The Artist's Resale Right: The Derogation for Deceased Artists

The UK Intellectual Property Office consultation to assess the likely impact of Artist's Resale Right and the derogation for deceased artists on the UK art market closed on 29 September after a week’s extension to accommodate late responses.

The consultation sought views on whether to maintain the existing derogation, which applies to works by a living artist for a further two years until 1 January 2012, or to allow the derogation to lapse. If the derogation is allowed to lapse works by deceased artists which are still in copyright will become eligible for resale right.

There were some 400 responses to the consultation from a wide variety of interests. Ian Fletcher, Chief Executive to the UK Intellectual Property Office said:

"I am delighted that we have received such a large number of responses to this consultation. I would like to thank everyone who has taken the time to respond and assure them that we will consider the responses carefully."

The UK Intellectual Property Office has done some initial analysis and around 90% answered no to the first question in the consultation, which was "Should the UK maintain the derogation for an additional 2 years?"

All of the artists and artists' estates who expressed an opinion on the derogation have said that they thought that it should be allowed to lapse. All bar two of the, often detailed, responses from the art trade were in support of extending the derogation until 2012.

Two UK collecting societies for resale right, supported by some of their overseas counterparts, argued that the derogation should be allowed to lapse. Several UK collecting societies and representatives of other rights made submissions saying that the derogation should be allowed to lapse in order that resale right is brought into line with the other types of copyright.

The UK Intellectual Property Office will now be analysing in detail all of the responses. If the Government decides it is necessary to extend the derogation it has to make a case to the European Commission by the end of this year.

Editor notes

• Artist's resale right came into force in the United Kingdom (UK) on 14 February 2006. It was brought in to enact Directive 2001/84/EC. This right entitles authors of original works of art (including for example paintings, engravings, sculpture, ceramics) to a royalty each time one of their works is resold in a sale involving an art market professional.
• The right only applies to sales for €1,000 or more and is calculated on a sliding scale. The maximum royalty payable on any single sale is €12,500.
• The royalty is subject to compulsory collective management so artists cannot claim their royalty independently but must receive it through a collecting society.
• At this stage the artist’s resale right only applies to works created by artists who are still living. From 2010 the right will also apply to works created by artists who have been dead for less than 70 years. This would result in a significant number of additional sales qualifying for payment.
• The original·consultation document (971Kb) can be viewed and downloaded on this website.
• For enquiries about the UK Intellectual Property Office press or media activities please contact Dave Hopkins on +44 01633 814140

Date of release: 11 November 2008