LETTERS: Visual artists can now get resale royalty

The Kenya Copyright (amendment) Act, 2019 was assented to on September 18. It amends the Copyright Act Number 12 of 2001. These amendments are intended to update copyright laws and provide better protection for copyright works in the digital environment. Part of the amendments is aimed at granting visual artists enhanced rights in their artwork.

The amendment defines an artwork as an original work of visual art created by an artist(s) or produced under their authority.

Visual art includes painting, sculpture, and film as contrasted with literature and music. However, for the purpose of the amended law, visual art does not include motion pictures or film as they fall under the definition of audio visual works.

The amendment defines an original work of art to include batiks, carvings, ceramics, collages, drawings, engravings, fine art, jewelry, glassware, lithographs, fashion design, paintings, photographs, pictures, prints, sculptures, graphics, weavings, or any other works as may be included by regulation.

Provided they are made by the artist himself or copies considered works of art in themselves.

One of the most progressive changes in the amendment as far as visual artists are concerned is that it grants visual artists a resale royalty right.

This right provides visual artists with an opportunity to benefit from the increase in value of their artwork over time by granting the artists a percentage of the proceeds from the resale of their original artwork.

There is a rebuttable presumption under the amended Act that a person whose mark or name purporting to identify him/her as the artist of the artwork appears on the artwork is the artist and hence the beneficiary of the resale royalty right.

Under the new law, resale royalty right refers to the right of an artist or successors to receive resale royalty on commercial resale of an artwork.

This will be an exemption to the established international legal doctrine of exhaustion of copyright. The visual artists’ right to a royalty does not “exhaust” on their artworks’ first commercial sale.

This right will be valid as long as copyright continues to subsist in the original artwork. Consequently, the right subsists for 50 years after the end of the year in which the artist dies other than for photographs where the right will subsist for 50 years after the end of the year in which the photograph was either made, or published, whichever is the latest.

The right will not be available when the work falls into public domain or copyright in the work ceases to exist for whatever reason.

The artist resale right will be inalienable and will be incapable of being waived under any circumstances.

This suggests that the right cannot be sold, or transferred, or surrendered, neither can the artist relinquish, or renounce, or abandon the right. It is therefore a personal and non-transferable right. The law also allows visual artists to form a collective management organisation (CMO) in order to manage the resale royalty right. In the absence of a CMO, the Attorney-General shall designate any registered CMO to manage the right.

The resale royalty will be payable at the rate of five percent of the net sale price on the commercial resale of an artwork.

The seller, the art professional, the seller's agent and the buyer will be jointly and severally liable to pay the resale royalty. An art market professional includes an auctioneer, owner or operator of a gallery, museum, an art dealer or any other person involved in the business of dealing in artworks.

LITERARY WORK

The royalty will only be payable on commercial resale and shall not be payable where the resale price is less than Sh20,000 or the resale concerns the resale of a building, or a drawing, plan or model of a building or where it is an auction for charitable purposes or it is a fine art production of identical copies, or if it concerns a manuscript of a literary, dramatic or musical work.

The applicability of this right beyond the Kenyan boundaries will largely depend on reciprocity as there is no international instrument on resale royalty right.

However, discussions to develop an international instrument are ongoing at WIPO's Standing Committee on Copyright and Related Rights.

Paul Kaindo,Advocate of The High Court and a Senior Legal Counsel at Kenya Copyright Board.