Artist's Resale Right (ARR) after Brexit – will it still apply and who will benefit from it?
Artist's resale right is a controversial IP right of European origin and gives visual artists a royalty each time their work is sold by a gallery or auction house after its first sale – what in art market parlance is the secondary market.
Currently the right is available in the UK for both UK artists and also nationals of other EU and EEA states (and their heirs). So a German artist or their heirs is entitled to the right if their work is sold in London just as a UK artist or their heirs is entitled to the right if their work is sold in Berlin.
Last week the UK Government made clear that following the UK's withdrawal from the EU it is intended that ARR will continue (at least for the time being) but only artists who are UK nationals (and their heirs) will definitely be entitled to the right – this will be the effect of the proposed Intellectual Property (Copyright and Related Rights) (Amendment) (EU Exit) Regulations 2018 published on 26 October.
Nationals of other countries (including of the EU/EEA) will only benefit from the right in the UK if their own state permits resale right protection for UK artists and their heirs. So a French or German artist, say, will only benefit from the right in the UK if German or French law gives equivalent protection to UK artists and their estates.
This begs the question of whether following the UK's withdrawal from the EU our former EU/EEA neighbours will continue to offer this right to UK nationals. One would expect so as the UK is the EU's largest art market so it would not be in a current EU/EEA member state's interests to have Brexit remove the right from its own nationals. But all will depend on how the current national legislation implementing the relevant EU law (the ARR Directive from 2001) is drafted in each EU/EEA state.
We can expect some uncertainties arising – it is to be hoped that the two UK ARR collecting societies, who administer UK ARR on behalf of all artists (UK and foreign), are now in touch with their sister collecting societies across the EU/EEA to understand if they can continue to collect for non UK artists after Brexit and if so for which territories.
This is an example of the complexities Brexit poses where UK law is derived from EU law, as it is for much intellectual property legislation. The UK's position on ARR is however consistent with its international copyright obligations under the Berne [Copyright] Convention, where ARR is available only a reciprocal basis – this is why at present a US artist is denied UK ARR as the USA does not have an ARR law in place which UK artists can benefit from (indeed there is no federal US law here).
However the UK is free under the Berne Convention to remove the right altogether following Brexit as ARR is not mandatory under the Berne Convention. Whether Brexit reignites the often heated debate surrounding whether the UK should have ARR at all remains to be seen.
Simon Stokes is a Partner within our Commercial team and a copyright specialist; he is the author of the leading text Artist's Resale Right: UK Law and Practice (Institute of Art & Law, 3rd edition 2017)