Brexit and artists’ copyright: making the case for continued protection of creators’ rights

Heading into Brexit, you may have questions over what the future might hold for the arts, particularly if you’re a practising artist.

We know that the UK government recognises the value and strength of the creative industries and has put this sector at the heart of its industrial strategy – its plan to shape the future of the UK after leaving the EU.

We also know that the process to untangle ourselves from the EU will be complex, with years of negotiations on Brexit and free trade agreements, and hundreds of officials working through thousands of EU regulations and laws.

However, there is still quite a bit of detail to understand and work out before the deal is sealed.

With this in mind, it is important to take stock of any potential impacts or opportunities and make the case for what visual artists need, not only to make it out the other side, but to also thrive and carry on with creating art, ensuring our creative talent and reputation remains after Brexit.

Whilst there will be several issues concerning artists, ranging from EU funding for arts projects to freedom of movement, DACS will focus here on moving forward as an artist in the UK, ensuring your copyright and creative artistic works are protected.

What’s the future for copyright?

UK copyright law provides protection to artists and creators that helps to facilitate licensing of their works. Artists rely on this protection and the income made through licensing to continue their practice, which is even more important when artists are faced with other income streams diminishing and pressures on arts funding.

Over the last 40 years, UK copyright law has progressed to provide a high level of protection for creators’ rights by having to adopt standards from the EU and international treaties.

Artists have benefitted from the adoption of these standards, such as the EU’s copyright term lasting 70 years after the creator’s death, whereas the international standard is 50 years.

It is also from the harmonisation of the EU’s copyright framework that the UK Copyright, Designs and Patents Act (CDPA) presents a catalogue of tight exceptions, which balances user interests with those of the creator. Exceptions allow users to reproduce a work without permission, but the limited exceptions adopted here have prevented a weakening of creators’ rights as seen in other countries without such standards, like the US.

Furthermore, the freedom of movement of goods and services within the EU single market has made cross-border licensing deals even more possible, expanding artists’ profiles and revenue opportunities into more markets.

Leaving the EU will not require the UK to change its copyright law and the UK will still need to comply with international treaties that set out agreed protection standards.

For example, UK copyright law that provides the exclusive rights to copyright owners to copy, distribute, rent or lend, or communicate their work, or to authorise someone else to do so, will remain as UK law as these are also enshrined within international copyright treaties.

However, once we leave the EU, the UK will no longer be bound to harmonise its copyright law with the EU’s intellectual property and copyright regime. This is where we could see new and wider exceptions creep in that no longer need to meet EU standards and which could weaken creators’ rights.

Also, the UK would need to ensure that cross-border licensing can continue and it may be necessary to change contracts in place going forward. There is a risk that UK artists may lose out when the UK would still need to grant protection to European Economic Area (EEA) nationals but other EU member states may no longer be obliged to do the same for UK creators.

In DACS’ opinion, the UK’s copyright regime is generally a robust and fair framework. Any significant move to undo this would be harmful to both artists and users and deeply disrupt the UK’s creative industries in a competitive global market.

Artists and visual arts organisations need to relay these messages to government to ensure the UK’s copyright framework is not reopened after Brexit, and artists’ rights are protected.

Protecting the Artist’s Resale Right

As an artist or artist’s estate, you may also receive royalties from the Artist’s Resale Right (ARR). ARR applies to the resale of an artwork still in copyright by a gallery, dealer or auction house once it sells above a threshold of €1,000.

Although derived from an EU Directive, ARR has been implemented into UK law. It is not just an EU convention as ARR is also recognised in over 80 countries worldwide and has its place in the Berne Convention for Protection of Literary and Artistic Works, which has been signed by 171 countries.

Many artists and estates are worried that ARR in the UK could be under threat after Brexit, as ARR has received strong opposition from some within the UK art trade.

However, the amount of ARR royalties paid to artists is less than 1% of the UK’s post-war and contemporary and modern art sales. And with the UK art market the second largest in the world and valued higher in 2015 than when ARR was first introduced in 2006 (even with recovering from the global recession), the argument that ARR has had a negative impact on the UK art trade is unfounded.

ARR is a significant source of revenue supporting artists’ practices and estates’ legacies. It helps drive this creative input into the art market, the creative economy and the UK’s cultural heritage.

Artists, estates and visual arts organisations need to voice their support and campaign for ARR to ensure it is preserved long after Brexit.

What can you do now?

• Self-assess – Take a look at your practice, contracts and income streams. Are there any opportunities going forward, any risks you’re concerned about?
• Raise your voice – Write to your MP and let them know your concerns and where you stand on certain issues that impact you as an artist. Make it personal, sharing your stories and experiences. Find your MP here.
• Stay informed – Follow updates and news from visual arts organisations, media outlets and campaigns.
• Unite and amplify – If you’re a member or supporter of any visual arts organisations, share your thoughts, concerns and opportunities with them. In a crowded political environment, personal narratives are incredibly effective in bringing policy impacts to life. You can also support campaigns by amplifying any calls to action or messages through social media and sharing updates within your artist networks.

About DACS: Established by artists for artists, DACS is the UK’s flagship not-for-profit visual artist rights’ management organisation. DACS campaigns for artists’ rights, championing their sustained and vital contribution to the creative economy. Visit dacs.org.uk for more information in our copyright FAQs and factsheets

Image:
The Estate of John Hoyland Studio. Photo: Brian Benson © Brian Benson, 2017; Courtesy: DACS

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