Tuan.
Tran Anh and Tran Kien.
AuThe ArtistAos Resale Right: Global Perspectives and VietnamAos Path to Protection under the EVFTA,Ay Hasanuddin Law Review 11 no.
: 183-208.
DOI: 10.
20956/halrev.
HasanuddinLawReview Volume 11 Issue 2.
August 2025 P-ISSN: 2442-9880.
E-ISSN: 2442-9899
This work is licensed under a Creative Commons Attribution 4.
0 International License The ArtistAos Resale Right: Global Perspectives and VietnamAos Path to Protection under the EVFTA Tran Anh Tuan1.
Tran Kien2 1 Faculty of Private Law.
University of Law Ae Vietnam National University.
Hanoi.
Vietnam.
E-mail: anhtuan.
ulaw@gmail.
2 Faculty of Private Law.
University of Law Ae Vietnam National University.
Hanoi.
Vietnam.
E-mail: trankien@vnu.
Abstract: The artistAos resale right, enabling visual artists to receive royalties from secondary market sales, is a pivotal intellectual property mechanism with varied global adoption.
This article traces its historical evolution from early 20th-century legislation to its inclusion in international frameworks, contrasting the European Union and United KingdomAos harmonized approaches with the United StatesAo rejection due to differing copyright philosophies.
It examines the resale right provisions in a new-generation free trade agreement, analyzing VietnamAos current legal gap under its intellectual property framework and the feasibility of incorporation.
Using jurisprudential, comparative, and empirical methods, the study assesses legal principles, international benchmarks, and VietnamAos art market readiness.
The article evaluates arguments for and against the resale right, highlighting its role in promoting artist equity and creative incentives against concerns of market distortion and administrative burdens.
VietnamAos potential legal harmonization through this agreement offers a novel pathway to integrate global intellectual property By proposing solutions to legal, cultural, economic, and political challenges, this research significantly contributes to comparative law and developing country legal harmonization discourse, providing insights for jurisdictions navigating intellectual property integration in trade agreements.
Keywords: Resale Right.
Droit De Suite.
Intellectual Property Rights.
Civil Law.
Common Law.
Comparative Introduction Intellectual property, particularly copyright, remains a cornerstone of global legal discourse, with the artistAos resale right .
roit de suit.
emerging as a critical mechanism to safeguard the economic interests of artists.
Works of art means works of graphic or plastic art, sometimes referred to as Visual arts encompassing painting, sculpture, photography, and design, have evolved from prehistoric origins to indispensable cultural 1 Yet, artists often receive minimal compensation for resales, particularly in jurisdictions lacking resale right protections.
The resale right addresses this inequity by enabling artists or their heirs to benefit from the appreciating value of their works in secondary markets.
First enacted in France in 1920 and later enshrined in the Berne Convention for the Protection of Literary and Artistic Works of 1886 .
s revised in 1.
, the resale right entitles artists to royalties from subsequent sales of their original artworks, excluding the 1 Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art .
OJ L272/32, art 2.
"Visual Arts," Britannica, accessed August 20, 2024, https://w.
com/browse/Visual-Arts.
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initial transfer.
2 This right has garnered significant attention from legislators, scholars, and artists worldwide, reflecting its growing importance in protecting creative The EU-Vietnam Free Trade Agreement (EVFTA), signed on 30 June 2019 and effective from 1 August 2020, incorporates provisions on the resale right, marking a pivotal development for VietnamAos integration into global intellectual property Free Trade Agreements (FTA.
facilitate the reduction of tariff and non-tariff barriers to foster unified markets for goods and services.
The EVFTA, a new-generation FTA, surpasses traditional agreements like the Vietnam-Japan EPA by encompassing commitments in trade, services, investment, and intellectual property, with nearcomplete tariff elimination and stringent standards.
The inclusion of the resale right in Article 12.
15 of the EVFTA underscores its significance for Vietnam, a nation yet to incorporate this right into its domestic law.
On the other hand, the United KingdomAos exit from the EU raised questions about its application of the EVFTA.
however, the UKVietnam FTA (UKVFTA), signed concurrently, mirrors EVFTA terms, ensuring continuity of resale right provisions.
Despite its growing significance globally, the artistAos resale right has received limited attention from Vietnamese legal scholars in particular and ASEAN countries in general with scant academic or practical exploration of its unique characteristics and potential incorporation into a countryAos domestic legal framework.
The authors of this article appear to be among the first in Vietnam to address this notable gap.
In 2022, they published a doctrinal study examining the nature of the resale right and its compatibility with VietnamAos intellectual property regime.
While primarily doctrinal and normative in approach, this foundational work has enabled the authors to further investigate the issue through interdisciplinary and cross-jurisdictional analyses, as presented in this article.
This article examines the resale right within the EVFTA, structured in several parts: an overview of its historical and international dimensions, the EU.
UK, and US approaches.
EVFTA regulations.
VietnamAos current situation, criticisms for and against the right, and arguments for its codification into Vietnamese law, offering insights for other jurisdictions most notably ASEAN countries.
This studyAos urgency stems from VietnamAos need to align with global intellectual property standards under the EVFTA, addressing a critical gap in artist protections.
Its strengths lie in a pioneering interdisciplinary analysis, blending jurisprudential, comparative, and 2 J.
Duchemin.
Le Droit de Suite des Artistes (Paris 1.
Berne Convention for the Protection of Literary and Artistic Works .
dopted 9 September 1886, revised 24 July 1.
art 14ter.
3 VCCI.
AuCy nhng loi FTA nyo?,Ay VCCI, 2019, accessed August 20, 2024, https://vcci.
4 Secretary of State for International Trade.
AuContinuing the United KingdomAos Trade Relationship with the Socialist Republic of Vietnam,Ay Department for International Trade, 2021, accessed August 20, 2024, https://w.
5 Trn.
Kiyn, and Trn Anh Tuun.
AuQuyAn byn li ca tyc gi tyc phm nghN thut theo EVFTA vy kh nEng noi lut hoy ViNt Nam.
Ay Tp chy Lut hsc, no.
: 40Ae55.
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: 183-208
empirical methods to propose actionable solutions for VietnamAos art market.
Significant for its novel focus on VietnamAos legal harmonization, it fills a scholarly void in resale right discourse, particularly for ASEAN nations.
Unlike prior studies focusing on Western jurisdictions, this article uniquely positions Vietnam within global intellectual property debates, offering a model for emerging economies such as ASEAN countries, making it a vital contribution worthy to global scholarship.
Method This study employs a multifaceted methodology to explore the incorporation of the artistAos resale right into VietnamAos intellectual property law under the EU-Vietnam Free Trade Agreement (EVFTA).
Combining jurisprudential, comparative, and empirical legal analyses, the research examines the legal, economic, and practical dimensions of the resale right.
This approach aims to clarify its legal nature, assess its compatibility with VietnamAos legal framework, and propose strategies for integration.
The methodology aligns with the studyAos goal of evaluating the feasibility and legal techniques for adopting the resale right in Vietnam.
The jurisprudential analysis investigates the legal principles underlying the resale right, focusing on the rights and obligations of authors, heirs, and art market professionals.
applies the principle of strict liability to assess whether violations of the resale right constitute tortious acts and how liability should be attributed.
Primary legal texts, such as Article 12.
15 of the EVFTA and Article 14ter of the Berne Convention, are analyzed to define the scope and non-mandatory nature of the resale right.
Secondary sources, including legal commentaries, contextualize the right within intellectual property law, exploring debates on whether it is a moral or economic right.
This method ensures compatibility with VietnamAos Intellectual Property Law 2005 and Civil Code 2015, highlighting ethical considerations in protecting artistsAo rights.
The comparative legal analysis examines resale right implementation in the European Union, the United Kingdom, and the United States to identify best practices for Vietnam.
