Artist's resale right derogation - the IPKat was wrong

The IPKat's prophetic properties must be on the wane. In November, following at UK IPO consultation, the IPKat reported that 90% of respondents favoured ending the derogation from the resale right covering dead artists. The IPKat said that he 'has no doubt which way the Government will decide this issue'. It therefore came as a surprise to the IPKat to read of this letter, from John Denham, the Secretary of State for Universities, Innovation and Skills, to EU Commissioner, Charlie McCreey, asking for a two year extension of the derogation.

The fragile state of the UK art market, and the fear that sales will be diverted to New York or Geneva if the derogation is lifted is given as the reason. The letter also argues that if the UK art market declines then living artists will also suffer. However, Mr Denham also states that the UK backs the EU's attempts to get WIPO to consider making the resale right 'compulsory throughout the world'.

The IPKat wonders whether, in current economic conditions, the resale right will be the thing which is decisive as to where a sale takes place. Surely at least as important will be the value (or lack thereof) of the respective countries' currencies. Either way, he reckons that if the resale right really is that significant, the EU are going to have a hard job convincing WIPO members to take on the right. Merpel asks, is this the first IP policy to be directly shaped by the credit crunch?

Late responses delay dead artists' right assessment

Today's press release from the UK Intellectual Property Office (UK IPO) is bound to annoy at least someone, since it addresses a subject that raises many individual and some collective hackles: the artist's resale right.

Right: one dead British artist who won't be benefiting from letting the derogation lapse - William Hogarth

The press release, "The Artist's Resale Right: The Derogation for Deceased Artists", reads in relevant part as follows (with key bits in bold):

"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 ["late"? Best unintended pun of the year ...].

The consultation [which, the IPKat notes, remarkably attracted over 400 responses] 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. ...

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. ...".

The IPKat, who is beginning to suspect that there may be votes in dead artists' resale rights after all, has no doubt which way the Government will decide this issue.

Consultation document here
Dead artists here
Dead poets here; dead poets' society here