Enriching The Lives Of Artists In The Philippines Through The Use Of Resale Right

• Published date: 02 September 2020
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Music and the Arts
• Law Firm: De Leon IP Law Firm
• Author: Jose Miguel de Leon

Before the COVID-19 pandemic, the Philippine art market and auction scenes were booming. However, despite the burgeoning art scene in the Philippines, a lot of artists are not aware of the resale right provided by law.

The resale right (also known by its French name droit de suite) is the legal right of artists or their heirs to receive a royalty from the resale of their work. It originated in France in 1920 and is based on equity, i.e., artists have a right to be compensated for the increase in the value of their works. It has been created for the benefit of the artists as they have the right to be compensated not only for the first sale of their works but also for the subsequent sale of their works.

The resale right seeks to redress the balance between the artists and those who benefit from the increase in the value of their works. It is not uncommon for artists to live in poverty while their works are subsequently sold for a substantive amount The resale right allows the artists to reap the fruits of their labor. After all, the value of the artists' works increases as their reputation and popularity increase as well.

There are around 80 countries that provide for the resale right including the Philippines. It is also recognized as an optional obligation in Article 14ter of the Berne Convention. However, there are prominent countries that do not provide for the resale right such as the United States, Canada, China, and Japan.

Resale right in the Philippines

The resale right in the Philippines was first introduced in the Decree of Intellectual Property (P.D. No. 49), which was enacted on 14 November 1972. It was then incorporated in Section 200 of the IP Code of the Philippines (IP Code), which provides:

SECTION 200. Sale or Lease of Work. In every sale or lease of an original work of painting or sculpture or of the original manuscript of a writer or composer, subsequent to the first disposition thereof by the author, the author or his heirs shall have an inalienable right to participate in the gross proceeds of the sale or lease to the extent of five percent (5%). This right shall exist during the lifetime of the author and for fifty (50) years after his death.

Although the resale right has been around since 1972, the Implementing Rules and Regulations on Resale Rights (IRR) was only issued on 3 July 2020. However, the IRR applies to the resale of works that transpired prior to its effectivity.

The resale right is defined by the IRR as the right of...