The EUAos Directive 2001/84/EC provides a harmonized framework, while the UKAos postBrexit retention of resale rights demonstrates economic benefits.
The US, which does not recognize the right, highlights risk of non-adoption.
Key aspects analyzed include definitions of Auoriginal artwork,Ay royalty percentages, and post-death rights, using primary documents like EU directives and UK copyright law, alongside judicial cases .
Salvador Daly case C-518/.
Secondary sources, such as UK Intellectual Property Office reports, provide economic data.
This comparison informs VietnamAos potential adoption of precise regulations tailored to its legal system.
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The empirical analysis assesses the practical feasibility of incorporating the resale right in VietnamAos art market.
It uses data from auction houses .
SothebyAos Hong Kon.
and media reports on sales like Mai Trung ThuAos AuPortrait of Miss PhuongAy to evaluate market The Copyright Office of VietnamAos perspective on market limitations and institutional gaps is considered.
UK studies, such as those by Graddy and Banternghansa, show increased art sales post-resale right implementation, offering lessons for VietnamAos nascent market.
This method evaluates the need for institutional frameworks, like collecting societies, to administer royalties, ensuring realistic recommendations.
Data are sourced from international treaties (EVFTA.
Berne Conventio.
, national laws, judicial decisions, and secondary materials like academic articles and media reports.
Sources are cross-verified for reliability, prioritizing recent and authoritative materials.
The analytical framework integrates jurisprudential, comparative, and empirical methods to address the resale rightAos legal nature, international benchmarks, and VietnamAos market readiness.
This mixed-method approach captures the complexity of the resale right across legal, economic, and cultural domains.
However, the study is limited by its focus on three major jurisdictions, potentially missing global diversity, and by sparse data on VietnamAos art market.
Cultural attitudes toward intellectual property are underexplored.
These are mitigated by using authoritative sources and proposing flexible legal techniques.
This methodology provides a robust framework for informed policy recommendations on incorporating the resale right into Vietnamese law.
The Origin and Historical Development of the Resale Right The artistAos resale right, commonly termed droit de suite, is an inalienable intellectual property right granting authors of original artworks royalties from subsequent sales, excluding the initial transfer.
6 Defined in the Berne Convention, it enables artists or their heirs to receive a percentage of the resale price in public transactions, such as auctions, thereby addressing economic disparities faced by visual artists compared to other creators like writers or musicians.
7 Originating in an 1893 article by Albert Vaunois, the term droit de suite initially related to real property but was adapted to ensure artists benefit from their worksAo appreciating value without reclaiming ownership.
8 This right is crucial for artists, whose works are less reproducible, and for their heirs, who bear costs of preservation and management post-mortem.
6 Berne Convention, art 14ter.
Duchemin.
Le Droit de Suite, 35.
7 Directive 2001/84/EC, art 1.
Franklin Feldman and Stephen E.
Weil.
AuDroit de Suite,Ay in Art Works: Law.
Policy.
Practice (New York: Practicing Law Institute, 1.
, 81.
8 De Pierredon-Fawcett.
The Droit de Suite in Literary and Artistic Property: A Comparative Law Study (Columbia University Law School 1.
9 US Copyright Office.
Droit de Suite: The ArtistAos Resale Royalty .
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The historical roots of the resale right trace to the plight of Jean-Franyois MilletAos family, whose painting The Angelus .
old for $100 in 1.
fetched $150,000 in 1889, benefiting dealers while his family remained impoverished.
10 This injustice prompted France to enact the resale right in 1920 under Article L-122-8 of the Intellectual Property Code, applicable to public auctions.
11 Formalized globally in the Berne ConventionAos 1971 revision (Article 14te.
available to the original works of art and original manuscripts of writers and composer, the right remains optional, applying only in states with domestic 12 By 2001, the EUAos Directive 2001/84/EC mandated resale rights across member states, harmonized by 2006, covering original artworks like paintings and sculptures albeit with a narrower scope than the Berne convention.
13 In contrast, the US has resisted adoption, citing utilitarian copyright principles that prioritize economic exclusivity over royalties, as seen in the failed California Resale Royalty Act .
7Ae2.
This rejection limits reciprocal benefits for US artists abroad, underscoring global 15 By 2018, 70 countries recognized the resale right, reflecting its growing significance in protecting visual artistsAo economic interests.
The European UnionAos Approach: Pro - ArtistAos Resale Right The European UnionAos adoption of the artistAos resale right represents a cornerstone of its intellectual property framework, ensuring that visual artists and their heirs benefit economically from the resale of their original artworks.
17 Enshrined in Directive 2001/84/EC, enacted on 27 September 2001 and harmonized across EU member states by 1 January 2006, the resale right establishes a mandatory regime for royalties on sales subsequent to the initial transfer, addressing the economic vulnerabilities of visual artists whose works appreciate significantly in secondary markets.
18 This directive, a pivotal step in harmonizing copyright protections across the EU, reflects a balance between moral and economic considerations, distinguishing the EUAos approach from jurisdictions like the United States, where such rights remain unrecognized due to utilitarian copyright 19 The EUAos framework, rooted in the Berne ConventionAos optional provision (Article 14te.
, transforms the resale right into a binding obligation, offering a model for 10Alexander Bussey.
AuThe Incompatibility of Droit de Suite with Common Law Theories of Copyright,Ay Fordham Law Review 81 .
: 1098.
11Legifrance.
Intellectual Property Code, art.
L-122-8, accessed August 20, 2024, https://w.
12 Berne Convention, art 14ter.
13 Directive 2001/84/EC .
14US Copyright Office.
Resale Royalties: An Updated Analysis .
, 15Ae18.
15 Directive 2001/84/EC, art 2.
16US Copyright Office.
Resale Royalties, , 10.
17Catherine Jewell.
AuThe ArtistAos Resale Right: A Fair Deal for Visual Artists,Ay WIPO Magazine, 2017, accessed August 20, 2024, https://w.
18Anthony OAoDwyer.
AuThe ArtistsAo Resale Right Directive 2001/84/EC: A Means of Targeted Intervention for Visual Artists,Ay Wiley, 2021, accessed August 20, 2024, https://onlinelibrary.
com/doi/epdf/10.
1111/jwip.
Directive 2001/84/EC.
19 US Copyright Office.
Droit de Suite, 16.
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jurisdictions like ASEAN countries particularly Vietnam, a signatory to the EVFTA, which includes similar provisions.
The Directive defines original artworks as works of graphic or plastic art, such as paintings, drawings, sculptures, collages, ceramics, photographs, and tapestries, created by the artist or under their authority in limited numbers, typically marked by signatures or numbering to ensure authenticity.
21 This precise definition excludes manuscripts of writers and composers as found in the Berne Convention, a deliberate choice to address the financial imbalance between visual artists and other creators, as literary or musical works are more readily reproducible, generating royalties through mass distribution.
The EUAos focus on visual arts acknowledges the unique market dynamics where artworks, often singular or limited, appreciate in value post-creation, benefiting intermediaries like auction houses or galleries rather than artists.
23 The DirectiveAos scope ensures that only professional transactionsAithrough salerooms, galleries, or art dealersAiare subject to royalties, safeguarding the rightAos application in formal secondary markets.
A critical aspect of the EUAos approach is the royalty obligation.
The Directive mandates that royalties, calculated as a percentage of the net resale price, be paid to the artist or their heirs, with the seller typically bearing this liability.
25 However, member states retain flexibility to assign this obligation to buyers or intermediaries, or even share it, fostering adaptability to national legal traditions.
26 For instance, in France, sellers may contractually shift the royalty payment to buyers, as upheld in a 2009 French Supreme Court ruling involving ChristieAos France, provided such terms are clearly stipulated in sales 27 This flexibility mitigates concerns about market distortions, though debates persist about its impact on competition, with some auction houses arguing that buyer-paid royalties increase transaction costs.
