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A conference aimed to “create momentum” towards a possible future multi-national treaty on the levy was staged in Geneva last week, with delegates ranging from policy makers, copyright agencies and artists. It was organised by the World Intellectual Property Organisation, a UN agency, and held at its Swiss headquarters.

Erika Bochereau, the secretary general of CINOA, the international confederation of art and antique dealer associations, told ATG that she declined to attend the event.

“I was invited to participate in a panel discussion on the implementation of ARR,” she said, “but we declined and indicated to the organisers that we did not have anything very positive to say about ARR.

“We do not think that it helps artists and it jeopardises the important role of a dealer to promote artists by adding an additional charge. We are against any expansion.”

Currently, the 28 members of the European Union apply ARR to works sold on the secondary art market, and a similar levy has been introduced in a number of non-EU countries such as Australia.

Countries where it does not apply include the US, China, Switzerland and Japan.

The campaign to extend ARR across the globe is being led by the International Confederation of Authors and Composers, whose director general Gadi Oron said that “there is such strong support for it from the artist community and from a growing number of governments around the world”.

Industry View

Erika Bochereau, Secretary General of CINOA

“We hope that there is no serious possibility of an international treaty although clearly the collection societies would like it.

“Given that Switzerland and the US (except California) is not interested in adopting ARR, I would be very surprised if it happened.

“We have never supported the argument that ARR should be adopted by all countries to create a level playing field. In our opinion, the best level playing field would be to eliminate ARR. As a previous US member said when the EU directive was being discussed, ‘just because Europe is shooting itself in the foot, why should other countries?’”

Expert View

Simon Stokes is a partner with law firm Blake Morgan in London and is the author of Artist’s Resale Right (Institute of Art and Law: 2nd edition 2012; 3rd edition forthcoming).

“The idea of a global treaty on ARR is very much at a preliminary stage.   Article 14ter of the Berne Copyright Convention says ARR is optional in international copyright law.  Rather than try to revise the Berne Convention to make ARR mandatory (which frankly is highly unlikely to ever happen) proponents of ARR are now arguing for a separate international Treaty on ARR.   For such a Treaty to have the impact its proponents want it would require countries like the US, UK, China and Switzerland to agree to it and, at the moment, it is doubtful that they would wish to do so.

"ARR has a chequered history outside of the EU.  A number of states say they have it on their statute books but in reality its collection, if at all, in those states does not meet the requirements needed under EU law to allow their nationals to receive ARR from EU sales – in the UK ARR is only collected for artists who are EEA nationals currently.  Attempts in the USA, Switzerland, Canada and New Zealand to introduce the right have so far failed.  The only major market outside the EU to have recently introduced ARR is Australia which has had ARR in effect from 2010 but even there its progress has been fairly mixed and the law has been under review.

"In the last few years the larger copyright collecting societies and their federations like CISAC have become vociferous supporters of ARR and helped the smaller artists collecting societies and their supporters to push the issue up the agenda.  They have established a new website to promote ARR internationally and, in 2015, an academic study by Professor Sam Ricketson was prepared for CISAC to review the arguments for a possible ARR treaty and it includes proposals for such a treaty.

"My personal view is that a global treaty would take a number of years to move forward assuming the international copyright community felt Article 14ter even needed adding to.  It would face significant opposition.”