A4-0030/97

Proposal for a European Parliament and Council Directive on the resale right for the benefit of the author of an original work of art (COM(96)0097 - C4-0251/96 - 96/0085(COD))

The proposal was approved with the following amendments:

(Amendment 1)

Recital -1 (new)

>Text following EP vote>

-1. Whereas the raison d'être of the artist's resale right is essentially to provide authors with financial support linked to the value of their works on the market;

(Amendment 2)

Recital 1

>Original text>

1. Whereas, in the field of copyright, the artist's resale right is an inalienable right enjoyed by the author of an original work of art or original manuscript to an interest in any sale of the work subsequent to the first transfer by the author;

>Text following EP vote>

1. Whereas the artist's resale right which forms part of copyright is an inalienable right, which can never be given up, enjoyed by the author of an original work of art and the rightful claimants thereto, to an economic interest in any successive transfers of his work;

>Text following EP vote>

(The deletion of the words 'or original manuscript' applies throughout the text.)

(Amendment 3)

Recital 2

>Original text>

2. Whereas the artist's resale right is intended to ensure that authors share in the economic success of their works; whereas it helps to redress the balance between the economic situation of authors and that of other creators who benefit from successive exploitations of their works;

>Text following EP vote>

2. Whereas the artist's resale right is intended to ensure that authors share in the economic success of their original works of art intended to be viewed; whereas it helps to redress the balance between the economic situation of authors of original works of art and that of other creators who benefit from successive exploitations of their works;

(Amendment 4)

Recital 5a (new)

>Text following EP vote>

5a. Whereas it results from the foregoing that the conclusion of an international Convention laying down obligatory resale rights would be desirable;

(Amendment 5)

Recital 6

>Original text>

6. Whereas the artist's resale right is currently provided for by the domestic legislation of a majority of Member States; whereas such laws, where they exist, display certain differences, notably as regards the works covered, those entitled to receive royalties, the rate applied, the sales subject to payment of a royalty, and the basis of assessment thereof; whereas the application or non- application of such a right has a significant impact on the competitive environment within the internal market; whereas as with any other parafiscal charge it is an element which must be taken in to account by each individual wishing to sell a work of art; whereas this right is therefore a factor which contributes to the creation of distortions of competition as well as displacements of sales within the Community;

>Text following EP vote>

6. Whereas the artist's resale right is currently provided for by the domestic legislation of a majority of Member States; whereas such laws, where they exist, display differences, notably as regards the works covered, the holders of the right, the rate applied, the transactions subject to payment of a royalty, and the basis on which these are calculated; whereas the application or non- application of such a right has a significant impact on the competitive environment within the internal market, since, as with parafiscal charges, the existence or absence of an obligation to pay on the basis of the artist's resale right is an element which must be taken in to account by each individual wishing to sell a work of art; whereas this right is therefore a factor which contributes to the creation of distortions of competition as well as displacements of sales within the Community;

(Amendment 6)

Recital 7

>Original text>

7. Whereas such disparities in the application of the artist's resale right 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 7a of the Treaty; whereas in such a situation Article 100a of the Treaty constitutes the appropriate legal basis;

>Text following EP vote>

7. Whereas such disparities with regard to the existence and application of the artist's resale right 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 7a of the Treaty; whereas in such a situation Article 100a of the Treaty constitutes the appropriate legal basis;

(Amendment 49)

Recital 13

>Original text>

13. Whereas the scope of the artist's resale right should be extended to any resale, with the exception of transactions between private individuals, of the work subsequent to the first sale by the author; whereas the artist's resale right therefore applies to transactions effected by all professional sellers, such as sales rooms, art galleries and, in general, any dealer in works of art;

>Text following EP vote>

13. Whereas the scope of the artist's resale right should be extended to any resale of the work subsequent to the first sale by the author or his legal heirs, or on its first being placed on the market, with the exception of the first transfer of ownership between sellers or between a seller and a final purchaser, within three years of the acquisition of the work by the seller, as well as those corresponding to transactions between private persons, and whereas the artist's resale right thus applies to all transactions which involve the participation of an art market professional, particularly those effected at public sales, in commercial premises or involving a seller or dealer.

(Amendment 9)

Recital 15

>Original text>

15. Whereas the categories of works of art subject to the artist's resale right should be harmonized; whereas works of applied art should be excluded;

>Text following EP vote>

15. Whereas the categories of works of art subject to the artist's resale right should be harmonized; whereas original manuscripts and works of applied art should be excluded;

(Amendment 10)

Recital 17

>Original text>

17. Whereas the non-application of the artist's resale right below the minimum threshold makes it possible to avoid disproportionately high collection and administration costs;

>Text following EP vote>

17. Whereas the establishing of a threshold below which transfers are not subject to the artist's resale right corresponds, as a general principle, to the disproportionate difference between the amount to be received by the artist as against the expense of exercising his rights; whereas, however, by virtue of the principle of subsidiarity, it is up to the Member States to regulate the exercise of the artist's right of resale, and within that framework to fix, where appropriate, national thresholds which are lower than the Community threshold and which could unquestionably therefore prove to be an efficient means of protecting the interests of artists just starting their careers;

