In the early 20th century a new right was created in France known as the droit de suit (lit. “right to follow”). This was designed to ensure that an artist receive some form of royalty from the resale of their work. This contrasts with the American notion of the first-sale doctrine. In practice, this only applied to works of art acquired at auctions and resulted in major art trades being made in places without an equivalent right, such as London.
After much debate, the notion of a resale right was put into European law by a directive “on the resale right for the benefit of the author of an original work of art”.1 This was implemented into UK law via the Artist’s Resale Right Regulations 2003.2
These regulations create a resale right for the author of a copyrighted work which entitles them to “a royalty on any sale of [their] work which is a resale”3 or resale royalty. This right lasts as long as the copyright does. Fortunately, there are considerable restrictions both on what sort of works are covered, and what sales.
In particular, it only applies to works “of graphic or plastic art”4 and supplies a list of possible examples. Similarly, the work must [either be the original work of the artist, or] “one of a limited number”5 [of copies authorised by them. It]
and so does not apply to digital content, nor anything mass-produced [Updated: see comments for more detail]. However, there are several other, important differences between the resale right and normal copyright.
Note: This contrasts with copyright for which the economic rights can be assigned to others (for example sold or signed away) and both the economic and moral rights can be waived. This makes the resale right significantly different.
There are also restrictions on what counts as a “resale”. It only covers a transaction where at least one party involved is acting “in the course of a business of dealing in works of art” and the sale price is over €1,000.8 Furthermore, if the seller acquired the work of art less than three years earlier directly from the artist and the price is less than €10,000, there is no resale right.9
Another significant variation from copyright is that the resale royalty cannot be collected by the artist themself. The right may only be exercised by a collecting society10 which must have managing royalties as one of its main functions and must be paid for it. In addition, if the artist has not appointed a collection society to manage their royalties, the appropriate society must assume control.11
The remainder of the regulations cover provisions such as collective management, rights to information and specifics on when and how the regulations come into force. In particular, the resale right does not apply to any sales before the regulations were made, but does apply to any future sales of works previously created or first sold.
There are two schedules at the end of the regulations, the first of which describes how much the resale royalty is, starting at 4% for sale prices of €50,000 or less, down to 0.25% for those exceeding €500,000. However, there is an absolute cap of €12,500. The second schedule lists countries (in addition to those within the European Economic Area) whose nationals have a resale right.
Note: There are certain major countries that are not included in the list, including many prominent North American, Asian and Australasian countries. The full list can be found here.