Here's a strange story: the European Union is leaning hard on Canada to adopt a new "resale right" under which creators would receive compensation—even when the item is resold.

Currently, in both the US and Canada, the basic principle of "first sale" applies, which says that a creator or manufacturer gives up the right to control further uses of that work after it has been sold, or to keep taking a cut of the profits. Creative industries have long hated this; when we took a lengthy look at first sale one year ago, we noted that the music and book businesses have long wanted a cut of resale profits. How can it be right, they argue, that they make only one sale of a book or CD which can then be resold repeatedly to many other people? (One never hears home builders make the same argument, though it would seem even more applicable.)

Europe wants that to change. As part of a comprehensive bilateral trade deal it's working out right now with Canada, the EU has asked for a host of intellectual property changes: Canada will need to extend its copyright terms by another two decades, will need to ban the circumvention of DRM, will need to adopt a "making available right," and must implement a "new resale" right giving creators a cut of the money every time their work is resold in the future.

The resale right is quite limited. According to a leaked version of the draft treaty, it applies only to "the author of an original work of art." How a "work of art" is defined isn't spelled out in the document text, but a little digging turned up the definition.

Europe has actually had such a resale right since 2001, and the treaty is an attempt to extend that right to Canada. Europe's Directive 2001/84/EC says that the right covers only "works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided they are made by the artist himself or are copies considered to be original works of art."

When an artist sells a painting, for instance, no special fee is paid (since the artist collects the cash). But whenever an artwork is sold by an art professional like a gallery owner or auction house (private sales are excluded), a percentage of the purchase goes back to the artist every time a sale is made. This fee is a right that can actually be inherited by family members, and it works on a sliding scale; 4 percent of sales up to �50,000 slides down to 0.25 percent when the sale is more than �500,000 with a cap of �12,500.

Artists collect their money by registering with various "collecting societies" who centralize the payment process and then disburse the money.

It's an odd system, but one meant to "ensure that authors of graphic and plastic works of art share in the economic success of their original works of art," says the law. "It helps to redress the balance between the economic situation of authors of graphic and plastic works of art and that of other creators who benefit from successive exploitations of their works."

The 2002 edition of Law, Ethics, and the Visual Arts explains the logic behind these laws in Europe.

In point of fact, while Impressionist masters, excluded from official exhibitions, were scorned by the public, certain shrewd dealers bought their paintings at ridiculously low prices. General disdain was followed by infatuation and these same paintings then commanded extraordinary amounts of money. Examples abound: a Degas painting, originally sold for 500 francs, was auctioned off for 436,000 frances in 1912... The artists were excluded from this wealth.

Does "first sale" matter in a licensed, digital world?

The resale right chips away at the inviolability of "first sale" in way that doesn't much matter to most people now, but might in the future. The 2001 EU Directive makes plain that the EU will seek to extend the resale right to other countries and will push for it to become a mandatory part of copyright's "founding document," the Berne Convention. Currently, the convention supports the resale right, but only if a country has a national law adopting it (it's not mandatory).

But the Berne text goes further than the EU currently does, covering not just original artwork but also "original manuscripts of writers and composers." If this section becomes compulsory, Berne signatories will need to provide resale protections to art, manuscripts, and original scores.

Still, it applies only to original objects and not to copies—but it's not hard to see how, once the resale right is embedded more widely in national law, the groups that already agitate for some form of resale revenue won't step up their pleas to be included in the scheme.

Or perhaps they won't need to bother. The combination of digital technology, DRM, and "licensing" rather than "sales" has already allowed content owners to put their work in a chokehold. Think of Kindle content as an example: it's DRM-wrapped, can't be resold, and isn't "owned" in the way a book is. Who needs a resale right when resale isn't a possibility?