Artist resale right: an interpretation of new media art as original works of art in Kenya
Ngurumi, Andrew Waithumbi
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Artist resale right is intended to ensure that visual artists whose works are resold in the secondary market of art share in the increased value of their artwork. Visual artists share in the increased value of their work through receiving artist resale royalties. The resale royalties are a proportion of the price of the works of art in the secondary market. In order to ensure that visual artists in Kenya receive artist resale royalties, the Copyright (Amendment) Bill, 2017 (“the Bill”) set out the provisions for grant of artist resale right. The Bill, provides that artworks eligible for artist resale right are original works of art. A nonexhaustive list on what original works of arts entail was initially set out but following further amendments this list was excluded. The Bill now provides that original works of art created by the artist or under their authority are eligible for artist resale right. At the same time the Bill provides that works of art produced in identical copies by artists or under their authority are not eligible for artist resale right. This implies that original works of art are defined as the one and only physical embodiment, as used traditionally in artist resale right legal frameworks. Thus visual artists creating identical copies of work of art are not able to receive royalties. This research investigates whether the lack of a definition of “original works of art” in the artist resale right Bill will deny resale royalties to artists making new media art. A basis for exclusion of their works is that they exist in multiple identical copies. In so doing the finding of this project reveals that “original works of art” ought to be defined broadly as works created by the artist himself or under his authority within artist resale right legislation. A redefinition of “original works of art” will help ensure visual artists creating new media art will receive resale royalties.