Canadian Artists Deserve Resale Rights

Artists in many countries receive royalty payments when their work is resold at auction. It’s time for Canada to catch up.

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Edmonton artist Paddy Lamb is the president and national spokesperson of Canadian Artists Representation (CARFAC), a non-profit organization that seeks to improve working conditions for visual artists. 

Grant McConnell is a Saskatoon artist and educator who has served as CARFAC’s president. He has also been a director of the Saskatchewan Arts Board, ACCESS Copyright and the Remai Modern.

Since its inception more than a century ago, the artist’s resale right has expanded internationally amid growing recognition that artists should get a small percentage of the sale price when their work is resold by an auction house or art gallery. But news that Canadian Heritage Minister Pablo Rodriguez may bring Canada into this global movement by introducing resale rights in revisions to the Copyright Act, possibly as early as next year, has prompted debate.

It’s helpful to understand the history. France was the first country to get this right when it introduced its droit de suite in 1920. The idea of resale rights had been around for a while – the principle was included in the 1886 Berne Convention, an international agreement governing copyright for literary and artistic works. 

“The author, or after his death the persons or institutions authorized by national legislation, shall, with respect to original works of art and original manuscripts of writers and composers, enjoy the inalienable right to an interest in any sale of the work subsequent to the first transfer by the author of the work.”

– Berne Convention for the Protection of Literary and Artistic Works, 1886

More recently, resale rights have been championed by the World Intellectual Property Organization, a Geneva-based United Nations agency that works to protect various types of intellectual property. The fact this approach has been adopted by some 90 countries, including those in the European Union, as well as Britain, Australia, India and Brazil, among others, demonstrates its value in ensuring rightful remuneration to artists and their estates.

The original story of how the resale right came to be adopted in France is as compelling today as it was in the late 19th century. In 1865, The Angelus, one of the world’s most reproduced paintings, was sold by Jean-François Millet for 1,000 francs. Fourteen years after Millet’s death in 1889, the wealthy copper merchant Eugène Secrétan sold it at auction for 553,000 francs. Millet’s estate received nothing from the sale and his impoverished relatives reportedly asked for charity as people left the auction. That sale, and the plight of struggling artists and their families after the First World War, spurred adoption of the law.

Or consider this example from closer to home. In 1960, the late Inuit artist Kenojuak Ashevak created an edition of 50 prints in two different colours of her iconic The Enchanted Owl. At that time, each print retailed for $75, with Ashevak receiving $24. In 2001, when one sold at auction for $58,650, she received no royalties. Again, in 2018, when one sold for $216,000 – setting a record as the most paid for a print by any Canadian artist – no royalties were paid to her estate. 

Stories like this are common in Canada. Yes, other people help build artists’ reputations, including supportive curators, dealers and collectors, as well as taxpayers through the financial support of granting agencies like the Canada Council for the Arts. But it is artists themselves, through many years of largely speculative – read underpaid – work, who contribute the most to any commercial success. For artists whose work flourishes in the secondary market, a small resale royalty is a modest measure that recognizes years of dedicated labour.

For over a decade, Canadian Artists Representation (CARFAC) has campaigned for the adoption of the resale right. To align with most other countries, CARFAC has proposed a five-per-cent royalty payment for works valued at $1,000 or more. That would see an artist receive a $500 royalty for a work that sells at auction for $10,000. 

Internationally, collective management organizations have taken on the administrative responsibility for overseeing royalties, which ensures efficiency and avoids saddling sellers with undue paperwork and other headaches. In Canada, Copyright Visual Arts, a non-profit copyright management company, has some 20 years of experience distributing royalties to artists for the use of their work under licensing agreements.

A modest percentage payment would not depress the resale market, as the Art Dealers Association of Canada has suggested. Providing royalties is a rational approach that has worked in numerous jurisdictions. While resale rights are structured differently depending on the country, there’s little evidence to suggest any significant negative impact on the market. In both Britain and Australia, the art market has grown considerably since royalties were implemented. Britain introduced artist resale rights in 2006. Last year, the equivalent of $15 million in resale royalties were paid to British artists and their estates. It has been reported that 81 per cent of artists use royalties for living expenses and 73 per cent use it to buy art supplies. In Australia, some 65 per cent of recipients are Indigenous artists. From 2010 to 2022, more than 2,400 artists have received the equivalent of almost $10 million. Most royalties are between $50 and $500.

Inuit and other Indigenous artists in Canada, who typically have less access to exhibition opportunities and other revenue streams, would certainly benefit from resale rights. Inuit art, in particular, often appreciates dramatically once it reaches the secondary market yet few artists benefit from the growth in value. This remnant of colonialism could be reconciled by thoughtful federal legislation. 

Another cruel reality is Canada’s exclusion from the international reciprocal-rights regime. Without our own legislation, Canadian artists often cannot collect income derived from international resales. This disproportionately affects immigrant artists, who are more likely to participate in secondary markets in other countries. 

Some Canadian art dealers argue that artist resale rights will help only a small percentage of artists. Certainly, resale rights are not a magic bullet that will suddenly enrich artists. However, it’s difficult to dismiss the differing circumstances of artists who often rely on multiple modest income streams to make a living. Even small royalty payments can help keep artists in their studios. As Wally Dion, an artist of Saulteaux ancestry, has told CARFAC: “The arts are often correlated to gentrification. As housing and studio costs soar, artists and art making are pushed out. Every little bit, no matter how small, that keeps the artist working and making art, helps.” For older artists, who often face dire financial pressures without pensions from day jobs, resale royalties can offer vital support. Many artists have spoken in favour of resale rights, as have some dealers.

Fundamentally, resale rights are about respect. Artists serve long apprenticeships. It takes years to refine their skills and build reputations. These are years of underpaid, or even unpaid, work. Recognition in the form of royalties exists in other sectors. Authors and musicians earn royalties – why should visual artists be any different? What we want is a level playing field. As prices for art sold at Canadian auctions soar, it’s only fair to see a little of that wealth flow back to artists. The arts economy shouldn’t thrive at the expense of artists. If Ottawa enshrines resale rights for visual artists, it could go some distance in restoring Canada’s international reputation as a rights-based supporter of cultural creators. Supporting artists in this way strengthens both the arts economy and our cultural heritage. ■

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