(Amendment 11)

Recital 19

>Original text>

19. Whereas a system consisting of a tapering scale of rates for several price bands may help to prevent the Community rules on the artist's resale right from being circumvented; whereas the rates must reflect the interests both of artistic circles and of the art market;

>Text following EP vote>

19. Whereas the due weighting of the various interests involved in the market in original works of art makes it advisable to establish a system consisting of a tapering scale of rates for several price bands, which, while maintaining the principle of protecting creative artists as a social value underpinning European intellectual property law, would at the same time take into consideration the detrimental effect on both artists and professionals working in the art market of the relocation which could result from establishing excessively burdensome artist's resale rights;

(Amendment 12)

Recital 19a (new)

>Text following EP vote>

19a. Whereas it would broadly speaking be inappropriate to introduce a 0 (zero) rating because it would run entirely counter to the very reasons for which it had been introduced;

(Amendment 13)

Recital 21

>Original text>

21. Whereas provision should be made for the possibility of periodic adjustment of the threshold and rates; whereas, to this end, it is appropriate to entrust to the Commission the task of drawing up periodic reports on the practical effect of the application of the artist's resale right and, where appropriate, of making proposals for amendment of the threshold and rates;

>Text following EP vote>

21. Whereas provision should be made for the possibility of periodic adjustment of the threshold and rates; whereas, to this end, it is appropriate to entrust to the Commission the task of drawing up periodic reports on the actual application of the artist's resale right in the Member States and on the impact on the European art market and, where appropriate, of making proposals for amendment of the threshold and rates;

(Amendment 15)

Recital 23

>Original text>

23. Whereas Member States should be free to determine the procedures for collecting and managing the amounts paid over by virtue of the artist's resale right; whereas in this respect management by a collecting society is one possibility; whereas, however, Member States must ensure that amounts intended for authors who are nationals of other member States are in fact collected and distributed;

>Text following EP vote>

23. Whereas the Member States are responsible for regulating the exercise of the artist's resale right, particularly with regard to the way this is managed; whereas in this respect management by a collecting society is one possibility; whereas, however, Member States must ensure that amounts intended for authors who are nationals of other member States are in fact collected and distributed;

(Amendment 17)

Article 1

>Original text>

Member States shall provide, for the benefit of the author of an original work of art, an artist's resale right, to be defined as an inalienable right to receive a percentage of the sale price obtained from any resale of the work , with the exception of transactions effected by individuals acting in their private capacity, subsequent to the first transfer of the work by the author;

>Text following EP vote>

Member States shall provide, for the benefit of the author of an original work of art, an artist's resale right, to be defined as an inalienable right which cannot be given up prematurely or otherwise, to receive a percentage of the price obtained from any resale of the work by public sale, in a commercial establishment or with the involvement of a seller or dealer, with the exception of the first transfer of ownership between sellers or between a seller and a final purchaser, provided such a transaction takes place within three years of the seller having acquired the work.

(Amendments 18 and 64)

Article 2

>Original text>

For the purposes of this Directive, 'original work' means manuscripts and works of plastic art such as pictures, collages, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics and photographs, provided they are made by the artist himself or are copies considered to be original works of art according to professional usage in the Community.

>Text following EP vote>

For the purposes of this Directive, 'original work' means works intended to be viewed such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, glass, tapestries, ceramics and photographs, provided they are made by the artist himself or are copies considered to be original works of art according to the relevant legal provisions in each Member State, but which may under no circumstances be more than twelve in number.

(Amendment 45)

Article 3

>Original text>

1. Royalties collected pursuant to Article 1 shall be payable when the sale price is equal to or higher than ECU 1 000.

>Text following EP vote>

1. It shall be for the Member States to set a minimum threshold above which sales shall be subject to resale rights.

>Original text>

2. Member States may fix a national threshold which is lower than the threshold laid down in paragraph 1.

>Text following EP vote>

2. This threshold may not under any circumstances exceed ECU 500.

(Amendment 51)

Article 3a (new)

>Text following EP vote>

Article 3a

Calculation basis

The amount of the author's resale right shall be determined by the difference between the purchase price paid by the person liable to tax and the amount invoiced. The purchase price shall be the amount which results after deduction of taxes, restoration costs and any other costs that do not arise from the creation of the work.

(Amendments 57 and 34/rev.)

Article 4

>Original text>

The royalty collected pursuant to Article 1 shall be set at the following rates:

(a) 4% of the sale price between ECU 1 000 and ECU 50 000;

(b) 3% of the sale price between ECU 50 000 and ECU 250 000;

(c) 2% of the sale price above ECU 250 000.

The royalty shall be payable by the seller.

