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DINGLASAN, L

DROIT DE SUITE / RIGHT TO FOLLOW

IMMEDIATE PROTECTION. The aforementioned (literary and artistic works) are protected from the
moment of their creation. (SECTION 172.1) Works are protected by the sole fact of their creation,
irrespective of their mode or form of expression, as well as of their content, quality and purpose.
(SECTION 172.1) (Sec. 2, P.D. No. 49a)

COPYRIGHT AND MATERIAL OBJECT. The copyright is distinct from the property in the material object
subject to it. Consequently, the transfer or assignment of the copyright shall not itself constitute a
transfer of the material object. Nor shall a transfer or assignment of the sole copy or of one or several
copies of the work imply transfer or assignment of the copyright. (SECTION 181) (Sec. 16, P.D. No. 49)

COPYRIGHT OR ECONOMIC RIGHTS. Subject to the provisions of Chapter VIII, copyright or economic
rights shall consist of the exclusive right to carry out, authorize or prevent the following acts (SECTION
177) (Sec. 5, P. D. No. 49a):

177.1. Reproduction of the work or substantial portion of the work;

177.2. Dramatization, translation, adaptation, abridgment, arrangement or other transformation of the


work;

177.3. The first public distribution of the original and each copy of the work by sale or other forms of
transfer of ownership;

177.4. Rental of the original or a copy of an (1)audiovisual or (2)cinematographic work, a (3)work


embodied in a sound recording, a (4)computer program, a (5)compilation of data and other materials or
a (6)musical work in graphic form, irrespective of the ownership of the original or the copy which is the
subject of the rental; (n)

177.5. Public display of the original or a copy of the work;

177.6. Public performance of the work; and

177.7. Other communication to the public of the work.

DEFINITIONS. For the purpose of this Act, the following terms have the following meaning (SECTION
171):

171.3. "Communication to the public" or "communicate to the public" means the making of a work
available to the public by wire or wireless means in such a way that members of the public may access
these works from a place and time individually chosen by them;

171.5. "Public lending" is the transfer of possession of the original or a copy of a work or sound
recording for a limited period, for non-profit purposes, by an institution the services of which are
available to the public, such as public library or archive;

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171.6. "Public performance", in the case of a work other than an audiovisual work, is the recitation,
playing, dancing, acting or otherwise performing the work, either directly or by means of any device or
process; in the case of an audiovisual work, the showing of its images in sequence and the making of the
sounds accompanying it audible; and, in the case of a sound recording, making the recorded sounds
audible at a place or at places where persons outside the normal circle of a family and that family's
closest social acquaintances are or can be present, irrespective of whether they are or can be present at
the same place and at the same time, or at different places and/or at different times, and where the
performance can be perceived without the need for communication within the meaning of Subsection
171.3;

171.8. "Rental" is the transfer of the possession of the original or a copy of a work or a sound recording
for a limited period of time, for profit-making purposes;

171.9. "Reproduction" is the making of one (1) or more copies of a work or a sound recording in any
manner or form (Sec. 41 (E), P.D. No. 49 a);

WORK OF ARCHITECTURE. Copyright in a work of architecture shall include the right to control the
erection of any building which reproduces the whole or a substantial part of the work either in its
original form or in any form recognizably derived from the original: Provided, That the copyright in any
such work shall not include the right to control the reconstruction or rehabilitation in the same style as
the original of a building to which that copyright relates. (n) (SECTION 186)

MORAL RIGHTS: The author of a work shall, independently of the economic rights in Section 177 or the
grant of an assignment or license with respect to such right, have the right (SECTION 193):

193.1. To require that the authorship of the works be attributed to him, in particular, the right that his
name, as far as practicable, be indicated in a prominent way on the copies, and in connection with the
public use of his work;

193.2. To make any alterations of his work prior to, or to withhold it from publication;

193.3. To object to any distortion, mutilation or other modification of, or other derogatory action in
relation to, his work which would be prejudicial to his honor or reputation; and

193.4. To restrain the use of his name with respect to any work not of his own creation or in a distorted
version of his work. (Sec. 34, P.D. No. 49)

BREACH OF CONTRACT. An author cannot be compelled to perform his contract to create a work or for
the publication of his work already in existence. However, he may be held liable for damages for breach
of such contract. (SECTION 194) (Sec. 35, P.D. No. 49)

WAIVER OF MORAL RIGHTS. An author may waive his rights mentioned in Section 193 by a written
instrument, but no such waiver shall be valid where its effects is to permit another (SECTION 195):

195.1. To use the name of the author, or the title of his work, or otherwise to make use of his reputation
with respect to any version or adaptation of his work which, because of alterations therein, would
substantially tend to injure the literary or artistic reputation of another author; or

195.2. To use the name of the author with respect to a work he did not create. (Sec. 36, P.D. No. 49)

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CONTRIBUTION TO COLLECTIVE WORK. When an author contributes to a collective work, his right to
have his contribution attributed to him is deemed waived unless he expressly reserves it. (SECTION 196)
(Sec. 37, P.D. No. 49)

