Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

25 November 2010

The Artist’s Resale Right

The Indian Copyright Statute contains within its scope a number of rights including the copyright bundle, two moral rights, and the usually ignored Artist’s Resale Right which is contained in Section 53A of the Copyright Act.Under this Section, certain artists or his legal heirs enjoy a ‘resale share right in original copies’ of their works provided that certain conditions are met. The original copies referred to in the title of the Section refer to an ‘original copy of a painting, sculpture or drawing, or of the original manuscript of a literary or dramatic work or musical work’, and to benefit from the right contemplated by this provision of the statute, the artist must have been the first owner of rights under Section 17 of the Act.

The artist’s resale right is comparable to Section 57 Special Rights as the artist or his legal heirs may enjoy the resale right notwithstanding any assignment of copyright in such work. This is an anomalous provision in the law, since, as a general rule, once an author assigns the copyright in his or her work (assuming that the assignment is a worldwide perpetual assignment), he would no longer enjoy a right to the economic benefits which would accrue to the assignee as a result of the sale of that work.

However, the artist’s resale right carves out an exception to this general position by stating that, during the subsistence of copyright in the work, provided that the resale price of the original copy of the work exceeds ten thousand Indian rupees, the artist or his legal heirs shall ‘have a right to share in the resale-price of such original copy or manuscript’.

The exact share which would be payable to the artist or his legal heirs would, according to the statute, be fixed by the Copyright Board whose decision would be final. The statute also empowers to Board ‘to fix different shares for different classes of work’ although it stipulates that the share may not ‘exceed ten per cent of the resale price’ in any case. Finally, according to Section 53A(3) of the Act, any dispute relating to the Artist’s Resale Right is to be ‘referred to the Copyright Board whose decision shall be final’.

The right is not a right which exists specifically in India, and, in fact, referred to as the “droit de suite” in a generic sense, it finds mention in Article 14ter of the Berne Convention as an optional right which member states could accord to artists. And although the right was incorporated into Indian copyright law vide the 1994 amendments, the Notes on Clauses appended to the Copyright (Amendment) Bill, 1992 (Bill No. 105 of 1992) explained the rationale underlying the inclusion of the Artist’s Resale Right stating:

Clause 19.– This clause seeks to insert a new section 53A giving the authors of original copies of paintings, sculptures or drawings or of the original manuscripts of literary, dramatic or musical works the right to a share in the subsequent sales of such original copies of original manuscripts, which is the right commonly known as “droit de suite” and which is contemplated optionally for member States by article 14ter of the Berne Convention. Besides promoting the interests of authors within India, this proposed provision would also have the effect of obliging those other member States of the Berne Convention which provide for droit de suite in their own laws to call the similar rights to Indian authors in respect to sales effected in their countries.

The Artist’s Resale Right makes particular sense in the context where the initial sale of the work did not garner much high sale price which could benefit the artist himself or herself, but a subsequent sale garnered a high sale price in consequence of the work having become valuable in the interim period between the first sale and the subsequent sale. In such circumstances, this right is supposed to remedy socio-economic inequities which manifested themselves in the form of the poverty of the artist and the wealth of the art dealer. However, one serious flaw in this argument is that the ride would by definition be beneficial only if the resale value was high, and, if the resale value was in fact high, it would automatically imply that the artist in question was well known and that he was not in particularly need of a percentage of the resale price of his or her work.

Also, considering that the percentage is generally not high, for the resale share to be given to the artist to be substantial, the resale price itself would have to be extremely high. This further enhances the flaw in the argument that an artist who could actually benefit from this right would have no “true” economic compulsion to exercise it.

Further, considering that the scope of the right is not limited to public sales at auction houses and the like, it is extremely unclear how this right would be enforced particularly in a country such as India which does not appear to have clear structures governing the documentation of the provenance of the work of art. As such, whether or not this right has actually been exploited in India and whether or not any artist has actually benefited from its existence in Indian copyright law is extremely unclear.

(This post is by Nandita Saikia and was first published at Indian Copyright.)

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