Amended proposal for a European Parliament and Council Directive on the resale right for the benefit of the author of an original work of art
Date: 1998-03-12
Institutions: European Commission
Subjects: approximation of laws, art trade, copyright, profit, work of art

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 12.03.1998 
COM(1998) 78 final 

96/ 0085 (COD) 

Amended proposal for a 

EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 

on the resale right for the benefit of the author of an original work of art 

(presented by the Commission pursuant to Article 189 a (2) 
of the EC-Treaty) 

EXPLANATORY MEMORANDUM 

I. 

GENERAL 

1.  On  25 April  1996  the  Commission  presented  the  Council  with  a  proposal  for  a 
European Parliament and Council Directive on the resale right for the benefit  of the 
author of an original work of art.l 

At its meeting on 18 December 1996, the Economic and Social Committee delivered 
a favourable opinion on the proposal.2 

Parliament,  consulted  under  the  co-decision  procedure,  examined  the  proposal  in 
detail  in  its  committees.  On  8 April 1997,  it  debated  the  report  drawn  up  by 
Mrs Ana Palacio Vallelersundi  on  behalf  of  the  Committee  on  Legal  Affairs  and 
Citizens'  Rights,  and  at  its  plenary  sitting  of  9 April  adopted  the  proposal  with 
amendments.3 

In this amended proposal for a Directive, the Commission has tried to take account 
of  Parliament's  opinion.  Compared  with the  original  text,  it has  introduced  three 
substantive  amendments  and  made  a  number  of  changes  designed  to  make  the 
proposal more accurate and clearer. 

2.  The  substantive  amendments  proposed  by  Parliament  and  accepted  by  the 

Commission relate to: 

(a) 

the exclusion of manuscripts from the original works of art concerned by resale 
right (recitals 1  and  15;  Article 2); 

(b) 

the introduction  of a minimum rate where a national threshold  lower than the 
Community threshold is applied (recital 17;  Article 4); 

(c) 

the  extension  of  the  period  during  which  the  author  or  his  authorised 
representative  may  request  the  information  necessary  in  order  to  secure 
payment under the resale right (Article 9). 

1  OJC  178,21.6.1996, p. 16. 
2  OJC 75, 10.3.1997, p. 17. 
3  OJC  132, 28.4.1997, p. 88. 

3.  The  main  changes  of  a  drafting  nature  accepted  by  the  Commission  relate  to  the 

following points: 

(a) 

the  unassignable  and  inalienable  nature  of  the  resale  right,  and  the  basis  of 
resale right (recitals 1  and 2, Article 1); 

(b) 

the integral inclusion of a recital on the definition of resale right (recital  la); 

(c) 

the  integral  inclusion  of  a  recital  calling  for  the  introduction,  in  a  binding 
manner, of resale rights at international level (recital 5a); 

(d) 

the advantage  of harmonising  resale right with  a view to ensuring  the  proper 
functioning  of the internal market (recitals 6 and 7); 

(c) 

the transactions giving rise to resale right (recital 13); 

(f) 

the  composition  of  the  sale  price  bands  and  the  tapering  scale  of  rates 
(recital 9;  Articles 3 and 4); 

(g) 

the term of resale right, in conjunction  with Directive 93/98/EEC harmonising 
the term of protection of copyright and certain related rights (Article 8); 

(h) 

the procedures for the revision clause (recital 21); 

(i) 

the procedures for managing the sums paid (recital 23;  Article 6). 

The  Commission  accepts  21 of  Parliament's  28 amendments  in  whole  or  in  part, 
subject in certain cases to the adjustment  of the various language versions. 

4.  The  amendments  or  parts  of  amendments  not  adopted  by  the  Commission  for 

reasons of substance concern: 

(a) 

the exemption of the first transfer  of ownership between dealers or between a 
dealer and a final purchaser, provided that the transfer takes place within three 
years of the acquisition of the work of art by the dealer.  This amendment was 
rejected,  since Article 14terof the  Berne Convention  provides  that  resale  right 
applies  to  any  resale.  The  legislations  of  the  11 Member States  which  have 
established  resale right follow  Article  14ter and do not distinguish between the 
various participants  on the  market  for  contemporary  art  (amendments  17 and 
49); 

(b) 

(c) 

