Droit de Suite...but not tout de suite

The Irish Government has announced the introduction of an Artists' Resale Right, otherwise known as droit de suite (right of continuation), which provides for loyalties to be paid to visual artists - and potentially also to their heirs - upon the resale of their work.

However, it's taking a staggered approach to the introduction of the legislation in question; instead of bringing the legislation in fully (and thereby enacting the EU directive which, by right, should have been enacted before January 1st of this year), the Minister for Enterprise, Trade and Employment has put in place "temporary measures" which will allow artists to benefit from the Artists' Resale Right "in advance" of full legislation. The Department will continue, as planned, to introduce a new Act of the Oireachtas dealing with Intellectual Property, through which the EU directive will be properly implemented, but because that legislation will not be passed for at least another six months, and because it involves "complex matters" which can not be immediately addressed, these temporary measures are being introduced in the meantime. For the benefit of artists.

And if you believe that explanation, then the disingenuous hype of the last seven days, in which a crooked politician was championed as the greatest friend to the arts since Lorenzo de' Medici, has obviously achieved its desired effect. This is not a touching display of State sensitivity to the arts. It's not even a touching display of legality. Well, legal it is, but just about. What's on display here is the naked back of the Government being covered, once again, with shabby haste.

Here's why. The EU directive on the Resale Right is something about which the Government has known for more than five years at this stage. There was an official deadline for the implementation of that directive, and, surprise, surprise, that deadline (1st January 2006) was allowed to pass. That is, the Government failed to meet it. And the artist Robert Ballagh was entirely within his rights to challenge the Government on this, and he did. He is currently seeking damages from the State due to its failure to do what the EU directed it to do, and introduce full legislation on this issue. Ballagh is claiming damages for revenue lost after the deadline - revenue, that is, which he would have earned from the resale of his work had the directive been properly enacted. Or enacted at all.

And guess when Ballagh's case was due to be heard? Next week. And hence the rushed stopgap measure. Because if a court had found in Ballagh's favour - and it's hard to find any reason why it would not - then the outcome of that case would have implications for all artists whose artworks were resold for more than €3000 since January 1st. Whether Ballagh's case now collapses entirely, or whether he can still sue for revenue lost between January and June, is not yet clear- maybe someone better versed in legal matters can advise on this in the comments. But what is clear from looking at this interim legislation is that the Government has wilfully failed the artists whose rights it has been instructed to protect. These measures meet only the bare minimum of the requirements set out by the EU Directive. They come straight from the bargain basement of Government policy. And they don't inspire much confidence in the shape of the fuller legislation to come. Two of its most charming features:

• A work must be sold for €3000 before Resale Rights (up to 4% of the sale price) kick in. Lobby groups had suggested the much fairer figure of €1000. And just how fair that figure is becomes clear when you look at the thresholds operating in other countries where droit de suite is a given: in Finland, it's €252, in Germany €51, in France just €15. Anybody who is familiar with the Irish art market and with art auctions will know that the scene is small and not hugely competitive, and that you're not at all unlikely to pick up a painting by a significant contemporary artist at, say, the Irish Art Sale at James Adam, for less than €3000. A huge number of artists are going to be left without royalties if this threshold is maintained in the actual legislation. Which really makes a mockery of its introduction in the first place.

• In other fields, artists are protected by copyright. Copyright lasts throughout the artist's life and for 70 years after their death. The EU advised that the Resale Right should be implemented in a way which mirrors the terms of copyright - but left the matter of the actual duration up to individual member states. The Irish Minister has decided, in this implementation, to cut the 70 years clause and limit the right to the artist's lifetime, apparently ignoring the fact that droit de suite was first created as much to benefit artists' heirs as to benefit artists themselves. Perhaps the Government cannot be blamed for baulking at the idea of the full 70 year duration, but that it is not obliged to include a posthumous period in the legislation in no way justifies a complete exclusion. A 20 or even 15 year period, for example, would see to it, say, that any young families might be provided for in some way after the death of an artist parent. It's well known that the work of an artist often soars in value after his or her death, and not difficult to imagine a case where a dead artist's family could face financial difficulty, even as his or her work fetched increasingly high prices at auction.

