Artist resale rights are a labour issue
A number of Canadian creative-types are pushing for a new law which would allow artists to collect 5 percent of the profit made on the re-sale of their works.
While technically the provisions would be part of Canada’s copyright regime, such laws are really about the relationship of maker to object, and hence labour to the economy.
A similar scheme has been introduced elsewhere. In those jurisdictions, copyright law provides for a resale fee to be paid to an artist where the work is an original (or in some cases an artist multiple or art print), and the work is re-sold through a gallery or art auction. Private re-sales do not qualify under most European legislation, nor do sales to museums.
Interestingly, the European directive which sets resale framework for the European Union provides that the artist cannot sign away her rights to resale revenues. The directive describes it as:
an inalienable right, which cannot be waived, even in advance, to receive a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author.
Describing artist resale rights as “inalienable” may sound a bit high handed, but the provision is designed to address a practical problem: that many working artists have so little bargaining power that they can’t freely negotiate to keep the resale rights. The state — at least in the European Union directive —therefore forbids artists from signing those rights away.
There is a parallel between artist resale rights and minimum standards legislation like the Employment Standards Act and Part Three of the Canada Labour Code. The rights contained in the ESA are “inalienable” in the same way: a worker is not allowed to contract for less than the ESA minimums, and any clause in a contract which runs afoul will not be enforced by a court. One caveat, of course, is that the ESA has a long list of exceptions — occupations which are partially or totally excluded from its protection.
But at heart, the prohibition on contracting out of the ESA is animated by the same fear as the “inalienable” artist resale right — namely that unequal bargaining power would otherwise lead to many employees being pressured to sign away their rights.
Millard & Company specializes in employment law and has represented both employers and employees in many legal cases.
Illustration cc by Susan Murtaugh
