US Droit de suite and Antiquities

The US Copyright Office, ie the registration arm of the Library of Congress, is conducting an inquiry into the droit de suite (aka the resale royalty right).

The droit is in place in Australia (and in Europe) but so far has underwhelmed most stakeholders.

The Office's notice comments that -

Under the Copyright Act (the “Act”), 17 U.S.C. 101 et seq., visual artists, like other authors, are provided a bundle of exclusive rights, including rights to reproduce, distribute and create adaptations of their works. These rights, however, do not affect the disposition of the original work of authorship. Instead, the first sale doctrine, codified in 17 U.S.C. § 109, generally permits the lawful owner of a copyrighted work “to sell or otherwise dispose of the possession of that copy” and to “display that copy publicly ...” without the authorization of the creator. 

For many works, such as books, musical works and sound recordings, this system provides substantial economic benefits and incentives for creators. A question is whether the system is as advantageous for certain artists of visual works. For some artwork, where the primary financial benefit may be through the sale of the original work rather than multiple copies, the creator may receive less financial benefit from the work than do subsequent collectors or other downstream entities that are able to take advantage of the increase in the value of the artwork over time. A resale royalty right is one way by which to address this perceived inequity by allowing artists to receive additional compensation from later sales of the original work of art. Some foreign countries have experience with this approach. 

The Copyright Office has been asked by Congress to review how the current copyright legal system affects and supports visual artists; and how a federal resale royalty right for visual artists would affect current and future practices of groups or individuals involved in the creation, licensing, sale, exhibition, dissemination, and preservation of works of visual art.

In Australia the Federal Magistrates Court in BC Galleries (Vic) Pty Ltd v Commonwealth of Australia [2012] FMCA 742 has considered a challenge to the seizure and forfeiture under the Protection of Moveable Cultural Heritage Act 1986 (Cth) of items believed to be illegally exported protected objects of a foreign country that had been imported into Australia.

BC successfully argued that the Commonwealth bore the onus of proof to show that

• each of the objects seized was a protected object of a foreign country, ie “an object forming part of the moveable cultural heritage of a foreign country” (with the 1986 Australian statute reflecting the 1970 UNESCO Convention on the means of prohibiting the illicit import, export and transfer of ownership of cultural property)
• the object had been exported from the relevant foreign country;
• the law of the relevant foreign country relating to cultural property prohibited the export; and
• the object had been imported into Australia.

The Court held that some of the items were likely to be fakes and that the Commonwealth had not established beyond the balance of probabilities that others had left China since November 1982 when the Act came into operation.

It ruled that the Commonwealth had failed to establish on the balance of probabilities that any of the seized objects were liable to forfeiture under the provisions of the Act. An order was accordingly made for the return of the objects to the gallery.