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Progress Up North: Artists’ Resale Rights In Canada

August 12, 2022
Flag of Canada

Flag of Canada

One of the main selling points of NFTs is that the blockchain provides a digital ledger documenting previous owners and how often the work has been resold. Ether, the main form of cryptocurrency that backs up most NFTs, has “smart contracts”. One of the things this does is it uses the ledger created by the blockchain to ensure that the work’s creator will get a small cut from the proceeds of any future sale. In an age where it’s very easy for a digital image to be freely shared repeatedly, it’s a great way for artists to get paid for their work. Now, since NFTs inhabit a place in the technological world that is vastly underregulated, it often isn’t as clear-cut as that. But in Canada, instead of implementing a whole list of regulations on NFTs, government ministers are toying with the idea of taking the concept behind a smart contract and applying it to the non-digital arts.

François-Philippe Champagne, Canada’s minister of innovation, science, and industry, has been working alongside Pablo Rodriguez, the minister of Canadian heritage, to craft new regulations and legislation to reform Canadian copyright law. In so doing, artists would be able to profit off the resale of their works. Canada is home to around 21,000 full-time artists, many of whom do not make much money and would greatly benefit from such reform. This would be particularly helpful for the nation’s many indigenous artists, who are often cut out or forgotten when their works end up in prominent galleries.

While these ministers have just now been brought on board, the real star of these efforts is Patricia Bovey. She is the first art historian appointed to the Canadian Senate, having previously served as director of the Winnipeg Art Gallery: “Artists are the group in Canada who make up the largest percentage of the working poor – below the poverty line… It’s our artists who tell us who we are, where we are, what we as a society face. If they can’t financially support themselves we will lose that really important window on who we are as Canadians.” Bovey has frequently cited copyright law from outside Canada, particularly France, as a model for protecting artists and ensuring their livelihood. In France, the idea of artists’ resale rights originally extends back over one hundred thirty years, when the estate of the realist painter Jean-François Millet began advocating for it. Since then, artists’ resale rights have become law in around ninety countries, including the United Kingdom and most of the European Union.

There are a couple of different arguments generally made in favor of establishing artists’ resale rights. The first rests upon what is known as the starving artist theory. This argument rests on a fairly understandable assumption that the arts are not often a very financially stable occupation. Many artists are often unable to support themselves through their work alone. Therefore, getting a small portion of the money their works makes on the secondary market would make the market a little fairer and help balance the wealth inequality between artists and collectors. This was why artists’ resale rights, or the droit de suite, was established in France in the first place, because the family of Jean-François Millet became absolutely destitute after his death while his works were being bought and sold for hundreds of thousands of francs on the secondary market. Also, ensuring artists’ retail rights is nothing new regarding other artistic media like music or literature. They’re just called royalties. When you stream a song on Spotify or buy a book from Barnes & Noble, the original musician or author receives a royalty payment. Therefore why should the visual arts be any different?

But of course, these arguments have their opponents. Starving artists are, of course, not as commonplace today as they were decades ago. Because of the world’s interconnectedness these days, it has become much easier for artists to gain recognition during their lifetimes. Therefore, artist resale rights are a little unnecessary because they can sell their works directly to dealers and collectors at higher prices that consider their level of recognition. And also, I can understand why likening a painting or sculpture to a song or a book may not sit right with some. An individual song or a book can be bought thousands of times, making them both artistic media and commodities. But in the visual arts, there’s an allure to something like a painting because of its uniqueness. In most cases, only a single person at a time can own a visual artwork.

CARFAC, one of Canada‘s largest nonprofit arts organizations, advocates for a resale rate of 5%. In some other countries, the percentage changes based on the amount a work is resold for, with the percentage decreasing slightly as the resale value increases. Canada’s efforts stand in stark contrast with the United States, where all efforts to implement a droit de suite on a national level have failed. Passing laws that enshrine resale rights has become increasingly popular over the past few decades. This has coincided with the rise of art being bought and sold as an investment, especially works by living, contemporary artists. The great American artist Robert Rauschenberg’s support for resale rights laws stems from the fact that a prominent collector bought one of his paintings for $900, only to resell it some years later for $85,000. On the state level, California has been the only state to have artists’ resale rights laws, which were on the books between 1976 and 2012. However, in 2012, the courts struck down the California law as unconstitutional. But since then, many organizations, including the Artist Rights Society, the Visual Artists Rights Coalition, and the US Copyright Office, have come out in favor of codifying resale rights on a national level in the United States.

I think, regardless of what practical arguments you make for or against instituting these kinds of regulations, at the end of the day, artists and the work they produce are the fuel that keeps the $60 billion art world machine running. Whether you are an artist, a dealer, a collector, researcher, historian, or anything in between, you cannot deny that the arts are absolutely central to the development and maintenance of culture at local, national, and global levels. This centrality is why so many dedicate themselves to supporting the arts. Ensuring that artists get paid for their work to continue developing and expanding their oeuvre can be one of the several ways we can get more fuel to the engine. The real question is … what is the proper and fair way to do it?