INDIA Trends and Developments Contributed by: Essenese Obhan and Neel Mason, Obhan Mason
Recommendations While the Indian art market is thriving and growing, there are evident gaps in the industry that are disad - vantageous for artists. Addressing these gaps requires collective effort from multiple stakeholders. • At the outset, artists must be educated about their rights, and must understand the importance of negotiating contracts and the value of retaining or licensing reproduction rights. They must insist on written contracts that include these rights. They may also consider joining or forming collect - ing societies that administer these rights on their behalf. • To make things easier for artists, galleries and deal - ers could consider adopting model clauses/stand - ard form contracts that include resale royalties and reproduction licensing. These will help normalise fair practice and bolster artist relations, as well reduce disputes. • Auction houses must consider adopting policies that guarantee standard resale royalties and trans - parent disclosures. These will ensure that resale royalties are properly tracked and remitted to art - ists or their heirs. • A centralised provenance or registry where resale obligations are recorded would also aid transpar - ency. Such a registry would require co-operation from galleries and auction houses alike, as well as a rigorous process of authentication of artworks. • Collectors must clarify, before purchase, the rights that accompany their acquisition, and negotiate appropriately if commercial use is planned. • Policymakers and industry bodies must develop guidelines, recommend model clauses by way of legislative reform, and explore ways to support the operationalising of resale and reproduction rights in India. • Finally, the standards set out in Section 53A of the Copyright Act need to be properly tested in a court of law. Without judicial clarity, the scope and extent of these rights will not be properly understood. Conclusion The absence of resale royalty and reproduction claus - es in Indian art sales contracts affects artists in many ways, including sometimes worsening inequity and morale, with further detrimental downstream effects
to revert. These can all be contracted out, and it is important that the contract does so. Implementation mechanisms There are several practical considerations when imple - menting or enforcing reproduction clauses, some of which are discussed below. It is advisable for galleries to seek written reproduc - tion licences from artists before using images in cata - logues, online promotion or merchandising. Similarly, buyers who intend to publish or commercialise images of purchased works should negotiate reproduction rights at the time of sale and properly document these rights. Equally, artists must explicitly reserve moral rights and set quality-control mechanisms for any licensed reproductions. One method is to tightly control the transfer and handling of high-resolution files of digital versions of the artworks – eg, transfer files only upon payment, watermark preview images, etc. Given the proliferation of art online, it is also recommended that permission for promotional use in online galleries be provided for, clarifying whether the licence includes downloading, derivative works or commercial exploi - tation. Reproduction permissions may be crafted in the form of tiered licensing, depending on the nature of use (promotional/exhibition use, duplication for cata - logues or press use, and commercial merchandis - ing). Separately, payment structures may consider the duration and frequency of use, such as flat fees for limited one-time uses, royalty percentage for ongo - ing merchandising sales, and minimum guarantees for commercial uses. Attribution and moral rights clauses are also critical in these arrangements, and require that the “artist name” be credited alongside image reproductions, while also prohibiting any use that is prejudicial to the artist’s reputation. In any case, audit and reporting must be mandatory, for only then will implementation be truly seamless.
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