The Artists’ Resale Right Directive 2001/84/EC: a socially orientated reconceptualisation – fomenting social inclusion and remunerative parity

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Date
2018
Authors
O'Dwyer, Anthony
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University College Cork
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Abstract
Due to the nature of their work visual artists enjoy a unique place within copyright law. Not only do these creators benefit in the main from the right of reproduction but also from the value attached to the original artefact embodying the protected work. Framed accordingly it might seem that visual artists are particularly well positioned to benefit from this remunerative duality, traditionally however, this has not proven to be the case. Throughout history visual artists have sold their work at a mere fraction of the work’s inherent value, a value that would only later be realised by subsequent purchasers. Recognising this inequity the droit de suite developed with the objective of adequately rewarding visual artists for their exploits by connecting their recompense with the work’s subsequent resale value. As the right spread through Europe it often embodied a social security function that distributed funds to benefit elderly, needy and emerging visual artists. Despite an express EU social mandate, today’s EU equivalent, the Artists’ Resale Right (ARR) Directive 2001/84/EC is shorn of any such social responsibility. The question that this thesis addresses is whether visual artists would be better served under a resale rights rubric that reflects its original social function. This investigation brings to the fore the liminality of the resale right as part copyright, part income security; distributing royalties to successful visual artists while contemporaneously providing a social net to those less fortunate. In considering whether a theoretical justification exists to support this liminality the thesis investigates the dialectic of Hegel’s personality theory and social citizenship. By advancing the idea of citizens’ duty to one another, social citizenship provides the theoretical basis upon which the aforementioned construction is justified, and in doing so excludes a strictly individualistic understanding of the artists’ resale right that is largely economically orientated and copy-centric. The primary conclusion of this thesis is that the ARR Directive would better serve visual artists at the margins of our society by adopting a redistributive, social function, redolent of the extant ARR models of Germany and Norway.
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Copyright , Intellectual property , Artists resale right
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O'Dwyer, A. 2017. The Artists’ Resale Right Directive 2001/84/EC: a socially orientated reconceptualisation – fomenting social inclusion and remunerative parity. PhD Thesis, University College Cork.