Resale Right - Artigo

 

Resale Right - Artigo
Artigo


Texto 1:
The resale right is a fundamental right for authors of graphic and plastic arts. It consists of a small percentage of the resale price that art market professionals pay to them at each resale of their works be it in auction or in a gallery.
The specificity of visual artists is that their primary source of income is the material selling of their original works. While auction houses and galleries make their business by taking commissions, it would be paradoxical that artists do not benefit from the profit generated by their works on the art market.
This is why the resale right, which is not applicable to first sales and therefore not on those galleries that do the work of promoting artists, was created. It also helps to restore the balance with the authors of other creative sectors (composers, screen-writers and film directors, writers…) whose rights of reproduction and communication to the public cannot be compared with those of visual artists.
Born in France in 1920, harmonized in Europe by the Directive of 27 September 2001 and provided internationally by Article 14ter of the Berne Convention at the International Intellectual Property Organization (WIPO), but non-binding, the right is now recognized by 65 states (members of the European Union of course, but also Australia, Brazil, Russia, Mexico, Tunisia, Senegal…).
Currently, the two top countries in terms of the art market are considering introducing this right. Indeed, the United States draft bills were tabled in both houses of Congress so that the resale right, which already exists in the State of California shall become a federal law. China has included this right in the revision of the law on intellectual property. A bill was also filed in Canada. And at WIPO, more and more voices are calling that the right should become mandatory within the Berne Convention.
In a global world, the protection of artists should be the same in different places of the art market, be it London, Paris, New York or Hong Kong. Thus, the authors of fine arts from the five continents – and not just those of Western countries – must be able to benefit from the wealth generated by the sales of their creations. And the first ones being concerned are the artists from emerging countries whose works are purchased at low prices and then resold with significant gains on the art markets of Western countries.
To achieve this equality between the authors around the world the resale right must become, under the auspices of WIPO, a global right.
Texto 2:
Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art is a European Union directive in the field of copyright law, made under the internal market provisions of the Treaty of Rome. It creates a right under European Union law for artists to receive royalties on their works when they are resold. This right, often known by its French name droit de suite, appears in the Berne Convention for the Protection of Literary and Artistic Works (as Art.14) and already existed in many, but not all, Member States. As a result, there was a tendency for sellers of works of art to sell them in countries without droit de suite provisions (e.g. United Kingdom) to avoid paying the royalty. This was deemed to be a distortion of the internal market (paras. 8–11 of the preamble), leading to the Directive.
For the droit de suite to apply, the work, the sale and the artist must all qualify. The work must be an original work of art or a copy made in limited numbers by the artist himself or under his authority, including "works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs" (Art. 2), and under copyright protection [Art. 8]. The sale must involve a professional party or intermediary, such as salesrooms, art galleries and, in general, any dealers in works of art [Art. 1]. The droit de suite does not apply to sales directly between private individuals without the participation of an art market professional, nor to sales by individuals to public museums (para. 18 of the preamble). The artist must be a national of a Member State or of another country which has droit de suite provisions: Member States are free, but not obliged, to treat artists domiciled on their territory as nationals (Art. 7).
Member States may set a minimum sale price below which the droit de suite will not apply: this may not be more than €3000 (Art. 3), or €10,000 where the seller acquired the work of art directly from the artist less than three years before the resale.
Portion of the net sale price royalty rate (Art. 4):
<€50,000 4%; €50,000 – €200,000 3%; €200,000 – €350,000 1%; €350,000 – €500,000 0.5%; >€500,000 0.25%.
Member States may apply a rate of 5% for the lowest portion of the resale price [Art. 4(2)]. The total amount of the royalty may not exceed €12,500: this corresponds to a net sale price of €2,000,000 using the normal royalty rates.
The droit de suite is an inalienable right of the artist, and may not be transferred except to heirs on death, nor waived even in advance [Arts. 1, 6]. Member States may provide for the optional or compulsory collective management by collecting societies [Art. 6(2)]. As a transitional provision, Member States which did not previously have droit de suite provisions may limit the application to works of living artists until 2010-01-01 [Art. 8].