28 The Directive sets a minimum resale price threshold of C3,000 to ensure that only significant transactions trigger royalties, balancing administrative feasibility with artist benefits.
29 An exception allows member states to exempt resales within three years of the initial sale if the price does not exceed C10,000, protecting new artists whose works may not yet command high values.
20 Berne Convention,art 14ter.
EU-Vietnam Free Trade Agreement .
igned 30 June 2019, entered into force 1 August 2.
21 Directive 2001/84/EC art 2.
22 US Copyright Office.
Droit de Suite, 10.
23 US Copyright Office.
Droit de Suite, 12.
24 Directive 2001/84/EC art 1.
25 Directive 2001/84/EC art 1.
26Court of Justice of the European Union.
Case C-41/14.
ChristieAos France SNC v Syndicat national des antiquaires.
February 26, 2015, accessed August 20, 2024, https://curia.
eu/juris/liste.
jsf?&num=C-41/14.
27 Gareth Harris.
AuChristieAos France Wins the Artist Resale Royalty Battle,Ay The Art Newspaper.
December 31, 2018, accessed August 20, 2024, https://w.
com/2018/12/31/christies-france-wins-the-artist-resaleroyalty-battle.
28 Directive 2001/84/EC art 3.
29 Directive 2001/84/EC art 3.
30 Directive 2001/84/EC art 3.
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The royalty structure is tiered, with percentages decreasing as the resale price increases, ranging from 4% for sales up to C50,000 to 0.
25% for sales above C500,000, capped at C12,500 to prevent excessive burdens on high-value transactions.
31 This cap addresses concerns, particularly in major art markets like the UK, that high royalties could drive sales to non-recognizing jurisdictions like the US or Switzerland, where no such obligations 32 The US Copyright OfficeAos 2013 report highlights this competitive disadvantage, noting that the absence of resale rights in the US creates an attractive market for sellers seeking to avoid royalties, potentially undermining EU markets.
33 Yet, empirical evidence, such as a 2008 UK Intellectual Property Office study, demonstrates that the UK art market grew by 238% post-2006, suggesting that the resale right does not significantly deter market activity.
The Directive extends protection for 70 years post-mortem, aligning with the EUAos general copyright term under Directive 93/98/EEC, ensuring that heirs benefit from the appreciating value of artworks.
35 This provision addresses the ongoing costs of managing an artistAos estate, such as preservation and restoration, a burden highlighted in the 1992 US Copyright Office report as a significant burden for heirs in jurisdictions lacking resale 36 However, variations exist across member states regarding post-mortem The case of Fundaciyn Gala-Salvador Daly v ADAGP (C-518/.
illustrates this, where French law reserved resale royalties for statutory heirs, excluding testamentary legatees, highlighting the DirectiveAos flexibility in allowing national discretion on inheritance rules.
37 Such variations underscore the need for clear domestic regulations, a consideration relevant for Vietnam as it contemplates incorporating EVFTAAos resale right provisions.
The Directive also ensures access to information, allowing artists or their representatives to request necessary details from art market professionals within three years of a resale to secure royalty payments.
38 This provision balances privacy concerns with the artistAos right to fair compensation, avoiding overly intrusive inquiries.
39 For non-EU artists, the Directive applies reciprocity: only those from countries recognizing the resale right for EU artists can claim royalties in the EU, a principle rooted in the Berne ConventionAos optional 31 Directive 2001/84/EC art 4.
32 US Copyright Office.
Resale Royalties, 17.
33 US Copyright Office.
Resale Royalties, 20.
34 Katy Graddy.
Noah Horowitz, and Stefan Szymanski.
AuA Study into the Effect on the UK Art Market of the Introduction of the ArtistAos Resale Right,Ay UK Intellectual Property Office, 2008.
35 Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights .
OJ L290/9, art 1.
36 US Copyright Office.
Droit de Suite, 15.
37Court of Justice of the European Union.
Case C-518/08.
Fundaciyn Gala-Salvador Daly and Visual Entidad de Gestiyn de Artistas Plysticos (VEGAP) v Sociyty des auteurs dans les arts graphiques et plastiques (ADAGP) and Others.
April 15, 2010, accessed July 30, 2025, https://curia.
eu/juris/liste.
jsf?language=en&num=C-518/08.
38 Directive 2001/84/EC art 9.
39 Directive 2001/84/EC art 9.
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40 The US reports emphasize this reciprocity challenge, noting that American artists are excluded from EU royalties due to the USAos non-recognition, a disadvantage mirrored for EU artists in the US market.
41 Artists habitually resident in an EU member state, regardless of nationality, may also benefit, promoting inclusivity within the EUAos art The United Kingdom and the United States: Against and Compromise The artistAos resale right represents a critical intersection of intellectual property law and economic policy, yet its adoption varies significantly across jurisdictions, as exemplified by the contrasting approaches of the United Kingdom and the United States.
The UK, initially resistant due to its common law tradition, incorporated the resale right in 2006 under the EUAos Directive 2001/84/EC, retaining it post-Brexit to balance artist protections with market dynamics.
43 In contrast, the US has consistently rejected the resale right at the federal level, rooted in a utilitarian copyright framework that prioritizes exclusivity over ongoing royalties, creating global disparities in artist compensation.
44 These divergent approaches, shaped by legal, philosophical, and economic considerations, offer valuable lessons for other jurisdictions like Vietnam, which, under the EVFTA, must contemplate integrating the resale right into its domestic law.
45 This section examines the UKAos adoption and the USAos rejection of the resale right, analyzing their legal frameworks, economic impacts, and implications for international art markets.
The UKAos integration of the resale right reflects a pragmatic adaptation of its common law copyright tradition to EU mandates, balancing artist protections with market concerns.
Historically, the UKAos common law system, which emphasizes economic exclusivity over moral rights, resisted the resale right, viewing it as a continental concept misaligned with market-driven principles.
46 However, as an EU member state, the UK was obliged to implement Directive 2001/84/EC, which mandated royalties for artists on resales of original artworks in professional markets, such as auctions or galleries.
47 Effective from 2006, the UK incorporated the resale right into its Copyright.
Designs and Patents Act 1988, setting a minimum resale price threshold of C1,000 and capping royalties at C12,500, consistent with the DirectiveAos tiered structure .
% for sales up to C50,000, declining to 0.
25% for sales above C500,.
40 Berne Convention art 14ter.
Directive 2001/84/EC art 7.
41 US Copyright Office.
Droit de Suite,20Ae21.
42 Directive 2001/84/EC art 7.
43 Directive 2001/84/EC.
44 US Copyright Office.
Droit de Suite,16.
45 EU-Vietnam Free Trade Agreement art 12.
46 Bussey.
AuIncompatibility of Droit de Suite,Ay, 1100.
47 Shira Perlmutter.
AuResale Royalties for Artists: An Analysis of the Register of CopyrightsAo Report,Ay Journal of the Copyright Society of the U.
: 284.
48 Copyright.
Designs and Patents Act 1988, s 178.
DACS.
AuArtistAos Resale Right,Ay DACS, 2019, accessed August 20, 2024, https://w.
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: 183-208
The UKAos implementation faced significant opposition from art market stakeholders, particularly auction houses and dealers, who argued that the resale right functions as a tax on buyers, increasing transaction costs and potentially driving sales to nonrecognizing jurisdictions like the US or Switzerland.
49 Critics contended that the right disproportionately benefits established artists, as only works resold in secondary marketsAitypically those by well-known creatorsAitrigger royalties.
