The first amendment moved during clause-by-clause consideration of Bill C-11 was an NDP amendment to introduce resale rights (See March 12 minutes for exact wording). This is a policy that the Liberal party has supported in the past. The chair ruled the amendment inadmissible as it was a new concept that is beyond the scope of Bill C-11.
Before proponents of the resale right take that as a failure, the process needs to be looked at more closely. This is also a good time to more publicly discuss the policy being proposed. Multiple bills on the same topic are not admissible within the same session of parliament. When the chair ruled the amendment inadmissible, he was effectively also ruling that tabling that policy as a private members bill would be admissible within this session.
Would an art resale right be good policy?
I understand the desire of visual artists for this type of policy. Unlike other forms of creativity which make money based on royalties, the business side of visual arts such as sculpture and painting operates very differently. It is the originals or very limited copies (where copies applicable at all) which have value, and it is in the sale of the art to a buyer where money is made. When such unique art is later resold it makes sense as a matter of policy that the artist would receive some percentage of the resale value, just as other creators might make royalties or residuals for ongoing wider distribution, communication or performances of other types of creativity.
Is the Copyright Act the best place for this policy? This is where I believe the issue gets trickier.
I believe if studied properly we would determine that the private copying regime for music takes money out of the pockets of musicians. While it may bring in tens of dollars from Canadians, its fundamentally confusing nature leads Canadians to carry out activities that reduce revenues to musicians by hundreds of dollars. Canadians don't believe that they should have to pay for private activities, and presume that the levy pays for very different things.
On the other hand, I have observed wide support for government funding programs based on activities not regulated by copyright. An example is the public lending of books by libraries which has a Public Lending Right funding program.
There has been an artist resale right in other countries for quite some time, and for some they are controversial. Given this existing experience, I would like to see peer reviewed studies on the question of whether this policy helps or hinders the actual artists. I realize collective societies will benefit, but the interests of collectives are not always aligned with the interests of the copyright holders which they collect money for. Collective management of rights is only one business model among many for some creators, and impositions of collective societies can wipe out potentially more beneficial competing choices.
One of the other problems relates to one of the general failings of copyright policy which has been made worse in recent decades with the over-use of the confusing term "intellectual property". This is the treatment of very different scenarios as if they have more in common than they do. Patents on pharmaceuticals are very different than patents on business methods, patents have little in common with copyright and each has less in common with trademark law, copyright on literary works are very different than sculpture, and even though both are literary works there is little in common between a fiction novel and a computer operating system.
While having a resale right for a sculpture or painting might be found by a peer reviewed study to be beneficial, the same policy would cause a lot of problems for other creativity such as software. Collective societies in general, regardless of the specific right under discussion, would wipe out the wide variety of business model options that currently exist for software. This is also not a software issue, as there are many other works under copyright where compulsory collective societies would be a failure.
I worry that no matter how clear the language we put in the Copyright Act is, that adding a resale right will lead some to propose that it be applied to all creativity covered by copyright. The self-called "Creators Rights Coalition" and others representing a small subset of copyright holders have already proposed extending the private copying regime to all creativity covered by copyright, something that would cause considerable harm to a large number of creators. This belief that all creativity should be treated the same is very harmful to creators, but is unfortunately common for those who have not given adequate thought to the complexity of copyright, creativity and the full spectrum of business models.
One way to avoid all the concerns is to not put the resale right policy in the Copyright Act itself. We could create a tax on the resale of visual art which is earmarked to be distributed to the specific artist by an accountable and transparent government agency. This would have some of the features of the existing Public Lending Right policy which I believe would make a good replacement of the existing private copying regime. The largest difference is that we know exactly whose paintings are being resold, so there should be no uncertainty in knowing who to distribute the revenue to. This is not the case for private copying given any attempt to track or regulate these private activities causes far too much harm to the rights of Canadians.