CELEX: 51998PC0078
Language: en
Date: 1998-03-12
Title: 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

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)
 ---pagebreak---  ---pagebreak---                            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.
 ---pagebreak--- 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);
 ---pagebreak--- (b) 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);
(c) 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);
(d) 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).
 ---pagebreak---  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.
 ---pagebreak--- <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.
 ---pagebreak--- Article 7
This article incorporates amendment 24.            It strengthens the protection 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.
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.
 ---pagebreak---                            •••••-- - 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 to the opinion of the No change.
Economic and Social Committee,5
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
 ---pagebreak--- 1. Whereas, in the field of copyright, the     1. Whereas, in the field of copyright, the
artist's resale right is an inalienable right  artist's resale right is an unassignable and
enjoyed by the author of an original work      inalienable right enjoyed by the author of
of art or original manuscript to an interest  an original work of graphic or plastic art to
in any sale of the work subsequent to the     an economic interest in successive sales of
first transfer by the author;                 the work concerned;
                                               la. Whereas the artist's resale right is a
                                              right of a productive character which
                                              enables the author/artist to 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;
2. Whereas the artist's resale right is       2. Whereas the artist's resale right is
intended to ensure that authors share in the  intended to ensure that authors of graphic
economic success of their works; whereas      and plastic works of art share in the
it helps to redress the balance between the   economic success of their original works of
economic situation of authors and that of     art; whereas it helps to redress the balance
other creators who benefit from successive    between the economic situation of authors
exploitations of their works;                 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 the need for
providing creators with an adequate and
standard level of protection;
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;
 ---pagebreak--- 5. Whereas the Berne Convention for
the Protection of Literary and Artistic
Works provides that the artist's resale right
is available only if legislation in the
country to which the author belongs so
permits; whereas the right is therefore
optional and subject to 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 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;
                                              5a. Whereas it would seem desirable to
                                              introduce obligatory resale 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.
 ---pagebreak--- 6.    Whereas the artist's resale right is         6. Whereas the artist's resale right is
currently provided for by the domestic             currently provided for by the domestic
legislation of a majority of Member States;        legislation of a majority of Member States;
whereas such laws, where they exist,               whereas such laws, where they exist,
display certain differences, notably as            display certain differences, notably as
regards the works covered, those entitled to       regards the works covered, those entitled to
receive royalties, the rate applied, the sales     receive royalties, the rate applied, the
subject to payment of a royalty, and the           transactions subject to payment of a
basis of assessment thereof; whereas the           royalty, and the basis on which these are
application or non-application of such a           calculated; whereas the application or
right has a significant impact on the              non-application of such a right has a
competitive environment within the                 significant impact on the competitive
internal market; whereas as with any other         environment within the internal market,
parafiscal charge it is an element which           since, as with parafiscal charges, the
must be taken into account by each                 existence or absence of an obligation to pay
individual wishing to sell a work of art;          on the basis of the artist's resale right is an
whereas this right is therefore a factor           element which must be taken into account
which contributes to the creation of               by each individual wishing to sell a work
distortions of competition as well as              of art; whereas this right is therefore a
displacements of sales within the                  factor which contributes to the creation of
Community;                                         distortions of competition as well as
                                                   displacements of sales within the
                                                   Community;
7. Whereas such disparities in the                 7. Whereas such disparities with regard
application of the artist's resale right by the    to the existence and application of the
Member States have a direct negative               artist's resale right by the Member States
impact on the proper functioning of the            have a direct negative impact on the proper
internal market in works of art as provided        functioning of the internal market in works
for by Article 7a of the Treaty; whereas in        of art as provided for by Article 7a of the
such a situation Article 100a of the EC            Treaty; whereas in such a situation Article
Treaty constitutes the appropriate legal           100a of the EC Treaty constitutes the
basis;                                             appropriate legal basis;
                                                10
 ---pagebreak--- 8. Whereas 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;
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;
9. Whereas             Council     Directive
               8
77/388/EEC, 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 sufficient to guarantee the
harmonious functioning of the art market;
whereas this objective cannot be attained
without harmonisation in the field of the
artist's resale right;
8
     OJL 145, 13.6.1977, p. 1.
9
     OJL 60, 3.3.1994, p. 16.
                                              11
 ---pagebreak---  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 the functioning of the internal
market;
 11. Whereas it is not necessary to
harmonise         every        provision     of
Member States' laws on the artist's resale
right; whereas it will be sufficient to limit
the harmonisation exercise to 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 this Directive is
therefore, in its entirety, consistent with the
requirements of the principles of
subsidiarity and proportionality;
12. Whereas, pursuant to Council
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;
whereas,      in     general,      works     of
contemporary or modern art occupy a
relatively modest place among sales by
public auction;
10
    OJL 290, 24.11.1993, p. 9.
