| THE EUROPEAN PARLIAMENT AND
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty
establishing the European Community, and in particular Article
95 thereof,
Having regard to the proposal
from the Commission,[1]
Having regard to the Opinion of
the Economic and Social Committee,[2]
Acting in accordance with the
procedure laid down in Article 251 of the Treaty,[3]
Whereas:
(1) In the field of copyright,
the resale right is an unassignable and inalienable right,
enjoyed by the author of an original work of graphic or plastic
art, to an economic interest in successive sales of the work
concerned.
(2) The resale right is a right
of a productive character which enables the author/artist to
receive consideration for successive transfers of the work. The
subject-matter of the resale right is the physical work, namely
the medium in which the protected work is incorporated.
(3) The resale right is
intended to ensure that authors of graphic and plastic works of
art share in the economic success of their original works of
art. 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.
(4) The resale right forms an
integral part of copyright and is an essential prerogative for
authors. The imposition of such a right in all Member States
meets the need for providing creators with an adequate and
standard level of protection.
(5) Under Article 151(4) of the
Treaty the Community is to take cultural aspects into account in
its action under other provisions of the Treaty.
(6) The Berne Convention for
the Protection of Literary and Artistic Works provides that the
resale right is available only if legislation in the country to
which the author belongs so permits. The right is therefore
optional and subject to the rule of reciprocity. It follows from
the case-law of the Court of Justice of the European Communities
on the application of the principle of non-discrimination laid
down in Article 12 of the Treaty, as shown in the judgement of
20 October 1993 in Joined Cases C-92/92 and C-326/92 Phil
Collins and Others,[1]
that domestic provisions containing reciprocity clauses cannot
be relied upon in order to deny nationals of other Member States
rights conferred on national authors. The application of such
clauses in the Community context runs counter to the principle
of equal treatment resulting from the prohibition of any
discrimination on grounds of nationality.
(7) The process of
internationalisation of the Community market in modern and
contemporary art, which is now being speeded up by the effects
of the new economy, in a regulatory context in which few States
outside the EU recognise the resale right, makes it essential
for the European Community, in the external sphere, to open
negotiations with a view to making Article 14ter of the Berne
Convention compulsory.
(8) The fact this international
market exists, combined with the lack of a resale right in
several Member States and the current disparity as regards
national systems which recognise that right, make it essential
to lay down transitional provisions both as regards entry into
force and the substantive regulation of the right, which will
preserve the competitiveness of the European market.
(9) The resale right is
currently provided for by the domestic legislation of a majority
of Member States. Such laws, where they exist, display certain
differences, notably as regards the works covered, those
entitled to receive royalties, the rate applied, the
transactions subject to payment of a royalty, and the basis on
which these are calculated. The application or non?application
of such a right has a significant impact on the competitive
environment within the internal market, since the existence or
absence of an obligation to pay on the basis of the resale right
is an element which must be taken into account by each
individual wishing to sell a work of art. This right is
therefore a factor which contributes to the creation of
distortions of competition as well as displacement of sales
within the Community.
(10) Such disparities with
regard to the existence of the resale right and its application
by the Member States have a direct negative impact on the proper
functioning of the internal market in works of art as provided
for by Article 14 of the Treaty. In such a situation Article 95
of the Treaty constitutes the appropriate legal basis.
(11) The objectives of the
Community as set out in the Treaty include laying the
foundations of an ever closer union among the peoples of Europe,
promoting closer relations between the Member States belonging
to the Community, and ensuring their economic and social
progress by common action to eliminate the barriers which divide
Europe. To that end the Treaty provides for the establishment of
an internal market which presupposes the abolition of obstacles
to the free movement of goods, freedom to provide services and
freedom of establishment, and for the introduction of a system
ensuring that competition in the common market is not distorted.
Harmonisation of Member States' laws on the resale right
contributes to the attainment of these objectives.
(12) The Sixth Council
Directive (77/388/EEC) of 17 May 1977 on the harmonisation of
the laws of the Member States relating to turnover taxes -
common system of value added tax: uniform basis of assessment,[1]
progressively introduces a Community system of taxation
applicable inter alia to works of art. Measures confined to the
tax field are not sufficient to guarantee the harmonious
functioning of the art market. This objective cannot be attained
without harmonisation in the field of the resale right.