(d) 

the  use, as a basis  for  calculation,  of the  difference  between  the  price  obtained 
when  the  work  of  art  is  sold  and  the  purchase  price  initially  paid  by  the  seller 
(excluding  loss-making  transactions).  This  amendment  was  rejected,  since 
Article  14,er  of the Berne Convention  indicates that the tax base  for  resale  right 
is  the  sale  price,  irrespective  of  the  success  obtained  by  the  work.  The 
legislations  of  all  the  Member  States  which  apply  resale  right  are  consistent 
with  Article  14ter.  Only  one  Member  State  has  taken  value  added  as  the  tax 
base  for  certain  resale  transactions,  and  it  has  to  be  concluded  that,  given  the 
practical  difficulties,  such  statutory  provisions  have  only  a  formal  value.  The 
amendment  impairs  the  consistency  of  the  text,  since  some  of  the  articles  left 
intact  by  Parliament  provide  that  resale  right  is  paid  on  the  basis  of  the  sale 
price and not of the value added (amendment  51); 

the  restriction  of  entitled  parties  to  the  author's  legal  heirs.  This  amendment 
was  rejected,  since  resale  right  like  all  copyright  is  an  economic  right  and, 
accordingly,  is  covered  by  the  freedom  of  the  rightholder  to  transmit  his 
property  right  to  the  heir  of  his  choice  (fundamental  freedom  to  bequeath). 
The  law  of  inheritance  is,  at  present,  a  matter  entirely  for  the  Member  States 
and  cannot  be  affected,  even  indirectly,  by  the  principle  of  subsidiarity 
(amendment  55); 

the  new  price  bands  and  the  reduction  of  the  rates  applicable  to  resale  right. 
The  Commission  rejected  this  amendment,  since  it  thought  it  would  involve 
too  big  a  fall  in  the  income  of the  authors  of  plastic  and  graphic  works  of  art 
compared  with  the  current  situation  in  those  Member  States  which  have 
adopted  resale  right.  The  Commission's  proposal  takes  account,  however,  of 
the  different  interests  involved,  by  providing  for  a  lower  base  rate  than  that 
currently  applied  in most of the Member  States and for  a tapering  scale of rates 
for  the  price  bands,  whereas,  at  the  moment,  Member  States  can  only  apply 
single rates (amendment 57); 

(e)  The  inclusion  of  glass  among  the  original  works  of  art  giving  rise  to  resale 
right.  This amendment  was rejected  by the  Commission  on the grounds that  it 
is  generally  accepted,  both  under  Article  14ter of  the  Berne  Convention  and  in 
the legislation of the Member  States on resale right, that the applied arts are not 
included among works of art covered by resale right (amendment 64); 

(f) 

the  limitation  to  twelve  copies  maximum  of  works  of  art  considered  to  be 
original.  This amendment was rejected  by the Commission on the grounds that 
a greater number of copies of some of the works of art concerned  may be  made 
while  still  being  considered  by  the  profession  and  by  collectors  as  original 
(lithographs, photographs, etc.) (amendments  18 and 64); 

(g) 

the procedures  for the revision clause (date of the first report and the  frequency 
of subsequent  reports), since the time limit proposed  by Parliament  is too  short 
to allow the practical  impact of the Directive to be assessed  (amendment 27). 

II. 

COMMENTS ON THE RECITALS 

Recitals 1, la  and 2 
These recitals are based on amendments  1, 2 and 3. 
See the comments on Article 2. 

Recital 5a 
This recital fully  incorporates amendment 4. 
Article  14ter of the Berne Convention is an optional provision; the amendment proposes to 
make the introduction of resale right at international level obligatory. 

Recital 6 
The recital incorporates amendment 5 in slightly altered form. 
The amendment clarifies the wording in particular with regard to harmonisation of resale 
right with a view to ensuring the proper functioning  of the internal market. 

Recital 7 
The recital incorporates amendment 6.  It improves the wording. 

Recital 13 
This recital is based on amendment 49. 
The  change made  is intended  to  specify  the persons  involved  in the  transaction  giving 
rise to resale  right. 

Recital 15 
The recital  incorporates  amendment  9 and  is intended  to  exclude  manuscripts  from  the 
scope of the amended proposal. 
See the comments on Article 2. 

Recital 17 
The recital is based on amendment 10. 
See the comments on Article 4. 

