France to ensure that the artist having original rights over artwork is compensated fairly when the price of his artwork increases over time. Resale rights in this sense, serve as a modest attempt to provide an economic boost to artists who may be recognised and renowned in their respective fields, but not compensated accordingly.

Conclusion

The primary roadblock towards better utilisation of resale rights provisions in the Indian copyright act is the lack of knowledge and awareness about the same, especially in the artistic community in India. The Indian copyright act places the onus of distributing the necessary resale profits to the artist or his/her heirs, on the owner of the artwork at the time of sale. However, due to a lack of knowledge about the existence of resale rights, artists and their heirs often do not contest this right in court or ask for the necessary payments from the seller. A glaring example of this lack of applicability of Section 53A is the case of artist Tyeb Mehta, a part of the Indian Modern Movement, and a contemporary of renowned artists like M.F. Hussain and F.N. Souza. In 2018, nine years after his death, one of his paintings ‘Kali’, sold for over Rs. 26 crores; however, the entire sum was collected by the then owners of the painting, and no amount was delivered to the late artist’s family. The heirs of the renowned artist did not demand the application of Section 53A and thus, did not receive their statutory benefits. Hence, enlightening artists about their rights in India is essential to achieve the main object of the legislature behind Section 53A.

Within the ambit of Section 13 of the Act, the sub-category of ‘artistic works’ does not enjoy the same monetary benefits through continuity of rights. Continuity of rights refers to the rights of writers, singers, and producers to gain a financial benefit through derivate works, adaptations, licensing and broadcasting rights, etc. The general notion amongst the artistic community itself is that the only source of income for artists is through the initial sale of their paintings, sculptures, sketches, cartoons, etc. However, Section 53A of the Act does act as a further solatium. Furthermore, France and India are not the only countries to provide resale rights to artists. As of today, more than 70 countries have implemented ARR laws, including Australia, the Philippines, Russia, and even the European Union. Thus, royalties in the form of resale rights are not an untested or alien concept in legal jurisprudence throughout the world. It is upon law schools, Artists’ associations and groups, and members of the legal fraternity to ensure that existing statutory laws are utilized to their full extent and that artists and creators are well-versed in the applicability of the same.

[1] Berne convention for the protection of literary and artistic works, 1886, Article 14ter.

[2] The Copyright Act, 1957, Section 53A.

[3] The Copyright Act, 1957, Section 53A (3).

[4] The Copyright Act, 1957, Section 22.

[5] The Copyright Act, 1957, Section 57.

[6] Ibid.