50 For example, at the C1,000 threshold, artists receive approximately C35 after a 15% commission to collecting societies like the Design and Artists Copyright Society (DACS), a sum deemed negligible by detractors but significant for emerging artists reliant on such income for materials or 51 Supporters, however, argue that these royalties, however modest, reinforce artistsAo economic stake in their worksAo appreciating value, aligning with the moral underpinning of droit de suite as a recognition of creative contribution.
Post-Brexit, the UK government committed to preserving the resale right, replacing references to the European Economic Area with the UK in its copyright legislation, ensuring continuity of entitlements.
53 This retention defied expectations of repeal, given the UKAos historical skepticism and the absence of EU obligations.
Empirical evidence supports this decision: a 2008 UK Intellectual Property Office study found that the art market grew by 238% post-2006, with the number of works sold increasing from 22,613 to 29,538, and average prices rising from A21,000 to A41,000.
54 Further studies, such as Graddy et al.
and Banterghansa and Graddy .
, confirmed that the resale right did not deter market growth, with the UK outperforming non-recognizing markets like the US, which saw a 141% growth rate in the same period.
55 These findings refute claims that royalties drive sales overseas, suggesting that the resale right enhances market stability by fostering transparency and artist engagement.
The UKAos experience highlights practical challenges and solutions.
Collecting societies like DACS play a pivotal role in administering royalties, ensuring efficient distribution while mitigating administrative burdens on artists.
56 However, the low royalty threshold (C1,.
and commission deductions limit benefits for emerging artists, whose works 49 Ivan Macquisten.
AuShould Post-Brexit UK Get Rid of the ArtistAos Resale Right?,Ay The Art Newspaper, 2021, accessed August 20, 2024, https://w.
50 Christopher Sprigman and Guy Rub.
AuResale Royalties Would Hurt Emerging Artists,Ay Artsy, 2018, accessed August 20, 2024, https://w.
51 ArtistsAo Collecting Society.
AuHow Does Brexit Affect the ArtistAos Resale Right?,Ay ArtistsAo Collecting Society, 2021, accessed August 20, 2024, https://artistscollectingsociety.
org/news/how-does-brexit-affect-the-artists-resale-right/.
52 Jack Hutchinson.
AuIs Anything Wrong with the ArtistAos Resale Right?,Ay A-N, 2012, accessed August 20, 2024, https://w.
a-n.
53 DACS.
AuCopyright Uncovered.
Brexit Update: What Will Happen to Copyright and ArtistAos Resale Right?,Ay DACS, 2019, accessed August 20, 2024, https://w.
54 Chanont Banternghansa and Kathryn Graddy.
AuThe Impact of the Droit de Suite in the UK: An Empirical Analysis,Ay Journal of Cultural Economics 35, no.
: 81.
55 Banternghansa and Graddy.
AuImpact of the Droit de Suite,Ay 81.
56 DACS.
AoCopyright Uncovered.
Brexit UpdateAo P-ISSN: 2442-9880.
E-ISSN: 2442-9899
rarely enter secondary markets.
Additionally, the rightAos focus on secondary sales means that young artists, reliant on primary market sales, may see little immediate benefit, a concern echoed in debates about market fairness.
57 Nevertheless, the UKAos retention of the resale right post-Brexit underscores its perceived value, offering a model for jurisdictions like Vietnam to balance artist protections with market vitality.
In stark contrast, the United States has steadfastly rejected the resale right at the federal level, rooted in a utilitarian copyright philosophy that prioritizes economic efficiency and exclusivity over ongoing artist benefits.
The US ConstitutionAos copyright clause (Article 1.
Section .
empowers Congress to promote the progress of science and arts by securing exclusive rights for limited periods, a principle articulated in Fox Film Corp v Doyal as incentivizing innovation through market-driven exclusivity.
58 This utilitarian framework, emphasizing wealth maximization, views resale royalties as a distortion that reduces initial sale prices and seller profits in secondary markets, as argued in the US Copyright OfficeAos 1992 and 2013 reports.
59 These reports contend that visual artworks, unlike literature or music, require significant technical skill to reproduce, diminishing the need for additional protections like resale rights, as copying does not threaten artistsAo economic incentives.
The USAos resistance is further evidenced by the failure of state-level initiatives, most notably the California Resale Royalty Act of 1977, which mandated a 5% royalty on resales of artworks valued over $1,000, payable to artists or their heirs for 20 years postmortem.
61 Enacted to address inequities like those faced by artists whose works appreciated significantly after initial sales, the Act faced legal challenges and was declared unconstitutional in 2018 by the Ninth Circuit Court of Appeals for conflicting with federal copyright lawAos first-sale doctrine, which limits control over a work after its initial sale.
62 The US Copyright OfficeAos 2013 report highlights additional concerns: resale royalties could deter collectors from purchasing artworks, fearing future royalty obligations, and increase administrative costs for auction houses, potentially driving sales to jurisdictions without such obligations.
The absence of resale rights in the US creates significant global disadvantages, particularly under the Berne ConventionAos reciprocity principle (Article 14te.
64 US artists cannot claim royalties in recognizing jurisdictions like the EU or UK unless their home country 57 Macquisten.
AuShould Post-Brexit UK.
Ay 58 Fox Film Corp.
Doyal, 286 U.
123, 127Ae28 .
Carole M.
Vickers.
AuThe Applicability of the Droit de Suite in the United States,Ay Boston College International and Comparative Law Review 3 .
: 433.
59 US Copyright Office.
Droit de Suite 16.
US Copyright Office.
Resale Royalties 16Ae17.
60 US Copyright Office.
Resale Royalties 18.
61 US Copyright Office.
Resale Royalties 15.
62Close v.
SothebyAos.
Inc.
No.
16-56234 .
th Cir.
Bridgeman Art Library.
Ltd.
Corel Corp.
, 36 F.
Supp.
(S.
63 US Copyright Office.
Resale Royalties: An Updated Analysis,17.
Rub.
AuUnconvincing Case.
Ay 64 Berne Convention art 14ter.
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: 183-208
adopts the right, nor can foreign artists claim royalties for works sold in the US.
65 For example, a French artist selling at a US auction house receives no royalties, just as an American artist selling in France is excluded, a point emphasized in the 1992 US Copyright Office report as a barrier to international equity.
66 Proposals to introduce federal resale rights, such as the American Royalties Too (ART) Act, have repeatedly failed, with opponents arguing that royalties benefit only successful artists and burden the art market 67 The 2013 report notes that major US auction houses, like SothebyAos, expressed concerns that royalties could shift high-value sales to markets like Hong Kong, where no resale rights apply.
Despite these objections, the US reports acknowledge potential benefits.
The 1992 report highlights that resale rights address the financial imbalance between visual artists and other creators, whose works generate royalties through reproduction.
69 The 2013 report concedes that royalties could support emerging artists, though it argues that the USAos robust primary art market reduces the urgency for such protections.
70 Critics like Sprigman and Rub argue that resale rights may lower initial sale prices, as buyers anticipate future royalty obligations, a concern less evident in the UKAos experience, where market growth persisted post-adoption.
For and Against the Protection of Resale Rights: That Is the Problem It is often argued and positioned in the international and comparative law scholarship that Vietnam and other concerning countries such as ASEAN can learn from the EU and UKAos efficient collecting societies, which streamline royalty distribution, advancing crossborder legal development.
These mechanisms exemplify transnational intellectual property law norms diffusion through centralized administration.
Conversely, the USAos resistance underscores the risk of non-adoption, isolating artists from global royalty benefits due to reciprocity failures in international frameworks.
Interested countries should establish similar societies to implement the resale right, aligning with free trade agreement obligations.
This approach fosters harmonization, positioning related countries within global intellectual property norms while avoiding the USAos isolation in transnational legal discourse, enhancing its integration into international creative However, as the following discussions will show, this is easier said than done.