                                                12
 ---pagebreak---   13. Whereas the scope of the artist's            13. Whereas the scope of the artist's
 resale right should be extended to any            resale right should be extended to any
 resale, with the exception of transactions        resale, with the exception of transactions
 between private individuals, of the work          between private individuals, of the work
 subsequent to the first sale by the author;       subsequent to the first sale by the
 whereas the artist's resale right therefore       rightholder; whereas the artist's resale right
 applies to transactions effected by all           therefore applies to transactions effected by
 professional sellers, such as salesrooms, art     or with the participation of an art market
 galleries and, in general, any dealer in          professional, all professional sellers, such
 works of art;                                     as salerooms, 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      harmonised;       whereas       original
art should be excluded;                           manuscripts and works of applied art
                                                  should be excluded;
16. Whereas the fixing of a Community
minimum threshold for the application of
the artist's resale right takes account of the
requirements of the internal market;
whereas, however, Member States should
be given the opportunity to fix national
thresholds which are lower than the
Community threshold so as to further the
interests of young artists;
                                               13
 ---pagebreak---   17. Whereas the non-application of the           17. Whereas the non-application of
 artist's resale right below the minimum           royalties below the minimum threshold
 threshold makes it possible to avoid              may help to avoid disproportionately high
 disproportionately high collection and           collection and administration costs
 administration costs;                             compared with the profit for the artist;
                                                   whereas, 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; whereas, given the
                                                  small amounts involved, this derogation is
                                                  not likely to have a significant effect on the
                                                  proper functioning of the internal market;
 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 the internal market in works of
contemporary or modern art requires the
fixing of uniform rates;
19. Whereas a system consisting of a              19. Whereas it is desirable to establish,
tapering scale of rates for several price        with the intention of reconciling the
bands may help to prevent the Community          various interests involved in the market for
rules on the artist's resale right from being    original works of art, a system consisting
circumvented; whereas the rates must             of a tapering scale of rates for several price
reflect the interests both of artistic circles   bands; whereas it is important to reduce the
and of the art market;                           risk of sales relocating and the
                                                  circumvention of the Community rules on
                                                 the artist's resale right;
 20. Whereas the person            liable for
 payment of the royalty is         the seller;
 whereas the latter is the         person or
 undertaking on whose behalf       the sale is
 concluded;
                                               14
 ---pagebreak--- 21. Whereas provision should be made            21. Whereas provision should be made
for the possibility of periodic adjustment of    for the possibility of periodic adjustment of
the threshold and rates; whereas, to this       the threshold and rates; whereas, to this
end, it is appropriate to entrust to the         end, it is appropriate to entrust to the
Commission the task of drawing up                Commission the task of drawing up
periodic reports on the practical effect of      periodic reports on the actual application of
the application of the artist's resale right     the artist's resale right in the Member
and, where appropriate, of making                States and on the impact on the European
proposals for amendment of the threshold         art market and, where appropriate, of
and rates;                                       making proposals relating to the
                                                 amendment of this Directive;
22. Whereas the persons entitled 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
relation to Member States' laws of
succession; whereas, however, those
entitled under the author must be able to
benefit fully from the resale right after his
death;
23. Whereas Member States should be             23. Whereas the Member States are
free to determine the procedures for            responsible for regulating the exercise of
collecting and managing the amounts paid        the artist's resale right, particularly with
over by virtue of the artist's resale right;    regard to the way this is managed; whereas
whereas in this respect management by a         in this respect management by the
collecting society is one possibility;          collecting society is one possibility;
whereas, however, Member States must            whereas, however, Member States must
ensure that amounts intended for authors        ensure that amounts intended for authors
who are nationals of other Member States        who are nationals of other Member States
are in fact collected and distributed;          are in fact collected and distributed;
                                             15
 ---pagebreak--- 24. Whereas enjoyment of the artist's
resale right must be restricted to
Community nationals and foreign authors
whose countries afford such protection to
authors      who      are    nationals      of
Member States;
25. Whereas appropriate procedures for
monitoring      transactions   should      be
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
 ---pagebreak--- COMMISSION'S INITIAL PROPOSAL                      PROPOSAL AMENDED FOLLOWING
                                                   THE OPINION OF PARLIAMENT OF
                                                   9 APRIL 1997
                 CHAPTER I                                          CHAPTER I
                     Scope                                               Scope
                    Article 1                                          Article 1
   Subject-matter of the artist's resale right        Subject-matter of the artist's resale right
Member States shall provide, for the               Member States shall provide, for the
benefit of the author of an original work of       benefit of the author of an original work of
art, an artist's resale right, to be defined as    art, an artist's resale right, to be defined as
an inalienable right to receive a percentage       an inalienable right, which cannot be given
of the sale price obtained from any resale         up, even in advance, to receive a royalty
of the work, with the exception of                 based on the sale price obtained for any
transactions effected by individuals acting        resale of the work, with the exception of
in their private capacity, subsequent to the      transactions effected by individuals acting
first transfer of the work by the author.          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          Works of art to which the artist's resale
                  right relates                                      right relates
For the purposes of this Directive, "original     For the purposes of this Directive, "original
work" means manuscripts and works of              work" means works of graphic or plastic
plastic art such as pictures, collages,           art such as pictures, collages, paintings,
paintings, drawings, engravings, prints,          drawings, engravings, prints, lithographs,
lithographs, sculptures, tapestries, ceramics     sculptures, tapestries, ceramics and
and photographs, provided they are made           photographs, provided they are made by
by the artist himself or are copies               the artist himself or are copies considered
considered to be original works of art            to be original works of art.