Recital 19 
The recital is based on amendment  11. 
It stresses the attention paid to the various interests in question when the Directive  was 
drawn up.  It establishes a link between the selection of a tapering  scale of rates for  the 
different  price bands and the desire to reduce the risk of sales being relocated. 

Recital 21 
The recital incorporates amendment  13 in conjunction with amendment 27. 
See the comments on Article 10. 

Recital 23 
The recital incorporates amendment 15. 
This  change  stresses  that  it  is  for  the  Member States  to  regulate  the  exercise  of  resale 
right and in particular the procedures for its management. 

<ïffîc&}mMMiMSBm*wwmjŒmcLE& 

Article 1 

Amendment  17 has been incorporated in part into Article  1  in a manner which highlights 
the inalienable character of resale right. 

Article 2 

Amendments  18  and  64  have  been  partly  incorporated  in  Article 2.  Manuscripts  are 
consequently  excluded  from  the  scope  of the  proposal.  Although  they  are  covered  by 
Article 14ter of the Berne Convention, the original manuscripts of authors and composers 
are rarely of major  importance as far as the generation of income is concerned.  Income 
arises, rather, from the right of reproduction. 

The amendment makes it possible to define more accurately the scope of resale right with 
regard to plastic and graphic works of art. 

The  text  also  makes  it  clearer  that  resale  right  is  exercised  upon  the  alienation  of  a 
tangible object  which is deemed to be original.  Thus it is the originality of the physical 
medium  of the creative work which is important  in this case and not the creation itself. 
In most  such cases, the medium  is a single copy. In others, the right  will also apply  to 
limited editions, though it is not appropriate to fix the number of these in the Directive. 

Article 3 

The amended text incorporates amendment 45, as regards structure and presentation. 

Article 4 

The amended  article  incorporates, as regards structure  and presentation,  amendments 57 
and 34.  It is more explicit as far as the composition of the bands and the tapering scale of 
rates  are  concerned.  It  clarifies  the  right  given  to  the  Member States,  provided  for  by 
Article 3(2) of the initial proposal, to fix a national threshold lower than the Community 
one.  It  also  introduces  a  minimum  percentage,  should  the  Member State  make  use  of 
such a possibility. 

Article 6(2) 

The article is based on amendment 52.  The rest of the text, which is of illustrative value, 
has been incorporated in recital 23. 

Article 7 

incorporates  amendment 24. 

This  article 
in  the 
Member States of third-country  nationals by granting equivalent  treatment  to that given 
to  nationals  of  Member States,  where  the  level  in  the  third  country  concerned 
corresponds, in practice, to that in the Community Directive. 

It  strengthens  the  protection 

Article 8 

This article incorporates amendment 25.  Its wording has been slightly changed. 

Article 9 

The article incorporates amendment 26, slightly modified  in its wording.  The period  in 
which  the author  or his authorised  representative may request  information  necessary  to 
secure payment of the resale right goes up from one to three years, and the start of such 
period  is  fixed  as  the  date  of  the  transaction  itself.  The  amendment  increases  the 
possibility  of supervising transactions and, accordingly, facilitates  the exercise of resale 
right by its holder, without however imposing on the various operators formalities  which 
are too restricting. 

Article 10 

The modified text incorporates amendment 27 in part. 
It clarifies  in an appropriate manner certain features which have to be taken into account 
by  the  Commission  when  preparing  its  report.  It  broadens  the  scope  of  any  future 
proposal. 

•••••--  - Amended proposal for a 

EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE 

on the resale right for the benefit of the author of an original work of art 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN 
UNION, 

Initial proposal 

Amended proposal 

Having  regard  to  the  Treaty  establishing  No change, 
the European Community, and in particular 
Article  100a thereof, 

Having  regard  to  the  proposal  from  the  No change. 
Commission,4 

Having  regard 
Economic and Social Committee,5 

to  the  opinion  of  the  No change. 