(13) Existing differences
between laws should be eliminated where they have a distorting
effect on the functioning of the internal market, and the
emergence of any new differences of that kind should be
prevented. There is no need to eliminate, or prevent the
emergence of, differences which cannot be expected to affect the
functioning of the internal market.
(14) A precondition of the
proper functioning of the internal market is the existence of
conditions of competition which are not distorted. The existence
of differences between national provisions on the resale right
creates distortions of competition and displacement of sales
within the Community and leads to unequal treatment between
artists depending on where their works are sold. The issue under
consideration has therefore transnational aspects which cannot
be satisfactorily regulated by action by Member States. A lack
of Community action would conflict with the requirement of the
Treaty to correct distortions of competition and unequal
treatment.
(15) In view of the scale of
divergences between national provisions it is therefore
necessary to adopt harmonising measures to deal with disparities
between the laws of the Member States in areas where such
disparities are liable to create or maintain distorted
conditions of competition. It is not however necessary to
harmonise every provision of the Member States' laws on the
resale right and, in order to leave as much scope for national
decision as possible, it is sufficient to limit the
harmonisation exercise to those domestic provisions that have
the most direct impact on the functioning of the internal
market.
(16) This Directive complies
therefore, in its entirety, with the principles of subsidiarity
and proportionality as laid down in Article 5 of the Treaty.
(17) Pursuant to Council
Directive 93/98/EEC of 29 October 1993 harmonising the term of
protection of copyright and certain related rights,[1]
the term of copyright runs for 70 years after the author's
death. The same period should be laid down for the resale right.
Consequently, only the originals of works of modern and
contemporary art may fall within the scope of the resale right.
However, in order to allow the legal systems of Member States
which do not, at the time of the adoption of this Directive,
apply a resale right for the benefit of artists to incorporate
this right into their respective legal systems and, moreover, to
enable the economic operators in those Member States to adapt
gradually to the aforementioned right whilst maintaining their
economic viability, the Member States concerned should be
allowed a limited transitional period during which they may
choose not to apply the resale right for the benefit of those
entitled under the artist after his death.
(18) The scope of the resale
right should be extended to all acts of resale, with the
exception of those effected directly between persons acting in
their private capacity without the participation of an art
market professional. This right should not extend to acts of
resale by persons acting in their private capacity to museums
which are not for profit and which are open to the public. With
regard to the particular situation of art galleries which
acquire works directly from the author, Member States should be
allowed the option of exempting from the resale right acts of
resale of those works which take place within three years of
that acquisition. The interests of the artist should also be
taken into account by limiting this exemption to such acts of
resale where the resale price does not exceed EUR 10 000.
(19) It should be made clear
that the harmonisation brought about by this Directive does not
apply to original manuscripts of writers and composers.
(20) Effective rules should be
laid down based on experience already gained at national level
with the resale right. It is appropriate to calculate the
royalty as a percentage of the sale price and not of the
increase in value of works whose original value has increased.
(21) The categories of works of
art subject to the resale right should be harmonised.
(22) The non-application of
royalties below the minimum threshold may help to avoid
disproportionately high collection and administration costs
compared with the profit for the artist. However, in accordance
with the principle of subsidiarity, the Member States should be
allowed to establish national thresholds lower than the
Community threshold, so as to promote the interests of new
artists. Given the small amounts involved, this derogation is
not likely to have a significant effect on the proper
functioning of the internal market.
(23) The rates set by the
different Member States for the application of the resale right
vary considerably at present. The effective functioning of the
internal market in works of modern and contemporary art requires
the fixing of uniform rates to the widest possible extent.
(24) It is desirable to
establish, with the intention of reconciling the various
interests involved in the market for original works of art, a
system consisting of a tapering scale of rates for several price
bands. It is important to reduce the risk of sales relocating
and of the circumvention of the Community rules on the resale
right.
(25) The person by whom the
royalty is payable should, in principle, be the seller. Member
States should be given the option to provide for derogations
from this principle in respect of liability for payment. The
seller is the person or undertaking on whose behalf the sale is
concluded.
(26) Provision should be made
for the possibility of periodic adjustment of the threshold and
rates. To this end, it is appropriate to entrust to the
Commission the task of drawing up periodic reports on the actual
application of the resale right in the Member States and on the
impact on the art market in the Community and, where
appropriate, of making proposals relating to the amendment of
this Directive.