65 US Copyright Office.
Droit de Suite, 20.
66 US Copyright Office.
Droit de Suite, 20Ae21.
67 Laurel Wickersham Salisbury.
AuItAos Not That Easy: Artist Resale Royalty Rights and The ART Act,Ay Center of Art Law, 2019, accessed August 20, 2024, https://w.
68 US Copyright Office.
Droit de Suite, 17.
69 US Copyright Office.
Resale Royalties, 10Ae12.
70 US Copyright Office.
Resale Royalties, 16.
71 Sprigman and Rub.
AuResale Royalties.
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The artistAos resale right has sparked significant debate across jurisdictions, particularly in the EU.
UK, and US, reflecting divergent legal philosophies and economic priorities.
Enshrined in the EUAos Directive 2001/84/EC and adopted by the UK, the resale right grants visual artists royalties on secondary market sales of their original artworks, aiming to address economic inequities.
72 In contrast, the US has rejected the right at the federal level, citing its incompatibility with utilitarian copyright principles.
73 These contrasting approaches highlight a spectrum of arguments for and against the resale right, encompassing moral, economic, and practical considerations.
Proponents argue that it ensures artist equity, fosters creative incentives, and aligns with global standards, while critics contend it distorts art markets, imposes administrative burdens, and disproportionately benefits established artists.
The EU and UKAos efficient collecting societies and market growth post-resale right adoption highlight the value of robust administrative systems for VietnamAos integration into global trade frameworks.
Conversely, the USAos non-adoption underscores risk of isolation from international royalty benefits due to reciprocity failures.
Vietnam should establish collecting societies and adopt phased implementation to address market distortion concerns.
These lessons, emphasizing harmonized norms and enforcement, could guide ASEAN jurisdictions like Indonesia or Malaysia facing similar intellectual property integration challenges.
This comparative framework informs VietnamAos path to codifying the resale right, ensuring alignment with transnational intellectual property This section examines these criticisms, drawing on experiences in the EU.
UK, and US, and considers their implications for jurisdictions like Vietnam, which faces the challenge of incorporating the resale right under the EVFTA.
Arguments in Favor of the Resale Right Ensuring Economic Equity for Artists A primary argument for the resale right is its role in addressing the economic disparity between visual artists and other creators, such as writers or musicians, who benefit from royalties through reproduction or licensing.
74 The EUAos Directive 2001/84/EC recognizes that visual artworks, being singular or limited in number, rarely generate recurring income, leaving artists reliant on initial sales that often undervalue their worksAo future market appreciation.
75 The historical case of Jean-Franyois MilletAos The Angelus exemplifies this inequity, as the artistAos impoverished family received no benefit from the 76 The 1992 US Copyright Office report acknowledges this rationale, noting that 72 Directive 2001/84/EC.
73 Sprigman and Rub.
AuResale Royalties.
Ay 74 Sprigman and Rub.
AuResale Royalties.
Ay 75 Directive 2001/84/EC art 1.
76 Bussey.
AuIncompatibility of Droit de Suite,Ay 1098.
Hasanuddin Law Rev.
: 183-208
visual artists face unique financial challenges due to the limited reproducibility of their works, justifying royalties as a means of equitable compensation.
77 In the UK, the resale right has been lauded for supporting artistsAo livelihoods.
78 Collecting societies like DACS distribute royalties, enabling artists to invest in materials or sustain creative practice, even if the amounts are modest.
79 Supporters argue that these payments reinforce the moral principle that creators should benefit from their worksAo enduring value.
Fostering Creative Incentives and Cultural Recognition The resale right is also championed for its role in fostering creativity by providing financial incentives for artists to continue producing works.
The EUAos harmonized approach underscores the right as a recognition of artistsAo contributions to cultural heritage, aligning with the Berne ConventionAos moral and economic protections.
81 In the UK, supporters argue that royalties signal societal respect for artists, encouraging sustained creative output.
82 Studies demonstrate that the UK art market grew by 238% post-2006, suggesting that resale rights enhance market transparency and artist engagement without deterring collectors.
83 This growth refutes criticsAo claims of market harm, positioning the resale right as a catalyst for a vibrant cultural sector.
For Vietnam, adopting the EVFTAAos resale right provisions could ensure its artists benefit from sales in the EU and UK, fostering international recognition and economic support for its growing art scene.
Aligning with Global Standards Proponents argue that the resale right aligns jurisdictions with international intellectual property standards, as recognized by 70 countries by 2018.
85 The EVFTAAos Article 12.
reflects this trend, encouraging Vietnam to adopt the right to integrate into global 86 The EUAos reciprocity principle, requiring recognizing jurisdictions for mutual royalty benefits, further incentivizes adoption, as artists from non-recognizing countries like the US are excluded from EU royalties.
87 By adopting the resale right, 77 US Copyright Office.
Droit de Suite, 12.
78 Copyright.
Designs and Patents Act 1988.
79Gerhard Pfennig.
AuThe Resale Right of Artists (Droit de Suit.
,Ay Copyright Bulletin 31 .
: 20.
DACS.
AuArtistAos Resale Right.
Ay 80 Hutchinson.
AuIs Anything Wrong.
Ay 81 Berne Convention art 14ter.
82 DACS.
AuCopyright Uncovered.
Ay 83 Banternghansa and Graddy.
AuImpact of the Droit de Suite,Ay 84 Hieu Nhan.
AuLy do tranh AoChyn dung cy PhngAo cy giy 3,1 triNu USD,Ay VNExpress, 2021, accessed August 20, 2024, https://vnexpress.
85 Catherine Jewell.
AuThe ArtistAos Resale Right: A Fair Deal for Visual Artists,Ay WIPO Magazine, 2017, accessed August 20, 2024, https://w.
86 EU-Vietnam Free Trade Agreement art 12.
87 Directive 2001/84/EC art 7.
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Vietnam could strengthen its position in the global art market, leveraging the EUAos experience to protect artists while fostering market growth.
Arguments against the Resale Right Market Distortion and Economic Disincentives Critics, particularly in the US and initially in the UK, argue that the resale right distorts art markets by increasing transaction costs and deterring sales.
In the US, the 2013 US Copyright Office report contends that royalties reduce initial sale prices, as buyers anticipate future obligations, diminishing artistsAo earnings from primary sales.
89 Auction houses have expressed concerns that royalties drive high-value sales to non-recognizing jurisdictions, a fear echoed in early UK debates.
90 In the UK, opponents argued that the resale right acts as a tax on buyers, raising costs and potentially reducing market 91 The 1992 US report notes that the administrative costs of tracking and collecting royalties burden auction houses and galleries, potentially increasing prices and deterring collectors.
Disproportionate Benefits for Established Artists A significant criticism is that the resale right primarily benefits established artists whose works command high secondary market prices, leaving emerging artists with minimal 93 In the UK, the C1,000 threshold yields low royalties, which critics argue is insignificant for successful artists but irrelevant for new artists.
94 This concern is amplified in the US, where opponents argue that royalties favor AustarAy artists, exacerbating 95 For Vietnam, with its primary-focused art market, this critique suggests that resale rights may have limited immediate impact.
Administrative and Legal Challenges Implementing the resale right poses significant administrative challenges, particularly in jurisdictions lacking infrastructure like Vietnam.
The EUAos success relies on collecting societies, but the 2013 US report highlights the high costs of establishing such systems.
In the UK, early opposition focused on the administrative burden on auction houses.
88 Banternghansa and Graddy.
AuImpact of the Droit de Suite,Ay.
Ay 89 US Copyright Office.
Resale Royalties, 16Ae17.
90 US Copyright Office.
Resale Royalties, 17.
91 Macquisten.
AuShould Post-Brexit UK.
Ay 92 US Copyright Office.
Droit de Suite, 17.