Acting  in  accordance  with  the  procedure  No change, 
laid down in Article 189b of the Treaty,6 

4  OJC  178, 21.6.1996, p.  16. 
5  OJC  75,  10.3.1997, p. 17. 
6  Opinion  of the European  Parliament,  9.4.1997. 

7 

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; 

1.  Whereas, in the field of copyright, the 
artist's  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; 

the  author/artist 

la.  Whereas  the  artist's  resale  right  is  a 
right  of  a  productive  character  which 
enables 
receive 
consideration for successive transfers of the 
work;  whereas  the  subject-matter  of  the 
artist's  resale  right  is  the  physical  work, 
namely the medium  in which the  protected 
work is incorporated; 

to 

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; 

2.  Whereas  the  artist's  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; whereas  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; 

3.  Whereas the artist's resale right forms 
an  integral  part  of  copyright  and  is  an 
essential  prerogative  for  authors;  whereas 
the  imposition  of  such  a  right  in  all 
Member States  meets 
for 
providing  creators  with  an  adequate  and 
standard level of protection; 

the  need 

4.  Whereas  under  Article  128(4)  of  the 
EC Treaty  the  Community 
is  to  take 
cultural  aspects  into  account  in  its  action 
under other provisions of the Treaty; 

to 

if  legislation 

5.  Whereas  the  Berne  Convention  for 
the  Protection  of  Literary  and  Artistic 
Works provides that the artist's resale right 
is  available  only 
in  the 
country  to  which  the  author  belongs  so 
permits;  whereas  the  right  is  therefore 
optional  and  subject 
the  rule  of 
reciprocity;  whereas  it  follows  from  the 
case-law  of  the  Court  of  Justice  of  the 
European  Communties  on  the  application 
of  the  principle  of  non-discrimination  laid 
down  in  Article 6  of  the  EC Treaty,  as 
shown in the judgment  of 20 October 1993 
in  Joined Cases  C-92/92  and  C-326/92 
Phil Collins  and  others,7 
that  domestic 
provisions  containing  reciprocity  clauses 
cannot  be  relied  upon  in  order  to  deny 
nationals  of  other  Member States  rights 
conferred  on national  authors; whereas the 
application  of 
the 
Community  context  runs  counter  to  the 
principle  of equal  treatment  resulting  from 
the  prohibition  of  any  discrimination  on 
grounds of nationality; 

such  clauses 

in 

resale 

5a.  Whereas  it  would  seem  desirable  to 
introduce  obligatory 
rights  at 
international  level; whereas the contracting 
parties  to  the  Berne  Convention  should 
therefore  make  Article 14ter  of 
that 
instrument compulsory; 

[1993] ECR 1-5145. 

laws,  where 

6.  Whereas  the  artist's  resale  right  is 
currently  provided  for  by  the  domestic 
legislation  of  a majority  of  Member  States; 
whereas  such 
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 
the 
right  has  a  significant 
the 
competitive 
internal  market;  whereas  as  with  any  other 
parafiscal  charge  it  is  an  element  which 
into  account  by  each 
must  be 
individual  wishing  to  sell  a  work  of  art; 
whereas  this  right  is  therefore  a  factor 
which  contributes 
the  creation  of 
to 
distortions  of  competition  as  well  as 
displacements 
the 
Community; 

environment  within 

sales  within 

impact  on 

taken 

of 

laws,  where 

the  rate  applied, 

6.  Whereas  the  artist's  resale  right  is 
currently  provided  for  by  the  domestic 
legislation  of  a majority  of  Member  States; 
whereas  such 
they  exist, 
display  certain  differences,  notably  as 
regards the works  covered, those entitled  to 
receive  royalties, 
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 
the  competitive 
significant 
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  into  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 
the 
displacements 
Community; 

sales  within 

impact  on 

of 

in 

such  disparities 

the 
7.  Whereas 
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  EC 
Treaty  constitutes  the  appropriate  legal 
basis; 

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  EC  Treaty  constitutes  the 
appropriate legal basis; 

10 

to 

belonging 

the  objectives  of 

8.  Whereas 
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 
the 
Community,  and  ensuring  their  economic 
and  social  progress  by  common  action  to 
eliminate the barriers which divide Europe; 
whereas 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 by the introduction of a 
system  ensuring  that  competition  in  the 
common  market  is  not  distorted;  whereas 
harmonization  of  Member States'  laws  on 
the  artist's  resale  right  contributes  to  the 
attainment of these objectives; 

