2016 has not been the most economically favourable year in Nigeria. The international exchange rate has steadily been on the increase, and the forecast for 2017 does not seem to offer any respite. In spite of this, artists in Nigeria are still creating works and the art scene is pushing for further innovation, growth, and expansion of the industry. However, in times like this, artists may speculate as to what safeguards are in place to ensure financial preparedness.
In 1920, France found itself in a financial predicament as well, which markedly affected artists at the time. The principle of droit de suite originated after World War I, to circumvent a situation where artists were economically disadvantaged. The inequality brought about by the margin between what the artist received for his efforts compared to the savvy art dealer, who created nothing, propelled French philanthropists to lobby the government to create a profitable right for artists. Eventually, the right was brought about with the intention to better and balance the fortunes of artists, and encourage the production of fine art in society.
The literal meaning of droit de suite is ‘right to follow’, and it is also known as the artist’s resale right. These are the fees paid to artists when their work is resold, allowing the artists to follow the future success of their artistic works. The basis of the right is that artists can also benefit from the mass exploitation of their work through the collection of royalties. The general position now is that the artist has a right to claim a percentage of the price paid by the purchaser for every subsequent resale of the work. Droit de suite is only applicable to subsequent sales, not the first sale of the artwork, and applies only to public sales; private sales are excluded. This right is advantageous in the sense that there is no limit to the number of times that the right can be invoked by the artist, regardless of whether it is sold once or a hundred times. The disadvantages, however, lie in the fact that the right cannot be assigned, waived or shared.
With regards to the application of this doctrine in Nigeria, the legislation governing copyright makes provision for royalties. The signatories to the Berne Convention, one of which is Nigeria, by signing the Convention agreed to introduce a droit de suite law into their own national legislations. The fourth schedule of the Copyright Act also provides for the payment of royalties by an applicant to the owner of copyright in a work, in respect of an application for a license to produce or publish a reproduction of that work.
In spite of the fact that this right exists in Nigeria, it is limited to graphic works, three-dimensional works, and manuscripts, as stated in Section 12 (1) of the Copyright Act.
“…the authors of graphic works, three-dimensional works, and manuscripts shall have an inalienable right to a share in the proceeds of any sale of that work or manuscript by public auction or through a dealer whatever the method used by the latter to carry out the operation…”
Although this provision does not specifically state the types of artistic works it covers, it can be inferred that the statement “graphic works, three-dimensional works, and manuscripts” would cover a broad spectrum of works under artistic works. The Nigerian Copyright Council determines the conditions for the exercise of this right. However, section 12 also adds that the provisions of this section shall not apply to architectural works or applied art, which is a limitation to the spectrum of works covered by this provision. As a result, the author of an architectural work, or a work of applied art, would not be entitled to royalties for such work. Moreover, this principle includes the heirs and successors in title, meaning that it is a right that can be invoked even after the death of the author.
Principles like this can prove advantageous to the Nigerian artist, as it provides them with access to the success of their work and a percentage of the proceeds from subsequent sales. Although royalties are common in the Lagos auction scene, it is crucial that artists note that this right is not for “one-time” use, as there is no limit to the number of times that the right can be invoked by the artist. Although there are no case precedents on this principle in Nigeria at the moment, it would be great to see more artists apply this principle to initial transactions and future dealings with their work.