93 Macquisten.
AuShould Post-Brexit UK.
Ay 94 DACS.
AuCopyright Uncovered.
Ay 95 Sprigman and Rub.
AuResale Royalties.
Ay 96 Quyen Tran and Ngo Yen.
AuGp Xyo Chu - thn ceng hoi hsa nhy vy nhng bc tranh tiAn tO,Ay Thanh Nien, 2021, accessed August 20, 2024, https://thanhnien.
97 US Copyright Office.
Resale Royalties, 17.
98 Macquisten.
AuShould Post-Brexit UK.
Ay Hasanuddin Law Rev.
: 183-208
The French case involving ChristieAos France .
illustrates legal ambiguities, as disputes over liability required court clarification, a risk for Vietnam without clear regulations.
EU-Vietnam Free Trade Agreement and the Case of Vietnam EU-Vietnam Free Trade Agreement Resale Right Provision The EVFTA, signed on 30 June 2019 and effective from 1 August 2020, represents a landmark in VietnamAos integration into global trade and intellectual property frameworks, with Article 12.
15 articulating provisions for the artistAos resale right.
100 Article 12.
15 aligns with the Berne ConventionAos optional framework, offering a flexible yet principled approach to securing royalties for artists or their heirs in secondary market transactions, such as those conducted through auction houses, galleries, or professional art dealers.
By embedding the resale right within a new-generation free trade agreement, the EVFTA underscores its growing global significance, contrasting with jurisdictions like the United States, where the right remains unrecognized, creating disparities in international artist 102 This section examines the resale right provisions in the EVFTA, their legal scope, conditions, and implications, particularly for VietnamAos emerging art market.
Article 12.
15 of the EVFTA defines the resale right as an inalienable entitlement, granting the author of an original artwork, or their heirs, a royalty based on the sale price of any resale subsequent to the initial transfer by the artist.
103 The inalienable nature of the right ensures that it cannot be assigned or waived, distinguishing it from other intellectual property rights that may be transferred or licensed, and aligning it closely with moral rights while retaining an economic function through royalty payments.
104 This provision reflects the EUAos influence, as seen in Directive 2001/84/EC, but the EVFTAAos generality allows signatories like Vietnam flexibility in implementation, a critical consideration given the countryAos nascent secondary art market.
105 Unlike the EU Directive, which specifies artwork types and royalty structures.
Article 12.
15 remains broad, leaving details such as collection procedures and royalty amounts to domestic legislation, thereby accommodating diverse legal systems.
The scope of the resale right under the EVFTA is confined to professional art market transactions, explicitly involving sellers, buyers, or intermediaries like salerooms, 99 ChristieAos France SNC v Syndicat national des antiquaires.
Case C-41/14.
100 EU-Vietnam Free Trade Agreement art 12.
101 Berne Convention art 14ter.
102 US Copyright Office.
Resale Royalties, 16.
103 EU-Vietnam Free Trade Agreement art 12.
104 EU-Vietnam Free Trade Agreement art 12.
105 Quan-Hoang Vuong et al.
AuAoPaintings Can Be Forged.
But Not FeelingAo: Vietnamese ArtAiMarket.
Fraud, and Value,Ay Arts 7, no.
: 62, https://doi.
org/10.
3390/arts7040062.
106 EU-Vietnam Free Trade Agreement art 12.
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galleries, or dealers.
107 This focus ensures that royalties apply only to formal secondary market sales, excluding private transactions or informal exchanges, which aligns with the Berne ConventionAos emphasis on public sales.
108 The provisionAos limitation to professional markets addresses practical concerns about enforcement, ensuring that royalties are collectible in structured settings where sales data is transparent, a model proven effective in the EU through collecting societies like DACS.
109 For Vietnam, this restriction is significant, as its art market is primarily driven by primary sales, with secondary markets limited to high-profile international auctions, such as the $3.
1 million sale of Mai Trung ThuAos Portrait of Miss Phuong in Hong Kong.
110 Implementing such a provision would require Vietnam to develop mechanisms for tracking and administering royalties in professional settings, a challenge given the absence of established collecting societies.
Article 12.
15 further stipulates conditions for the resale rightAos application.
First, the right applies only to the author of the artwork or their heirs, excluding legal entities, which reinforces its personal and moral character.
111 Second, royalties are triggered only from the second transaction onward, meaning the initial sale from the artist to the first buyer is exempt.
112 This exemption acknowledges that artists set the initial sale price, which reflects their valuation of the work, whereas subsequent resales, often at significantly higher prices, benefit intermediaries without compensating the artist.
113 The 1992 US Copyright Office report highlights cases where artworks resold for millions generated no income for artists or their estates, underscoring the inequity the resale right seeks to 114 The EVFTAAos focus on subsequent sales ensures that artists share in the economic appreciation of their works, a principle rooted in the historical case of JeanFranyois MilletAos The Angelus.
A third condition limits the resale rightAos application to jurisdictions where both the artistAos home country and the country of sale recognize the right, mirroring the Berne ConventionAos reciprocity principle.
116 This reciprocity requirement which stems from the EU directive itself poses challenges for Vietnam, as its failure to adopt the resale right domestically would prevent Vietnamese artists from claiming royalties in recognizing jurisdictions like the EU or UK, and vice versa for foreign artists selling in Vietnam.
117 The US Copyright OfficeAos 2013 report emphasizes this global disadvantage, noting that US artists are excluded from EU royalties due to non-recognition, a scenario Vietnam risks 107 EU-Vietnam Free Trade Agreement art 12.
108 Berne Convention art 14ter.
109 DACS.
AuCopyright Uncovered.
Ay 110 Nhan.
AuLy do tranh AoChyn dung cy PhngAo.
Ay 111 EU-Vietnam Free Trade Agreementart 12.
112 EU-Vietnam Free Trade Agreement art 12.
113 EU-Vietnam Free Trade Agreement art 12.
114 US Copyright Office.
Droit de Suite, 10.
115 Duchemin.
Le Droit de Suite, 35.
116 Berne Convention art 14ter.
117 EU-Vietnam Free Trade Agreement art 12.
Hasanuddin Law Rev.
: 183-208
replicating without legislative reform.
118 This reciprocity issue underscores the urgency for Vietnam to align with EVFTA obligations to ensure its artists benefit from international The EVFTA also introduces an exemption for resales occurring within three years of the initial sale if the resale price does not exceed a minimum amount, to be determined by domestic legislation.
119 This provision, akin to the EU DirectiveAos C10,000 exemption, protects new artists whose works may not yet command high values, reducing administrative burdens on low-value transactions.
120 However, the EVFTAAos silence on the specific minimum amount or royalty percentages leaves significant discretion to signatories, a flexibility that could complicate VietnamAos implementation given its limited experience with resale rights.
121 The EUAos approach, with a C3,000 minimum threshold and tiered royalties capped at C12,500, offers a potential model, balancing artist benefits with market feasibility.
122 Vietnam could adopt similar thresholds to ensure royalties are meaningful without deterring collectors, a concern raised in the US context where auction houses fear royalties drive sales to non-recognizing markets like Hong Kong.
VietnamAos Status Quo on Resale Right VietnamAos intellectual property framework, primarily governed by the Intellectual Property Law of 2005 as amended in 2009, 2019 and 2022 and by the other provisions such as the 2015 Civil Code, has yet to recognize the artistAos resale right, despite its inclusion in the EVFTA under Article 12.
124 This absence places Vietnam at a crossroads, as the EVFTA encourages but does not mandate the incorporation of resale rights, mirroring the optional nature of the Berne ConventionAos Article 14ter.
