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All for artists’ rights Rodney D. Ryder.

The Indian statute states that the “author of the works of painting, sculpture, drawing, manuscript, literary, dramatic and musical should be given resale right protection provided the author was the first owner of the rights under the Act. The rights shall cease to exist on the expiration of the term of copyright in the work.”

Explains Rodney D. Ryder, art and intellectual copyright lawyer, “Most Indians have a mindset that the laws are not okay or judicial processes are slow. Such generalisation is very dangerous. So far, there has been no case of resale right filed by any artists. They are not even aware that the resale right exists. Even an artist like Tyeb Mehta gave a statement in a newspaper saying ‘Kash hamare paas bhi resale right hota’.” The resale right says that each time a work of art is sold within the copyright period, the artist will get a share. And this period is computed as copyright term (time) plus 60 years after the death of the artist. “That means if the painter/sculptor/author is alive within the ‘selling period’ he gets a percentage of the resold amount, and within 60 years after his death, his family would be entitled to a percentage each time it is resold. But if the work is commissioned, then this term would only be 60 years from the time of the first resale,” says Ryder.

In India, since barely any artists were aware of it, no percentage of share has been fixed by the Copyright Board. “But in some American states, say the California Resale Right Royalty there is a flat five per cent share cut out for the artist. In 1990, the U.S. also came out with VARA – Visual Artists Rights Act. It primarily looks after the moral right of the artist. It implies that the Copyright Act has a ‘Right to Paternity’, meaning, the artist has a moral right to be acknowledged as the original creator of that work forever. To own that, they can ‘trademark’ their signature through a trademark law that we have in India.”

Interestingly, since Picasso’s descendants got it done, and they also registered his name for resale rights, roughly from his Guernica works, they can enjoy the share till 2033.

But the question is, who will follow the arbitrary resale chain that even extends beyond national boundaries. Suggests Ryder, “They should have a ‘Collecting Society’ as the Indian Music Industry (IMI) has. IMI has five to seven players which not only have a right to ‘collect’ the share but also keep track of the resale through their researchers/trackers. It polices the entire music industry in India.”

France was the first to bring the resale right law or Droit de Suite. It happened in the early 20th Century when a drawing by Louis Forain was published in France before the First World War. It depicted two children in rags outside an auction salesroom. One child says to the other, “Look! They’re selling one of Papa’s paintings!” Another story often cited is that of the granddaughter of Millet who sold flowers in the street, while Millet’s painting “The Angelus” , purchased from the artist for 1,200 francs, was re-sold for 1,000,000 francs.

“Such examples are reputed to have ignited a major campaign in the popular press in favour of the art resale right,” says Ryder.

The U.K. promulgated the resale right law in 2006, and, ironically, there was no such law in Europe before the introduction of the EC Directive implemented in 2006. Since Indian artists aren’t aware of the national legislation for the protection of resale rights, they suffer especially when their works are sold in international markets, he adds.

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