according to professional usage in the
Community.
                                               17
 ---pagebreak---                  CHAPTER II                                   CHAPTER II
             Particular provisions                         Particular provisions
                   Article 3                                     Article 3
                   Threshold                                     Threshold
 1. Royalties collected pursuant to 1. It shall be for the Member States to set
Article 1 shall be payable when the a minimum threshold above which the
sale price is equal to or higher than sales referred to in Article 1 shall be
ECU 1 000.                                     subject to resale right.
2. Member States may fix a national 2.                 This threshold may not under any
threshold which is lower than the threshold circumstances exceed ECU 1 000.
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 to
shall be set at the following rates:          Article 1 shall be set at the following rates:
(a) 4% of the sale price between (a) 4% for the sale price band between
ECU 1 000 and ECU 50 000;                      ECU 1 000 and ECU 50 000;
(b)     3% of the sale price between (b) 3% for the sale price band between
ECU 50 000 and ECU 250 000;                   ECU 50 000 and ECU 250 000;
(c)     2% of the sale price above (c) 2% for the sale price band exceeding
ECU 250 000.                                  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%.
                                              3. The royalty shall be payable by the
The royalty shall be payable by the seller.   se ller.
                                            18
 ---pagebreak---                    Article 5                                        Article 5
               Calculation basis                                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             2. Member States may provide for
collective management of sums paid over          collective management of sums paid over
by virtue of the artist's resale right. They     by virtue of the artist's resale right.
shall determine the arrangements for
collecting and distributing royalties where      Deleted.
the author is a national of another
Member State.                                    [Reinserted in recital 23]
                   Article 7                                        Article 7
  Third-country nationals entitled to receive      Third-country nationals entitled to receive
                    royalties                                        royalties
 Member States shall provide that authors        Member States shall lay down that authors
 who are nationals of third countries shall      who are nationals of third countries shall
 enjoy the artist's resale right in accordance   enjoy the artist's resale right in accordance
 with this Directive, provided that authors      with this Directive and their internal
 from the Member States enjoy reciprocal          legislation provided that authors from the
 treatment in the third countries concerned.      Member States enjoy reciprocal treatment
                                                  in practice in the third countries concerned.
                                               19
 ---pagebreak---                     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 laid down in Article 1 of right shall correspond to that laid down in
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
may require any dealer, sales director or          three years from the date of the transaction,
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
art.                                               royalties in respect of the sale during the
                                                   past year of original works of ait as
                                                   referred to in Article 2.
                                                 20
 ---pagebreak---                 CHAPTER III                                   CHAPTER III
               Final provisions                               Final provisions
                  Article 10                                     Article 10
               Revision clause                                Revision clause
The Commission shall present to the             The Commission shall present to the
European Parliament, the Council and the        European Parliament, the Council and the
Economic and Social Committee not later         Economic and Social Committee not later
than 1 January 2004 and every five years       than on 1 January 2004 and every five
thereafter a report on the implementation of   years thereafter a report on the
this Directive and shall, where appropriate,   implementation and the effect of this
put forward proposals for adjusting the        Directive, paying particular attention to its
minimum threshold and the rates of the         impact on the European market in modern
royalties to take account of changes in the    and contemporary art, especially as regards
sector.                                        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
                                               necessary in order to enhance the
                                               effectiveness of this Directive.
                                            21
 ---pagebreak---                   Article 11                                Article 11
               Implementation                            Implementation
 1. Member States shall bring into force the No change,
laws, regulations and administrative
provisions necessary to comply with this
Directive before 1 January 1999. They
shall inform the Commission thereof
immediately.
When      Member States       adopt    these
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                                Article 12
              Entry into force                           Entry into force
This Directive shall enter into force on the No change.
20th day following its publication in the
Official   Journal of the European
Communities.
                 Article 13                                Article 13
This Directive is addressed to the            No change.
Member States.
Done at                ,
For the European Parliament
The President
For the Council
The President
                                            22
 ---pagebreak---  ---pagebreak---                                                                    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
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