Council 

9.  Whereas 
Directive 
77/388/EEC,8  as  amended  by  Directive 
94/5/EC,9 
supplementing  the  common 
system  of  value-added  tax  progressively 
introduces a Community system of taxation 
applicable  inter  alia  to  works  of  art; 
whereas measures confined  to the tax field 
are  not 
the 
harmonious  functioning  of  the  art  market; 
whereas  this  objective  cannot  be  attained 
without  harmonisation  in  the  field  of  the 
artist's resale right; 

to  guarantee 

sufficient 

8  OJL  145, 13.6.1977, p. 1. 
9  OJL  60, 3.3.1994,  p. 16. 

11 

10.  Whereas 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;  whereas  there  is  no  need  to 
eliminate  or  prevent  the  emergence  of 
differences  which  cannot  be  expected  to 
affect 
internal 
market; 

the  functioning  of 

the 

to 

provision 

it 
every 

is  not  necessary 

to 
11.  Whereas 
harmonise 
of 
Member States'  laws  on  the  artist's  resale 
right; whereas  it will  be  sufficient  to  limit 
the  harmonisation  exercise 
those 
domestic  provisions  which  have  the  most 
direct  impact  on  the  functioning  of  the 
internal  market;  whereas,  however,  the 
objectives  of  this  limited  harmonisation 
exercise cannot be sufficiently  achieved by 
the  Member States  acting  alone;  whereas, 
in  accordance  with  the  third  paragraph  of 
Article 3 b  of  the  Treaty,  the  proposed 
course  of action  does not  go beyond  what 
is necessary to achieve the abovementioned 
objectives;  whereas 
is 
therefore, in its entirety, consistent with the 
requirements 
of 
subsidiarity and proportionality; 

this  Directive 

principles 

the 

of 

12.  Whereas, 
to  Council 
pursuant 
Directive 93/98/EC,10 the term of copyright 
runs  for  70  years  after  the  author's  death; 
whereas  the  same  period  should  be  laid 
down for the artist's resale  right;  whereas, 
consequently,  only  the  originals  of  works 
of  contemporary  or  modern  art  may  fall 
within the scope of the artist's resale right; 
of 
whereas, 
contemporary  or  modern  art  occupy  a 
relatively  modest  place  among  sales  by 
public auction; 

general,  works 

in 

10  OJL 290, 24.11.1993, p. 9. 

12 

to 

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 
the 
rightholder; whereas the artist's resale right 
therefore applies to transactions effected  by 
or  with  the  participation  of  an  art  market 
professional,  all  professional  sellers,  such 
as  salerooms,  art  galleries  and,  in  general, 
any dealer in works of art; 

the  first  sale  by 

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 salesrooms, art 
galleries  and,  in  general,  any  dealer  in 
works of art; 

14.  Whereas effective  rules should be laid 
down  based  on  experience  already  gained 
at  national  level  with  the  artist's  resale 
right; whereas 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; 

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

harmonised; 

whereas 

16.  Whereas  the  fixing  of  a  Community 
minimum  threshold  for  the  application  of 
the artist's resale right takes account of the 
requirements  of 
internal  market; 
the 
whereas,  however,  Member States  should 
be  given  the  opportunity  to  fix  national 
thresholds  which  are 
the 
Community  threshold  so  as  to  further  the 
interests of young artists; 

lower 

than 

13 

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

it  possible 

18.  Whereas the rates set by the  different 
Member States  for  the  application  of  the 
artist's  resale  right  vary  considerably  at 
present;  whereas  the  effective  functioning 
of 
in  works  of 
contemporary  or  modern  art  requires  the 
fixing of uniform rates; 

internal  market 

the 

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; 

and 

administration 

17.  Whereas 
the  non-application  of 
royalties  below  the  minimum  threshold 
may  help  to  avoid  disproportionately  high 
collection 
costs 
compared  with  the  profit  for  the  artist; 
whereas,  however,  in  accordance  with  the 
the  Member 
principle  of  subsidiarity, 
States  should  be  allowed 
to  establish 
the 
lower 
national 
Community threshold, so as to promote the 
interests of new artists; whereas, given  the 
small  amounts  involved,  this derogation  is 
not likely to have a significant  effect  on the 
proper functioning  of the internal market; 

thresholds 

than 

the 

intention  of  reconciling 

19.  Whereas  it  is  desirable  to  establish, 
with 
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; whereas it is important to reduce the 
risk 
the 
circumvention  of  the  Community  rules  on 
the artist's resale  right; 

