INDIA Trends and Developments Contributed by: Essenese Obhan and Neel Mason, Obhan Mason
Obhan Mason N - 94, Second Floor Panchsheel Park New Delhi 110017 India Tel: +91 11 402 002 00 Fax: +91 11 402 002 99
Email: email@obhanmason.com Web: www.obhanmason.com
The Indian Art Market: The Rights Gap in Resale and Reproduction Introduction The Indian art industry is setting new records each year, with sales volumes and valuations increasing exponentially. From a USD2 million aggregate valua - tion at the start of the 21st century, the industry’s esti - mated valuation (according to experts) in 2025 was around USD338 million, and is expected to increase to USD1.1 billion by 2030. This dramatic shift is the outcome of many factors, including growing domestic and international collectors, and an expanding net - work of galleries and auction houses with an interest in Indian art. With primary and secondary markets in Indian art booming, one would imagine that artists would be among the biggest beneficiaries, though this is far from the truth – this is because of two critical missing pieces in art transactions and sales contracts: • resale rights – which deal with the artist’s entitle - ment to a share of the proceeds when a work is resold; and • reproduction rights – which are the rights to repro - duce or publish images of artworks, including in calendars, merchandise, catalogues and online promotion. The lack of the resale rights clause disentitles artists from downstream revenue when their works appreci - ate in value. The lack of reproduction rights disentitles purchasers from utilising the works, as the ownership of the artwork does not mean ownership or an implied
licence to the artwork itself. This article explains how these issues play out in India, analyses current prac - tice, and offers guidance to protect artists and provide clarity to buyers and intermediaries. Resale Rights Why resale rights matter Artists in India usually receive only a modest amount on first sale, and receive no further benefits from sub - sequent increases in value, when collectors or dealers resell their works. This is where resale rights enter the picture. Also called droit de suite , these rights grant visual artists a share of the proceeds each time their original work is resold on the secondary market. Several jurisdictions (notably the European Union, and some others) provide for resale rights to protect art - ists’ interests. While the Indian Copyright Act envisag - es resale share rights in original copies (Section 53A), it leaves it to the Commercial Court to fix the rates, the only guidance being that this cannot exceed 10% of the resale price. It also sets a minimum threshold of INR10,000 and states that this right is only exercisable during the term of copyright. Unfortunately, to the best of the authors’ knowledge, there are no reported judgments that set out the rel - evant share; therefore, in a sense this is a provision that has not been statutorily activated. The legal framework acknowledges that artists must benefit from secondary sales. However, in practice, resale rights are neither exercised nor enforced. Auc - tion houses, dealers and collectors generally do not
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