125 The lack of domestic provisions limits Vietnamese artistsAo ability to benefit from royalties in secondary art market transactions, both domestically and in recognizing jurisdictions like the EU, while highlighting the need for legislative reform to align with international 126 This section examines VietnamAos current legal and market context for the resale right, assessing the feasibility and challenges of its incorporation into the national The Intellectual Property Law of 2005, as amended in 2022, comprehensively addresses copyright, industrial property rights and plant varieties rights but omits provisions for the resale right, focusing instead on traditional protections like reproduction and distribution 118 US Copyright Office.
Droit de Suite, 20.
119 EU-Vietnam Free Trade Agreement art 12.
120 Directive 2001/84/EC art 3.
121 EU-Vietnam Free Trade Agreement art 12.
122 Directive 2001/84/EC arts 3.
, 4.
123 US Copyright Office.
Resale Royalties, 17.
124 EU-Vietnam Free Trade Agreement art 12.
125 Berne Convention art 14ter.
126 Directive 2001/84/EC art 7.
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127 The 2022 amendments enhanced enforcement mechanisms and digital copyright protections, reflecting VietnamAos integration into global trade agreements like the EVFTA, yet failed to incorporate the resale right, citing the modest size of the domestic visual art market and the absence of infrastructure for royalty collection.
VietnamAos art market remains predominantly primary, with secondary sales, such as auctions, often occurring abroad, as evidenced by the $3.
1 million sale of Mai Trung ThuAos Portrait of Miss Phuong at SothebyAos Hong Kong in 2021.
129 This reliance on international markets underscores the economic disadvantage for Vietnamese artists, who cannot claim royalties in jurisdictions requiring reciprocity, a concern echoed in the US Copyright OfficeAos 2013 report on the USAos non-recognition of the right.
The feasibility of incorporating the resale right hinges on VietnamAos art market dynamics and legal capacity.
The market, while growing with talents like Xeo Chu, who has sold works for billions of VND, lacks a robust secondary sector, limiting the immediate demand for resale royalties.
131 The Copyright Office of Vietnam notes the absence of collecting societies, unlike the UKAos DACS, as a barrier to implementation, a challenge also highlighted in the 1992 US Copyright Office report, which emphasizes the need for administrative infrastructure.
132 However, international evidence, such as the UKAos 238% art market growth post-2006, suggests that resale rights can stimulate market transparency and artist engagement without deterring sales.
133 Vietnam could adopt a phased approach, initially applying royalties to high-value secondary sales, leveraging the EVFTAAos flexibility to set minimum thresholds akin to the EUAos C3,000.
Incorporation faces challenges, including low awareness among artists and traders, and the need for regulatory mechanisms to track sales and distribute royalties.
135 The 2022 amendmentsAo focus on digital enforcement offers a foundation for developing such systems, potentially through government-backed agencies or partnerships with international collecting societies.
136 Reciprocity, as required by the EVFTA and Berne Convention, necessitates domestic recognition to ensure Vietnamese artists benefit abroad, a lesson from the USAos exclusion from EU royalties.
137 By integrating the resale 127 Law on Intellectual Property 2005 .
s amended 2.
(Vietna.
, arts 18Ae25.
128 Nhan.
AuLy do tranh AoChyn dung cy PhngAo.
Ay 129 Trang Thanh Hien.
AuVietnamese Paintings at International Auctions Reach Milestones,Ay Vietnamnet, 2021, accessed August 20, 2024, https://vietnamnet.
vn/en/vietnamese-paintings-at-international-auctions-reachmilestones-788360.
130 US Copyright Office.
Resale Royalties, 20Ae21.
131 Tran and Yen.
AuGp Xyo Chu.
Ay.
132 US Copyright Office.
Droit de Suite, 12.
133 Banternghansa and Graddy.
AuImpact of the Droit de Suite,Ay 134 Directive 2001/84/EC art 3.
135 US Copyright Office.
Droit de Suite, 17.
136 Law on Intellectual Property 2005 arts 56Ae58.
137 Berne Convention art 14ter.
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: 183-208
Vietnam can protect its artists, align with global standards, and foster a competitive art market, drawing on the EUAos structured model to address local realities.
As can be seen.
VietnamAos legal and institutional framework reveals limited readiness to incorporate the artistAos resale right, critical for aligning with global trade commitments.
The Intellectual Property Law of 2005, as amended in 2022, omits provisions for the resale right, prioritizing traditional protections like reproduction and distribution over emerging mechanisms like royalties for secondary art market sales.
Institutionally.
Vietnam lacks collecting societies, essential for administering royalties, while low awareness among artists and traders further hampers implementation.
The art market, predominantly primary, sees significant secondary sales occurring abroad, underscoring the need for robust systems to capture royalty benefits.
Rampant copyright infringement exacerbates enforcement challenges, weakening the legal foundation for resale right Within ASEANAos intellectual property harmonization efforts.
Vietnam lags behind nations like Singapore, which boast advanced IP frameworks supporting regional integration.
Adopting the resale right could position Vietnam as a leader in ASEANAos push for cohesive IP norms, aligning with trade agreement pressures and fostering cross-border legal This reform requires legislative amendments to define artworks and royalty structures, alongside institutional innovations like government-backed collecting Partnerships with international auction houses could enhance compliance for overseas sales, strengthening VietnamAos global market presence.
By addressing these gaps.
Vietnam can bridge its legal and institutional shortcomings, leveraging ASEANAos harmonization dynamics to enhance artist protections and elevate its cultural sector, contributing to a unified regional IP framework that supports economic and creative growth across Southeast Asia.
Protect or Not Protect: That is the Question The EVFTAAos Article 12.
15 presents a critical opportunity for Vietnam to enhance its intellectual property framework by ensuring visual artists benefit from royalties on secondary market sales.
138 In a Vietnamese law article published by the two authors in 2022, invoking doctrinal research the two authors argued that Vietnam should adopt and incorporate the resale right as a moral right with monetary value within the realm of 139 However, this call has not been taken up by Vietnamese law making As a result.
VietnamAos Intellectual Property Law of 2005, as amended in 2022, currently lacks provisions for the resale right, leaving artists without domestic or international royalty protections in secondary markets.
140 This section continues arguing 138 EU-Vietnam Free Trade Agreement art 12.
139 Trn and Trn.
AuQuyAn byn li,Ay 40Ae55.
140 Law on Intellectual Property 2005 .
s amended 2.
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that Vietnam should codify the EVFTAAos resale right into its domestic law to promote artist equity, align with global standards, and foster its emerging art market, while addressing legal, cultural, economic, and political challenges through tailored solutions.
The Case for Codifying the Resale Right Promoting Artist Equity and Economic Justice A compelling argument for codifying the resale right is its role in addressing economic inequities faced by visual artists.
141 Unlike writers or musicians, visual artists rely heavily on initial sales, which often undervalue their worksAo future market appreciation.
VietnamAos artists, such as Mai Trung Thu, face similar challenges, as secondary sales often occur abroad without royalty benefits.
143 Codifying the resale right would enable Vietnamese artists to claim royalties domestically and in recognizing jurisdictions, enhancing their financial stability.
The EUAos approach, extending protection for 70 years post-mortem, provides a model for Vietnam to ensure long-term benefits for artistsAo Fostering Creative Incentives and Cultural Development Codifying the resale right would foster creative incentives by providing financial support for artists, encouraging sustained artistic production.
The UKAos experience demonstrates that royalties enable artists to invest in materials and focus on creative work.
145 For Vietnam, with emerging talents like Xeo Chu, the resale right could stimulate a nascent secondary art market, promoting cultural development and international recognition.
The moral dimension of the resale right aligns with the Berne ConventionAos principles, encouraging Vietnam to elevate its cultural sector.
Aligning with International Standards and Reciprocity The EVFTAAos Article 12.
15 reflects a global trend, with 70 countries recognizing the resale right by 2018.