Editing, Arranging and Adaptation of Work. In the absence of a contrary stipulation at the time an
author licenses or permits another to use his work, the necessary editing, arranging or adaptation of
such work, for publication, broadcast, use in a motion picture, dramatization, or mechanical or electrical
reproduction in accordance with the reasonable and customary standards or requirements of the
medium in which the work is to be used, shall not be deemed to contravene the author's rights secured
by this chapter. Nor shall complete destruction of a work unconditionally transferred by the author be
deemed to violate such rights. (SECTION 197) (Sec. 38, P.D. No. 49)

RIGHTS TO PROCEEDS IN SUBSEQUENT TRANSFERS. Droit de suite in Works of Art and Manuscripts
under the Berne Convention (14ter)

1. The author, or after his death the persons or institutions authorized by national legislation, shall,
with respect to original works of art and original manuscripts of writers and composers, enjoy
the inalienable right to an interest in any sale of the work subsequent to the first transfer by the
author of the work.

2. The protection provided by the preceding paragraph may be claimed in a country of the Union
only if legislation in the country to which the author belongs so permits, and to the extent
permitted by the country where this protection is claimed.

3. The procedure for collection and the amounts shall be matters for determination by national
legislation.

SALE OR LEASE OF WORK. In every sale or lease of an original work of (1)painting or (2)sculpture or of
the (3)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. (SECTION 200) (Sec. 31, P.D. No. 49)

WORKS NOT COVERED. The provisions of this Chapter shall not apply to prints, etchings, engravings,
works of applied art, or works of similar kind wherein the author primarily derives gain from the
proceeds of reproductions (SECTION 201) (Sec. 33, P.D. No. 49

American artists and legislators have been actively battling to introduce a national Artist Resale Royalty
for almost half a century. Here is our illustrated introduction.

Droit de suite (right to follow) is the notion that artists, their heirs, and estates should receive an Artist
Resale Royalty (ARR) every time one of their works is subsequently resold. The royalty is typically a small
percentage of a resale (usually around 37%). Supporters of ARRs contend that the practice helps to
support working artists, providing income that can be reinvested into studio rents and materials.

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Although artists have the same copyright protections as other authors, they are often unable to
commercialize their works for profit in the same way.

For example, unlike writers, filmmakers, and musicians, artists dont benefit from derivative or
reproducible income (such as screenplay rights or soundtrack licensing). Most artists only profit from the
initial sale of a work of art. This is because the art industry places a massive premium on uniqueness.

The idea supposedly originates from a complaint by the family of French Realist Jean Francois Millet. In
1889 (14 years after the artists death), the French copper magnate Eugne Secrtan sold Millets
painting LAnglus (185759) for a record breaking 553,000 francs. Millets family was completely
destitute at the time and was horrified by the sale (ironically, the painting depicts two peasants bowed
in prayer).

France was the first country to nationally implement droit de suite (1920). It followed in the wake of a
widely published lithograph by Jean-Louis Forian, which drew popular sympathy to the cause. The
lithograph depicts an artists children gazing at a painting in a shop window with the caption, Un
Tableau de Papa! / one of fathers paintings!

Belgium followed suit in 1921, as did Czechoslovakia in 1926. At present, over 70 countries have
implemented ARR laws, including Australia, the Philippines, and Russia. The European Union
standardized its legislation in 2001.

The United Kingdom partially implemented a resale royalty scheme in 2006, despite loud protestations
from auction houses and some galleries that this would severely damage the market and drive sales
abroad. A subsequent report found that the changes had not negatively impacted the UKs market in
any perceptible way. Two nonprofit agencies, DACS (The Design and Artists Copyright Society) and ACS
(Artist Collecting Society), collect ARRs on behalf of registered members. According to their website,
DACS paid out out over 14 million ($22.5 million) in royalties to 19,000 artists and estates in 2013. They
even occasionally run competitions to encourage artists to sign up.

The US doesnt have a national artist royalty scheme, which puts it in the same company as Canada,
China, Japan, and Switzerland. American artists and legislators have been actively battling to introduce a
national ARR for almost half a century.

In 1971, the legendary curator and publisher (and all-round cool dude) Seth Siegelaub teamed up with
attorney Robert Projansky to create The Artists Reserved Rights Transfer and Sale Agreement (ARRTSA).
When signed by a purchaser, the document entitled artists to 15% of any profits made upon subsequent
resales (it also included provisions for exhibition and reproduction rights). The legality of ARRTSA
remains questionable, but a number of dealers (including Leo Castelli) professed to using the document,
the first of its kind in the US. Consider the contract as a substitute for what is available otherwise:
nothing, Siegelaub wrote.

Between 19762012, California was the only US state to have had an artist resale royalty law. Its genesis
is popularly traced to an eventful evening in 1973, a night renowned artist Robert Rauschenberg
got very angry.

