The 'Droit de Suite', An Analysis Across Two Jurisdictions: Cross Fertilisation Towards Inclusivity

• Author: Anthony O' Dwyer
• Position: BBS, BCL Phd Candidate UCC
• Pages: 59-78

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THE ‘DROIT DE SUITE’, AN ANALYSIS ACROSS TWO JURISDICTIONS: CROSS

FERTILISATION TOWARDS INCLUSIVITY

Anthony O’ Dwyer*

ABSTRACT

The paper will examine the ‘droit de suite’ or artists’ resale right and analyse how it has

been applied in the EU and in Ireland. The paper will also look at moves in the US to adopt

a similar right and assess whether there has been any cross fertilisation of ideas. The

question will also be asked whether the current EU system could learn something from the

proposed US formulation. The compar ison will be conducted under a number of hea dings

which will compare how the right functions in the EU, Ir eland and under the proposed US

provisions. It will conclude with an assessment of the effect of the droit de suite on the EU

market to-date and whether this will have any effect on a future US decision to incorporate

the right into their copyright law.

A INTRODUCTION

The droit de suite is an intellectual property right. It literally means ‘the right to follow’, and

is a further extension of the protection afforded by copyright to the creators of art. These

rights combined respond to a market failure to make socially beneficial activities financially

viable for their creators.

The droit de suite entitles artists and their heirs to retain an interest in all successive

commercial re-sales of their art-work and receive a portion of the selling price.

1 The right is

often referred to as a moral right as opposed to an economic right as enshrined in traditional

copyright law.2 ‘Moral rights consecrate the idea that there is an intimate link between the

author and the work, because the work carries a personal imprint of the author.’3 Historically

these moral rights4 encompassed rights of integrity, paternity, disclosure and retraction,

giving artists control of how their work was utilised after sale. There was no economic return

*BBS, BCL Phd Candidate UCC.

1 Rita E Hauser, ‘French droit de suite The Pro blem of Protection for the Underprivileged Artist Under the

Copyright Law’ in Copyright Law Symposium 1, 24 (ASCAP Copyright Law Symposium Series No 11, 1962).

2 Henry Lydiate, ‘Artists Resale Right; Fourth Year Report’, (Artlaw, Art Monthly Magazine 2010), <

http://www.artquest.org.uk/articles/view/artists-resale-right-4th-year-report > accessed 2 0 February 2013.

3 Anne Latournerie, ‘International Perspectives on Moral Rights’ (SABIP Policy Panel Event, 23 rd March 2010)

< www.ipo.gov.uk/ipresearch-international-2010.pdf > accessed 20 February 2013.

4 These moral rights have their basis in the civil law tradition and it was not until the Berne Convention of 1928

that moral rights took on an international dimension and transcended their civil law origins. See ‘The Berne

Convention for the Protection of Literary and Artistic Works’, September 9, 1886 , as revised at Paris on July 24,

1971 and as amended Sept 28, 1979, 102 Stat 2853, 1161 UNTS 3, <

http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P174_33037 > a ccessed February 20 2013.

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as the focus was on protecting the art and the artist’s reputation. Therefore, while the droit de

suite is often cited as a moral right, it is fundamentally different.

B DROIT DE SUITE IN THE EU

Albert Vaunois first introduced the concept of the droit de suite for visual artists in an article

published in the Chr onique de Pa ris in 1893.

5 A French attorney, Edouard Mack, then raised

the issue of the droit de suite in his 1896 report to the Berne Congress of the International

Literary and Artistic Association. The Société des Amis du Luxembourg were formed in

Paris in 1903 with the specific purpose of enacting the droit de suite into law. Its draft

proposal was issued one year later, serving as the basis for the French Act of 1920.6 Under

that law there were several exemptions to the right including the exclusion of private sales; it

was thought that this made collection of the royalty more practical as collecting societies

could engage in arrangements with galleries and auction houses.7 The right slowly spread for

a time across Europe with Belgium adopting the right in 1921,8 Czechoslovakia in 1926,9

Poland in 1935,10 Uruguay in 1937,11 and Italy in 1941. 12 The right was subsequently

adopted by the Brussels Conference of the Berne Convention in 1948.13 However it was not

until the block adoption by the EU fifty years later14 that the right gained some momentum.

In the EU a desire to remove distortions in the internal market gave impetus to the EU

Commission to investigate the merits of the droit de suite and consider whether the laws of

Member States should be harmonised so as to include the right. Following the EU

Commission Green Paper in 1995 it was decided to harmonise the law by implementing the

right.15 The Resale Right Directive came into effect on the 21st of September 2001.16

5 Albert Vaunois, ‘Chronique de Paris’, 25 Feb 1893, quoted in Liliane de Pierredon -Fawcett, The Droit de Suite

in Literary an d Artistic Proper ty, A Comparative Law Study (Louise-Martin Valiquette Translation), (New

York, Columbia University 1991).

6 Art 42 of Loi du 20 mai 1920 (1957 JO 2723).

7 ibid.

8 Law of 25 June 1921.

9 Law of 24 November 1926, art 35.

10 Law of 22 March 1935, modifying that of 29 March 1926.

11 Law of December 1937, art 9.

12 Law of 22 April 1941, arts 144-55.

13 ‘Brussels Conference on the Berne Convention for the Protection of Literary and Artistic Works’ (June

26th1948).

14 Council Directive 2001/84/EC, Official Journal L 272, 13/10/2001 P 0032 -0036.

15 Commission (EC), ‘Copyright and Related Rights in the Information Society’ (Gree n Paper) COM(95) 382

final, 19 July 1995.

16 Council Directive (n 14).