>Text following EP vote>

1. The artist's resale right calculated on the basis laid down in the foregoing article shall be set at the following rates:

(a) 4% of the sale price between ECU 500 and ECU 50 000;

(b) 3% of the sale price between ECU 50 000 and ECU 100 000;

(c) 1% of the sale price above ECU 100 000.

2. Should a lower threshold than ECU 500 be established, the Member State shall set the applicable percentage, which may not be lower than 4%.

3. The royalty shall be payable by the seller.

(Amendment 22)

Article 5

>Original text>

Article 5

>Text following EP vote>

Deleted

>Original text>

Calculation basis

>Original text>

The sale prices referred to in Articles 3 and 4 are net of tax.

(Amendment 55)

Article 6(1)

>Original text>

1. The royalty collected under Article 1 shall be payable to the author of the work and, after his death, to those entitled under him.

>Text following EP vote>

1 The royalty collected under Article 1 shall be payable to the author of the work and, after his death, to his legal heirs.

(Amendment 52)

Article 6(2)

>Original text>

2. Member States may provide for the collective management of sums paid over by virtue of the artist's resale right. They shall determine the arrangements for collecting and distributing royalties where the author is a national of another Member State.

>Text following EP vote>

2. The management of sums paid over by virtue of the artist's resale right shall be the responsibility of the author, who may arrange for collective management thereof.

(Amendment 24)

Article 7

>Original text>

Member States shall provide that authors who are nationals of third countries shall enjoy the artist's resale right in accordance with this Directive, provided that authors from the Member States enjoy reciprocal treatment in the third countries concerned..

>Text following EP vote>

Member States shall provide that authors who are nationals of third countries shall enjoy the artist's resale right in accordance with this Directive and their internal legislation, provided that authors from the Member States enjoy reciprocal treatment in the third countries concerned.

(Amendment 25)

Article 8

>Original text>

Duration of the artist's resale right.

>Text following EP vote>

Natural lapse of the artist's resale right by the process of time

>Original text>

The artist's resale right shall last for the period laid down in Article 1 of Directive 93/98/EEC.

>Text following EP vote>

The artist's resale right shall lapse when the deadline laid down in Article 1 of Directive 93/98/EEC is reached.

(Amendment 26)

Article 9

>Original text>

Right to obtain information

>Text following EP vote>

Right to obtain information

>Original text>

The author or his authorized representative may enquire any dealer, sales director or organizer of public sales to furnish any information that may be necessary in order to secure payment of sums payable under the artist's resale right during the previous year of original works of art..

>Text following EP vote>

For three years from the date of transfer, the management of commercial establishments or of public sales and sellers and commercial dealers shall be obliged to supply authors or their authorized representatives on request with any information that may be necessary to secure payment of the sum payable under the artist's resale right.

(Amendment 27)

Article 10

>Original text>

The Commission shall present to the European Parliament, the Council and the Economic and Social Committee not later than 1 January 2004 and every five years thereafter a report on the implementation of this Directive and shall, where appropriate, put forward proposals for adjusting the minimum threshold and the rates of the royalties to take account of changes in the sector.

>Text following EP vote>

The Commission shall present to the European Parliament, the Council and the Economic and Social Committee not later than 1 January 2002 and every three years thereafter a report on the implementation and impact of this Directive, paying particular attention to its impact on the European market in modern and contemporary art, especially as regards the fostering of artistic creativity and the management procedures in the Member States, and shall, where appropriate, put forward proposals for adjusting the minimum threshold and the rates of the royalties to take account of changes in the sector, and any other proposal it may deem necessary in order to enhance the effectiveness of this Directive.

Legislative resolution embodying Parliament's opinion on the proposal for a European Parliament and Council Directive on the resale right for the benefit of the author of an original work of art (COM(96)0097 - C4-0251/96 - 96/0085(COD))

(Codecision procedure : first reading)

The European Parliament

- having regard to the Commission proposal to the European Parliament and the Council COM(96)0097 - 96/0085(COD) ((OJ C 178, 21.6.1996, p. 16.)),

- having regard to Article 189b (2) and Article 100a of the EC Treaty, pursuant to which the Commission has submitted its proposal (C4-0251/96),

- having regard to Rule 58 of its Rules of Procedure,

- having regard to the report by the Committee on Legal Affairs and Citizens' Rights and the opinion of the Committee on Culture, Youth, Education and the Media (A4-0030/97),

1. Approves the Commission proposal subject to the amendments made by Parliament;

2. Calls on the Commission to amend its proposal accordingly pursuant to Article 189a (2) of the EC Treaty;

3. Calls on the Council to incorporate Parliament's amendments in the common position that it adopts in accordance with Article 189b (2) of the EC Treaty;

4. Should the Council intend to depart from the text approved by Parliament, calls on the Council to notify Parliament and request that the conciliation procedure be initiated;

5. Points out that the Commission is required to submit to Parliament any modification it may intend to make to its proposal as amended by Parliament;

6. Instructs its President to forward this opinion to the Council and Commission.