It's not surprising to see the outspoken Ballagh as the head of this campaign, but I think in a way it's unfortunate, or at least seems a missed opportunity - he's not, after all, representative of the group of artists who are most in need of Resale Rights. He makes real money from his art, and doesn't live in poverty - or if he does, he's the first artist driving a beautiful convertible while also living in poverty that I've ever seen. I admire him for taking this case, but I can't help wishing that he was joined by an artist nearer to the other end of the income scale, someone for whom the droit de suite could be the difference between poverty and subsistence, rather than between less profit and more. Such a case would serve to hammer home even more vividly the need for this legislation, and the need for its future, more fully developed form, to take into account the recognised right of artists to make a living from what they do.

PS: I'm not sure whether, or how, the sale of work online is affected by the existence of droit de suite. Does anybody know? Since moving here, we've bought a few pieces on e-bay, mostly lithographs, and a couple of photographs. One of these was direct from the artist - Luca Paradisi, a photographer based in Cork, whose website is here - but the others were from dealers, and at least one from somebody who just had the print lying around the house for years. There's certainly no mechanism on ebay at the moment to deal with the distribution of Resale Rights, and I can't see the website rushing to incorporate such measures. But, say, if someone is lucky enough to pick up a Hughie O’Donoghue lithograph for €3000 from someone offloading it on ebay, will he now get 4% of that sale?

Again, most work on ebay goes for a lot less than €3000, even if it would fetch that price or close to it in a gallery. It's a bargain for buyers, but from the artist's point of view it's not such a good thing, whether or not resale rights are part of their country's law.

Update, June 23: The resale value will be set at the much more sensible threshold of €1000, reports today's Irish Times Article below the jump.

Resale threshold for artist to get cut set at €1,000
Gerry Smyth
23/06/2006

The value at which artists will be entitled to a share in the resale of their work is to be set at €1,000 in new legislation due before the Oireachtas in the autumn.

The new legislation, which is expected to become law by the end of the year, follows this week's "interim" regulations placing a minimum value of €3,000 on a work of art for it to qualify.

However, the €1,000 threshold limit is the figure for which organisations such as Visual Artists Ireland and the Irish Visual Artists' Rights Organisation have been lobbying, as it would ensure that the majority of artists, including printmakers, would benefit.

Under this week's regulations, artists are now entitled to 4 per cent of resale value of their work and this will be enshrined in the primary legislation which has been drafted in a consultation process between the Department of Enterprise, Trade and Employment and the Department of Arts.

This week's regulations, and the forthcoming Bill, are in response to an EU directive on resale rights known as droit de suite. The State's failure to introduce the resale rights earlier in the year - it was due to be enacted from January 1st - was recently challenged in the High Court by artist Robert Ballagh, whose work frequently comes up for auction.

Under the directive, there is a ceiling of €12,500 on the amount an artist can receive on resale. One issue that needs teasing out when the full legislation comes up for Dáil debate is the duration of resale rights - how far down the family line it should extend beyond an artist's immediate dependants and family. The temporary regulations applies only to living artists.

Under the EU directive, a derogation on payment of the resale royalty to the heirs of deceased artists is available until 2010 but the Government will not seek to avail of this option.

The temporary regulations give artists the right to obtain details about those who sell on their work, but they are unclear about the means of collecting the new royalties, whether it is to be on a one-to-one basis between artist and vendor, or through some more formal arrangement. The legislation, however, is likely to place the onus on the auction houses and dealers.

The interim measures are effective from June 13th, a date on which, coincidentally, a major auction of contemporary Irish art was held by deVeres with work by a number of living artists - Louis LeBrocquy, Donald Teskey, John Shinners, William Crozier, John Doherty as well as Ballagh - receiving high prices.