148 Codifying this right would align Vietnam with international standards, fulfilling its obligations under the EVFTA and the Berne Convention.
149 The EUAos reciprocity principle underscores the urgency of adoption, as Vietnamese artists are 141 Directive 2001/84/EC.
142 US Copyright Office.
Droit de Suite, 10.
143 Nhan.
AuLy do tranh AoChyn dung cy PhngAo.
Ay 144 Directive 2001/84/EC art 8.
145 DACS.
AuCopyright Uncovered.
Ay 146 Mickael R.
Viglino.
AuThe Reception of Droit de Suite in International Law: Diagnosis and Remedy,Ay Brazilian Journal of International Law 17 .
: 171.
Tran and Yen.
AuGp Xyo Chu.
Ay 147 Berne Convention art 14ter.
Lara Mastrangelo.
AuDroit de Suite - Why the United States Can No Longer Ignore the Global Trend,Ay Chicago-Kent Journal of International Law 18 .
: 3.
148 Jewell.
AuArtistAos Resale Right.
Ay.
Sam Ricketson and Jane C.
Ginsburg.
International Copyright and Neighbouring Rights: The Berne Convention and Beyond, 2nd ed.
(Oxford: Oxford University Press, 2.
A 11.
149 EU-Vietnam Free Trade Agreement art 12.
Hasanuddin Law Rev.
: 183-208
currently excluded from royalties in the EU and UK due to non-recognition.
150 By incorporating the resale right.
Vietnam can ensure its artists benefit from sales in recognizing jurisdictions, enhancing their global competitiveness.
Challenges to Incorporation While there is a strong case for codifying resale right into domestic intellectual property law in Vietnam, there remains substantial challenges for a successful incorporation that should be taken into consideration seriously and with great care.
The challenges are diverse ranging from legal to cultural to economic as well as political and administrative.
Legal Challenges VietnamAos Intellectual Property Law of 2005, as amended in 2022, lacks provisions for the resale right, focusing on reproduction and distribution rights.
152 Incorporating the right requires amending the law to define original artworks, royalty structures, and postmortem protections, a complex process given the EVFTAAos generality.
153 The Fundaciyn Gala-Salvador Daly case illustrates the need for clarity on inheritance rules.
154 Aligning with the Civil Code 2015Aos inheritance framework adds further complexity.
155 Rampant copyright infringement also poses a huge problem for the implementation of any resale right should it be adopted.
Cultural Challenges VietnamAos cultural context, where art is often viewed as a luxury, limits public and artist awareness of the resale right.
157 Unlike the EU.
VietnamAos art market is in its infancy, with galleries struggling for broader appeal.
158 This cultural disconnect could hinder advocacy for legislative reform.
150 Directive 2001/84/EC art 7.
151 Janae Camacho.
AuAoThis Artwork Is Always on SaleAo: The Need for a U.
Resale Royalty Right for Digital Visual Artists in This Technological Age, and Proof of Concept Through the Blockchain and NFTs Explosion,Ay Washington Journal of Law.
Technology & Arts 18 .
, https://digitalcommons.
edu/wjlta/vol18/iss1/2.
Nhan.
AuLy do tranh AoChyn dung cy PhngAo.
Ay 152Marshall A.
Leaffer.
AuOf Moral Rights and Resale Royalties: The Kennedy Bill,Ay Maurer Faculty 911 .
: 1989.
Irina Tarsis.
AuDroit de Suite: LetAos Talk About Artists Resale Royalty Rights,Ay Secrets of Art Magazine.
June 10, 2020, accessed August 20, 2024, https://secretsofartmagazine.
com/2020/06/droit-de-suite-lets-talk-about-artists-resaleroyalty-rights/.
Irina Tarsis.
AuMoral Rights of the Artist .
hen Presen.
: An Updated US Perspective,Ay The Art Law Review, 2023, accessed August 20, 2024, https://w.
com/library/detail.
aspx?g=905fc12e-97ea-4e42-94b71ea3c733e4ae.
153 EU-Vietnam Free Trade Agreement art 12.
154 Court of Justice of the European Union.
Case C-518/08.
Fundaciyn Gala-Salvador Daly and Visual Entidad de Gestiyn de Artistas Plysticos (VEGAP) v Sociyty des auteurs dans les arts graphiques et plastiques (ADAGP) and Others.
April 15, 2010, accessed July 30, 2025, https://curia.
eu/juris/liste.
jsf?language=en&num=C-518/08.
155 Civil Code 2015 (Vietna.
, arts 609Ae630.
156 Vuong et al.
AuAoPaintings Can Be Forged,AoAy 62.
157 Tran and Yen.
AuGp Xyo Chu.
Ay Corey and N.
Taylor.
Auaii Mui and the Globalization of Vietnamese Art,Ay Journal of Vietnamese Studies 14, 1 .
: 1Ae34, https://doi.
org/10.
1525/vs.
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Economic Challenges VietnamAos art market is predominantly primary, with secondary sales often occurring 159 Critics warn that royalties could deter collectors by increasing transaction costs, potentially driving sales to non-recognizing jurisdictions.
160 The UKAos experience suggests that such fears may be overstated, but VietnamAos less developed market may face greater sensitivity.
Political and Administrative Challenges Politically.
While VietnamAos legislative priorities focus on economic growth, intellectual property reforms remain inadequate.
The absence of strong and well Ae equipped collecting societies poses a significant administrative barrier, as highlighted in the 1992 US report.
162 The EVFTAAos optional nature reduces political pressure for immediate A Way Forward or An Open Conclusion The artistAos resale right, as evidenced by the EU and UK, offers a robust mechanism to protect visual artists, while the USAos rejection highlights global disparities.
Vietnam should codify the EVFTAAos resale right to promote equity, foster creativity, and align with international standards.
Legal, cultural, economic, and political challenges can be addressed through amendments, awareness campaigns, phased implementation, and collecting societies, ensuring VietnamAos artists thrive in a competitive global art market.
Vietnam should amend the Intellectual Property Law to incorporate the resale right, drawing on the EUAos Directive to define original artworks and set a C3,000 threshold.
The law should specify royalty percentages, adopt the EUAos tiered structure, and align postmortem protections with the Civil Code 2015, with clear provisions for heirs.
A decree could provide flexibility, detailing implementation specifics.
Awareness campaigns targeting artists, galleries, and collectors, in collaboration with WIPO, could emphasize the resale rightAos benefits.
Public exhibitions showcasing Vietnamese artists could foster cultural support for reform.
A phased implementation, initially applying royalties to highvalue secondary sales, would minimize market disruption.
Setting a balanced threshold and capping royalties would prevent deterring collectors.
Partnerships with international auction houses could ensure compliance for overseas sales.
And lastly.
Vietnam should prioritize the resale right as part of its EVFTA commitments, establishing a collecting 159 Nhan.
AuLy do tranh AoChyn dung cy PhngAo.
Ay 160 US Copyright Office.
Droit de Suite, 17.
161 Banternghansa and Graddy.
AuImpact of the Droit de Suite,Ay 162 US Copyright Office.
Droit de Suite, 17.
163 Laurel Wickersham Salisbury.
AuItAos Not That Easy: Artist Resale Royalty Rights and The ART Act,Ay Center for Art Law.
July 1, 2019, accessed August 20, 2024, https://itsartlaw.
org/its-not-that-easy-artist-resale-royalty-rights-and-the-artact/.
Nhan.
AuLy do tranh AoChyn dung cy PhngAo.
Ay Hasanuddin Law Rev.
: 183-208
society modeled on DACS.
Government funding or partnerships with EU societies could address startup costs.
Training programs for officials could build expertise, and a pilot program targeting major galleries could test implementation.
Acknowledgments This research is funded by Vietnam National Foundation for Science and Technology Development (NAFOSTED) under grant number 505.
References