On May 29, 2013, Bill C-516 was introduced as a
private member’s bill in the House of Commons. The bill seeks
to amend the Copyright Act to
provide creators of certain works with royalties payable upon
resale of their work.
The proposed legislation sets the resale royalty at 5% of the
sale price of any work that is re-sold for $500 or more after the
first transfer of ownership by the artist. The resale right
would apply to “an artistic work, including a painting,
sculpture, collage, print, lithograph, tapestry and a ceramic or
glassware item”, but would not include maps, charts, plans,
photographs or architectural works, or a copy of an artistic work,
unless the copy is one of a limited number that had been made by
the author or with the artist’s authorization.
Therefore, the scope of work which would attract the resale
right is narrower than the scope of “artistic work” as
currently defined in the Copyright Act.
Also known as “droit de suite”, artists’
resale rights originated in Europe as a way to ensure that artists
receive benefits from prior work, and share in the appreciating
value of their work as their reputation develops. Currently,
there are over sixty countries around the word that have
implemented an artist’s resale right.
The proposed Canadian resale right would be required to be
exercised through a collective society, and would subsist as long
as copyright subsists in a work. Waiver of the right would not
be permitted, and the right could only be assigned upon the death
of the artist. Payment of resale royalties would be a joint
and several liability of both the seller of the work and every
person who acted in the capacity of art market professional (i.e.
auctioneer, art gallery owner, art dealer) as agent for the
Private member’s bills face a difficult road in becoming
law. We will continue to monitor and report on this bill as
it passes through the legislative process.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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