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On October 18, 1973, the collectors and taxi company owners Robert and Ethel Scull held an auction of
their collection at Sothebys Parke-Bernet. The sale was a turning point in the art trade, as it
demonstrated just how lucrative works of contemporary art had become. The Sculls represented a new
breed of collectors who started to view art as an investment asset, a commodity that could be resold for
a huge profit. A lavish catalogue was printed, and heaps of press material celebrated the couples expert
connoisseurship. That night the Sculls sold works by Andy Warhol, Jasper Johns, James Rosenquist, and
Rauschenberg for record sums. A 1958 painting by Rauschenberg entitled Thaw sold for $85,000 (the
Sculls had originally purchased the painting from Rauschenberg for $900).

Rauschenberg made his way through a picket line of disgruntled artists and Scull taxi cab employees
outside the auction, and confronted Robert Scull directly. Their exchange is featured in the documentary
film Americas Pop Collector: Robert C. Scull Contemporary Art at Auction. The footage also appears in
Robert Hughess excellent documentary The Mona Lisa Curse(2008) (around the 24:40 minute mark).

According to Ethel Scull, Rauschenberg punched her husband in the stomach, and the two never spoke
again. Rauschenberg teamed up with James Rosenquist, and their campaigning efforts inspired the
1976 Californias Resale Royalty Act (CRRA).

Under the CRRA, a 5% royalty applies to artworks worth over $1,000 and resold for a gain. The act
stipulates that an artist must be a US citizen or a resident of California for at least two years at the time
of sale.

In October 2011, a group of artists and estates, which included Chuck Close, Laddie John Dill, the Robert
Graham estate, and the Sam Francis Foundation, sued Sothebys, Christies, and eBay, alleging that the
auction houses were failing to pay royalties as provided for under the CRRA. Lawyers for the defendants
argued that the CRRA was unconstitutional, as it purported to regulate transactions taking place outside
the state of California. The judge presiding over the case agreed. The constitutionality of the CRRA
remains unresolved until the Ninth Circuit Court of Appeals rules on the artists appeal.

The three auction companies recently argued to the Ninth Circuit Panel that a rehearing is unnecessary.
Lawyers acting for the companies have pointed to earlier cases concerning commercial regulations on
California activity, including decisions on a foie gras ban and a low carbon fuel standard.

Other failed attempts to introduce ARRs in the US include the Waxman Bill (1978), and the Visual Artists
Rights Amendments of 1986 and 1987.

In 1992, the US Copyright Office published a report advising against the adoption of a national ARR
scheme (though it suggested that Congress could revisit the issue if the European Union successfully
harmonized its own laws).

In 2011, Senator Herb Kohl (D-WI) and Congressman Jerrold Nadler (D-NY) introduced the Equity for
Visual Artists Act. The bill advocated a 7% royalty on works sold at public auction for $10,000 or more.
Had it been enacted, royalties wouldve been split evenly between the author of the work and an
escrow account to support future purchases by nonprofit art museums.

If the US had already adopted a national resale royalty, American artists would currently be receiving
royalty payments from countries with equivalent laws (due to reciprocal agreements such as the Berne

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Convention). This means that American artists have been missing out on potential royalty payments for
quite some time.

In December 2013, the US Copyright Office published a new report which encouraged Congress to
consider legislative action:

The Copyright Office finds no significant legal or policy impediments to adoption of a US resale royalty,
and indeed supports consideration of a a resale royalty right as one option to address the historic
imbalance in the treatment of visual artists Given most artists comparative lack of bargaining power
in relation to auction houses, galleries, and other art market professionals, some level of congressional
involvement may be necessary for these negotiations to achieve meaningful results.

Along with Senators Tammy Baldwin (D-Wisc) and Edward Markey (D-Mass), Congressman Jerrold
Nadler has now put forward the American Royalties Too Act (ART). If passed, the act would require a 5%
royalty on all works of art worth over $5,000 sold at auction (with a maximum royalty payment capped
at $35,000). The act would only apply to auction houses with annual sales of over a million dollars.

The Visual Artists Rights Coalition and the Artists Rights Society are lobbying in favor of the
bill. Christies, Sothebys, and eBay are lobbying against it.

On July 15, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet
discussed the ART Act. The subcommittees chairman, Howard Coble (R-NC), indicated in his opening
remarks that he is not uncomfortable with the notion of a resale royalty. A recording of the hearing is
available at judiciary.house.gov (the hearing begins at the 52:10 minute mark, and Congressman
Nadlers comments begin at 1:05:16).

In her witness testimony to the subcommittee, Karyn Temple Claggett, the associate register of
copyrights and director of policy and international affairs for the US Copyright Office, described resale
royalties as an issue of fundamental fairness.

There is a compelling international trend that makes US review of the resale royalty right timely and
important, Claggett testified.

At present, the ART Act only has 15 cosponsors. Its therefore essential that artists and the art-loving
public express greater support for the bill. The debate on resale royalties should be taking place
between friends, colleagues, and on social media not just between lawyers and politicians.

To express your support of the ART Act, write a letter to your states senators and representatives. If
that sounds too arduous, reach out to them via the contact forms on their websites. Its easy. Help
spread the word. Five minutes of your time might just spur a lifetime of change for artists.

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