(27) The persons entitled to
receive royalties must be specified, due regard being had to the
principle of subsidiarity. It is not appropriate to take action
through this Directive in relation to Member States' laws of
succession. However, those entitled under the author must be
able to benefit fully from the resale right after his death, at
least following the expiry of the transitional period referred
to above.
(28) The Member States are
responsible for regulating the exercise of the resale right,
particularly with regard to the way this is managed. In this
respect management by a collecting society is one possibility.
Member States should ensure that collecting societies operate in
a transparent and efficient manner. However, Member States must
ensure that amounts intended for authors who are nationals of
other Member States are in fact collected and distributed. This
Directive is without prejudice to arrangements in Member States
for collection and distribution.
(29) Enjoyment of the resale
right should be restricted to Community nationals as well as to
foreign authors whose countries afford such protection to
authors who are nationals of Member States. A Member State
should have the option of extending enjoyment of this right to
foreign authors who have their habitual residence in that Member
State.
(30) Appropriate procedures for
monitoring transactions should be introduced so as to ensure by
practical means that the resale right is effectively applied by
Member States. This implies also a right on the part of the
author or his authorised representative to obtain any necessary
information from the natural or legal person liable for payment
of royalties. Member States which provide for collective
management of the resale right may also provide that the bodies
responsible for that collective management should alone be
entitled to obtain information,
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
Scope
Article 1
Subject matter of the resale
right
1. Member States shall provide,
for the benefit of the author of an original work of art, a
resale right, to be defined as an inalienable right, which
cannot be waived, even in advance, to receive a royalty based on
the sale price obtained for any resale of the work, subsequent
to the first transfer of the work by the author.
2. The right referred to in
paragraph 1 shall apply to all acts of resale involving as
sellers, buyers or intermediaries art market professionals, such
as salesrooms, art galleries and, in general, any dealers in
works of art.
3. Member States may provide
that the right referred to in paragraph 1 shall not apply to
acts of resale where the seller has acquired the work directly
from the author less than three years before that resale and
where the resale price does not exceed EUR 10 000.
4. The royalty shall be payable
by the seller. Member States may provide that one of the natural
or legal persons referred to in paragraph 2 other than the
seller shall alone be liable or shall share liability with the
seller for payment of the royalty.
Article 2
Works of art to which the
resale right relates
1. For the purposes of this
Directive, "original work of art" means 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.
2. Copies of works of art
covered by this Directive, which have been made in limited
numbers by the artist himself or under his authority, shall be
considered to be original works of art for the purposes of this
Directive. Such copies will normally have been numbered, signed
or otherwise duly authorised by the artist.
CHAPTER II
Particular provisions
Article 3
Threshold
1. It shall be for the Member
States to set a minimum sale price from which the sales referred
to in Article 1 shall be subject to resale right.
2. This minimum sale price may
not under any circumstances exceed EUR 3 000.
Article 4
Rates
1. The royalty provided for in
Article 1 shall be set at the following rates:
(a) 4% for the portion of the
sale price up to EUR 50 000;
(b) 3% for the portion of the
sale price from EUR 50 000,01 to 200 000;
(c) 1% for the portion of the
sale price from EUR 200 000,01 to 350 000;
(d) 0,5% for the portion of
the sale price from EUR 350 000,01 to 500 000;
(e) 0,25% for the portion of
the sale price exceeding EUR 500 000.
However, the total amount of
the royalty may not exceed EUR 12 500.
2. By way of derogation from
paragraph 1, Member States may apply a rate of 5% for the
portion of the sale price referred to in paragraph 1(a).
3. If the minimum sale price
set should be lower than EUR 3 000, the Member State shall also
determine the rate applicable to the portion of the sale price
up to EUR 3 000; this rate may not be lower than 4%.
Article 5
Calculation basis
The sale prices referred to in
Articles 3 and 4 are net of tax.
Article 6
Persons entitled to receive
royalties
1. The royalty provided for
under Article 1 shall be payable to the author of the work and,
subject to Article 8(2), after his death to those entitled under
him.
2. Member States may provide
for compulsory or optional collective management of the royalty
provided for under Article 1.
Article 7
Third-country nationals
entitled to receive royalties
1. Member States shall provide
that authors who are nationals of third countries and, subject
to Article 8(2), their successors in title shall enjoy the
resale right in accordance with this Directive and the
legislation of the Member State concerned only if legislation in
the country of which the author or his successor in title is a
national permits resale right protection in that country for
authors from the Member States and their successors in title.