relocating 

sales 

and 

of 

the  person 

for 
liable 
20.  Whereas 
is  the  seller; 
payment  of  the  royalty 
whereas 
the  person  or 
undertaking  on  whose  behalf  the  sale  is 
concluded; 

latter 

the 

is 

14 

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 
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; 

the 

the  persons  entitled 

22.  Whereas 
to 
receive  royalties  must  be  specified,  due 
regard  being  had 
to  the  principle  of 
subsidiarity;  whereas  it  is  not  appropriate 
to  take  action  through  this  Directive  in 
laws  of 
to  Member States' 
relation 
succession;  whereas,  however, 
those 
entitled  under  the  author  must  be  able  to 
benefit  fully  from  the resale right after  his 
death; 

the  procedures 

23.  Whereas  Member States  should  be 
free  to  determine 
for 
collecting  and  managing  the  amounts paid 
over  by  virtue  of  the  artist's  resale  right; 
whereas  in  this  respect  management  by  a 
collecting 
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; 

society 

the 

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 
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 
the 
proposals 
amendment of this Directive; 

relating 

to 

this 

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 
the 
collecting 
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; 

respect  management  by 

society 

15 

right  must  be 

24.  Whereas  enjoyment  of  the  artist's 
resale 
to 
Community  nationals  and  foreign  authors 
whose  countries  afford  such  protection  to 
authors 
of 
are 
who 
Member States; 

restricted 

nationals 

should 

25.  Whereas  appropriate  procedures  for 
be 
transactions 
monitoring 
introduced  so  as  to  ensure  by  practical 
means  that  the  artist's  resale  right 
is 
effectively  applied  by  Member States; 
whereas  this  implies  a right  on  the  part  of 
the  author  or  his  authorised  representative 
to  obtain  any  necessary  information  from 
the person liable for payment of royalties, 

HAVE ADOPTED THIS DIRECTIVE: 

16 

COMMISSION'S INITIAL PROPOSAL 

PROPOSAL  AMENDED  FOLLOWING 
THE  OPINION  OF  PARLIAMENT  OF 
9 APRIL 1997 

CHAPTER I 

Scope 

CHAPTER I 

Scope 

Article 1 

Article 1 

Subject-matter of the artist's resale right 

Subject-matter of the artist's resale right 

for 

the 
Member States  shall  provide, 
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  exception  of 
transactions  effected  by  individuals  acting 
in their  private  capacity,  subsequent  to the 
first  transfer of the work by the author. 

the  work,  with 

for 

the 
Member States  shall  provide, 
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,  even  in  advance,  to  receive  a  royalty 
based  on  the  sale  price  obtained  for  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. 

Article 2 

Article 2 

Works of art to which the artist's resale 
right relates 

Works of art to which the artist's resale 
right relates 

For the purposes of this Directive, "original 
work"  means  manuscripts  and  works  of 
plastic  art  such  as  pictures,  collages, 
paintings,  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. 

For the purposes of this Directive, "original 
work"  means  works  of  graphic  or  plastic 
art  such  as  pictures,  collages,  paintings, 
drawings,  engravings,  prints,  lithographs, 
sculptures, 
and 
photographs,  provided  they  are  made  by 
the  artist  himself  or  are  copies  considered 
to be original works of art. 

tapestries, 

ceramics 

17 

CHAPTER II 

CHAPTER II 

Particular provisions 

Particular provisions 

Article 3 

Threshold 

Article 3 

Threshold 

collected 

1.  Royalties 
pursuant 
Article  1  shall  be  payable  when 
sale price 
ECU 1  000. 

to  1.  It shall be for the Member States to set 
the  a  minimum  threshold  above  which  the 
to  or  higher  than  sales  referred  to  in  Article  1  shall  be 
subject to resale right. 

is  equal 

2.  Member States  may  fix  a  national  2. 
threshold which is lower than the threshold  circumstances exceed ECU 1  000. 

This  threshold  may  not  under  any 

laid down in paragraph 1. 

Article 4 

Article 4 

Rates and collection 

Rates and collection 

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

to 
Article 1  shall be set at the following rates: 

(a)  4%  of 
ECU 1  000 and ECU 50 000; 

3%  of 

(b) 
ECU 50 000 and ECU 250 000; 

the  sale  price  between  (a)  4%  for  the  sale  price  band  between 

ECU 1  000 and ECU 50 000; 

the  sale  price  between  (b)  3%  for  the  sale  price  band  between 

ECU 50 000 and ECU 250 000; 

2%  of 
(c) 
ECU 250 000. 

the  sale  price  above  (c)  2% for  the  sale  price  band  exceeding 
ECU 250 000. 