2. On the basis of information
provided by the Member States, the Commission shall publish as
soon as possible an indicative list of those third countries
which fulfil the condition set out in paragraph 1. This list
shall be kept up to date.
3. Any Member State may treat
authors who are not nationals of a Member State but who have
their habitual residence in that Member State in the same way as
its own nationals for the purpose of resale right protection.
Article 8
Term of protection of the
resale right
1. The term of protection of
the resale right shall correspond to that laid down in Article 1
of Directive 93/98/EEC.
2. By way of derogation from
paragraph 1, those Member States which do not apply the resale
right on [the entry into force date referred to in Article 13],
shall not be required, for a period expiring not later than 1
January 2010, to apply the resale right for the benefit of those
entitled under the artist after his death.
3. A Member State to which
paragraph 2 applies may have up to two more years, if necessary
to enable the economic operators in that Member State to adapt
gradually to the resale right system whilst maintaining their
economic viability, before it is required to apply the resale
right for the benefit of those entitled under the artist after
his death. At least 12 months before the end of the period
referred to in paragraph 2, the Member State concerned shall
inform the Commission giving its reasons, so that the Commission
can give an opinion, after appropriate consultations, within
three months following the receipt of such information. If the
Member State does not follow the opinion of the Commission, it
shall within one month inform the Commission and justify its
decision. The notification and justification of the Member State
and the opinion of the Commission shall be published in the
Official Journal of the European Communities and forwarded to
the European Parliament.
4. In the event of the
successful conclusion, within the periods referred to in Article
8(2) and 8(3), of international negotiations aimed at extending
the resale right at international level, the Commission shall
submit appropriate proposals.
Article 9
Right to obtain information
The Member States shall provide
that for a period of three years after the resale, the persons
entitled under Article 6 may require from any art market
professional mentioned in Article 1(2) to furnish any
information that may be necessary in order to secure payment of
royalties in respect of the resale.
CHAPTER III
Final provisions
Article 10
Application in time
This Directive shall apply in
respect of all original works of art as defined in Article 2
which, on 1 January 2006, are still protected by the legislation
of the Member States in the field of copyright or meet the
criteria for protection under the provisions of this Directive
at that date.
Article 11
Revision clause
1. The Commission shall submit
to the European Parliament, the Council and the Economic and
Social Committee not later than 1 January 2009 and every four
years thereafter a report on the implementation and the effect
of this Directive, paying particular attention to the
competitiveness of the market in modern and contemporary art in
the Community, especially as regards the position of the
Community in relation to relevant markets that do not apply the
resale right and the fostering of artistic creativity and the
management procedures in the Member States. It shall examine in
particular its impact on the internal market and the effect of
the introduction of the resale right in those Member States that
did not apply the right in national law prior to the entry into
force of this Directive. Where appropriate, the Commission shall
submit proposals for adapting the minimum threshold and the
rates of royalty to take account of changes in the sector,
proposals relating to the maximum amount laid down in Article
4(1) and any other proposal it may deem necessary in order to
enhance the effectiveness of this Directive.
2. A Contact Committee is
hereby established. It shall be composed of representatives of
the competent authorities of the Member States. It shall be
chaired by a representative of the Commission and shall meet
either on the initiative of the Chairman or at the request of
the delegation of a Member State.
3. The task of the Committee
shall be as follows:
- to organise consultations
on all questions deriving from application of this Directive;
- to facilitate the exchange
of information between the Commission and the Member States on
relevant developments in the art market in the Community.
Article 12
Implementation
1. Member States shall bring
into force the laws, regulations and administrative provisions
necessary to comply with this Directive before 1 January 2006.
They shall forthwith inform the Commission thereof.
When Member States adopt these
measures, they shall contain a reference to this Directive or
shall be accompanied by such reference on the occasion of their
official publication. The methods of making such a reference
shall be laid down by the Member States.
2. Member States shall
communicate to the Commission the provisions of national law
which they adopt in the field covered by this Directive.
Article 13
Entry into force
This Directive shall enter into
force on the day of its publication in the Official Journal of
the European Communities.
Article 14
Addressees
This Directive is addressed to
the Member States. |