2.  If the threshold set should be lower than 
ECU 1 000,  the  Member  State  shall  also 
determine the percentage applicable, which 
may not be lower than 4%. 

The royalty shall be payable by the seller. 

3.  The  royalty  shall  be  payable  by  the 
seller. 

18 

Article 5 

Calculation basis 

Article 5 

Calculation basis 

The sale prices referred to in Articles 3 and  No change. 
4 are net of tax. 

Article 6 

Article 6 

Persons entitled to receive royalties 

Persons entitled to receive royalties 

1.  The  royalty  collected  under  Article 1  No change, 
shall be payable to the  author  of the work 
and, after  his death, to those entitled under 
him. 

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

the  arrangements 

2.  Member States  may  provide 
for 
collective  management  of  sums  paid  over 
by  virtue of the artist's resale right. 

Deleted. 

[Reinserted in recital 23] 

Article 7 

Article 7 

Third-country nationals entitled to receive 
royalties 

Third-country nationals entitled to receive 
royalties 

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. 

Member States  shall lay down 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 practice in the third countries concerned. 

19 

Article 8 

Article 8 

Duration of the artist's resale 

right 

Duration of the artist's resale àght 

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

Article 1 of Directive 93/98/EEC. 

Article 9 

Article 9 

Right to obtain information 

Right to obtain information 

The author or his authorised representative  The Member States shall lay down mat for 
three years from the date of the transaction, 
may  require  any  dealer,  sales  director  or 
organiser  of  public  sales  to  furnish  any 
the  author  or  his  authorised  representative 
information  mat may be necessary in order  may  require  any  dealer  and  commercial 
to  secure  payment  of  sums  payable  under  agent, sales director or organiser  of public 
the artist's resale right in respect of the sale  sales to  furnish  any  information  that  may 
during  the  past  year  of  original  works  of  be necessary in order to secure payment of 
royalties  in  respect  of the  sale  during  the 
art. 
past  year  of  original  works  of  ait  as 
referred to in Article 2. 

20 

CHAPTER III 

Final provisions 

CHAPTER III 

Final provisions 

Article 10 

Revision clause 

Article 10 

Revision clause 

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. 

on 

report 

thereafter 

The  Commission  shall  present  to  the 
European  Parliament,  the  Council  and  the 
Economic  and  Social  Committee  not  later 
than  on  1  January 2004  and  every  five 
years 
the 
a 
implementation  and  the  effect  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. Where appropriate, the Commission 
shall put forward proposals for adapting the 
minimum threshold and the rates of royalty 
to  take  account  of  changes  in  the  sector, 
and  any  other  proposal  it  may  deem 
the 
necessary 
effectiveness  of this Directive. 

to  enhance 

in  order 

21 

Article 11 

Implementation 

Article 11 

Implementation 

and 

regulations 

1.  Member States shall bring into force the  No change, 
laws, 
administrative 
provisions  necessary  to  comply  with  this 
Directive  before  1  January  1999.  They 
shall 
thereof 
inform 
immediately. 

the  Commission 

adopt 

these 
When  Member States 
provisions,  these  shall  contain  a  reference 
to  this  Directive  or  shall  be  accompanied 
by  such  reference  at  the  time  of  their 
official  publication.  The  procedure  for 
such  reference 
shall  be  adopted  by 
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  12 

Entry into force 

Article  12 

Entry into force 

This  Directive  shall  enter  into  force  on the  No change. 
20th day  following  its  publication  in  the 
Official 
the  European 
Communities. 

Journal 

of 

Article 13 

Article 13 

This Directive is addressed to the 
Member States. 

No change. 

Done at 

, 

For the European Parliament 

The President 

For the Council 

The President 

22 

ISSN 0254-1475 

COM(98) 78  final 

DOCUMENTS 

EN 

06  09  10 

Catalogue number  :  CB-C0-98-146-EN-C 

ISBN  92-78-31898-1 

Office  for Official  Publications of the European Communities 

L-2985 Luxembourg 

&3