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DIRECTIVE 2001/84/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 September2001 on the resale right for the benefit of the author of an original work of art
THE EU R O P E AN AR LIAM E N T P AND THE C O U N C IL O F TH E EUROPEAN UNION,
Council Common Position of 19 J u n e 2000 (O J C 300, 20.10.2000, p. 1) and Decision of the EuropeanParliam entof 13 Decem ber2000 (O J

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof, Having regard to the proposal from the Commission 1), ( Having regard to the opinion of the Econom ic and S ocial Committee(2), Acting in accordance with the procedurelaid down in Article 251 of the Treaty(3), and in the light of the joint text approvedby the Conciliation Committee on 6 J u n e 2001, Whereas:
(1)

In the field of copyright, the res aleright is an unassignable and inalienable right, enjoyed by the author of an original work of graphic or plastic art, to an econom ic interest in s u c c e s s iv e s a le s of the work concerned. The re s ale right is a right of a productive character which en ables the author/artist to receive consideration su ccessive nsfe rs of the work. The for tra subject-m atterof the res ale right is the physical work, namely the medium in which the protected work is incorporated. The re sa le right is intended to e nsure that authors of graphic and plastic works of art share in the econom ic s u c c e s sof their original works of art. It helps to red ressthe 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. T he re sale right forms an integral part of copyright and is an essential prerogative for authors. The im position of such a right in all M em be r S ta te sm e ets the need for providing creators with an ad equa teand standardlevelof protection. Under Article 151(4) of the Treaty the Community is to take cultural a sp ec ts into account in its action under other provisions of the Treaty. T he Berne Convention for the Protection of Literary and Artistic Works provides that the res ale right is availableonly if legislation in the country to which the author belongs so perm its. The right is therefore optional and subject to the rule of reciprocity. It follows from the ca se -la w of the Court of J us tic e of the European

(2)

(3)

(4)

(5)

(6)

(1) OJ C 178, 21.6.1996, p. 16 and O J C 125, 23.4.1998, p. 8. (2) OJ C 75, 10.3.1997, p. 17. (3) Opinion of the European Parliam entof 9 April 1997 (O J C 132, 28.4.1997, p. 88), confirmed on 27 October 1999,

L 272/ EN Official Journalof the European Communities 13.10.2001 Communitieson the applicationof the principle of nonforce and the substantive regulation of the right, discriminationlaid down in Article 12 of the T rea ty,as which will preserve the com petitiveness of the shown in the judgment of 20 October 1993 in Jo in ed Europeanm arket. C ases C-92/92 and C-326/92 Phil Collins and Others (4), that dom estic provisions containing reciprocity clauses cannot be relied upon in order to deny nationals of (9) The re sa le right is currently provided for by the other Member S ta te s rights conferred on national dom estic legislation of a majority of Member S ta te s. authors. The application of such clau se s in the S uch laws, where they exist, display certain differences, Community context runs counter to the principle of notably a s re g a rd sthe works covered,those entitled to equal treatm ent resulting from the prohibition of any receive royalties, the rate applied, the transactions discrimination on grounds of nationality. subjectto paym entof a royalty, and the ba sison which these are calculated.The application or non-application of su ch aright has a significant im pact on the competi(7) The processof internationalisationof the Community tive environment within the internal m arket, since the market in m odern and contem poraryart, which is now existen ce ab se n c e an obligation to pay on the basis or of being speeded by the effe ctsof the new econom y,in up of the re sa le right is an elem ent which must be taken a regulatory context in which few S ta teso utside the E U into accountby each individual wishing to s e ll a work of recognise the re sa le right, m akes it esse ntia lfor the art. This right is the reforea factor which contributesto EuropeanComm unity, in the external sphere,to open the creation of distortions of competition a s well a s negotiations with a view to making Article 14b of displacem entof s a le s within the Community. the Berne Convention compulsory.
(10) (8)

C 232, 17.8.2001, p. 173). Decision of the European Parliament of 3 July 2001 and Decision of the Council of 19 July 2001.

The fact that this international market exists, combined with the lack of a re s aleright in severalM e m b erS tate s and the current disparity a s re g a rd s national system s which recognise that right, m ake it e ssen tialto lay down transitional provisions regardsboth entry into as

S uch disparitieswith regardto the existence the resale of right and its application by the M e m be r S ta tesha ve a direct negativeim pact on the proper functioning of the internal market in works of art a s provided for by Article 14 of the Treaty.In such a situationArticle 95 of the Treaty constitutes the appropriate legal b as is .

(4) [1993] ECRI-5145.

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The objectives the Communitya s s e t out in the Treaty of include laying the foundations of an ever closer union among the peoples of Europe, promoting closer rela- tions between the Member S ta te s belonging to the Community, and ensuring their econom ic and socialprogress by common action to eliminate the barriers which divide Europe. To that end the Treaty provides for the establishm entof an internal market which presup-poses the abolition of o bsta clesto the free m ovem entof goods, freedom to provide services and freedom of establishment,and for the introduction of a system ensuring that competition in the common market is not distorted. Harm onisation of M em ber States'laws on the re s a le right contributes to the attainm ent of these objectives.

right and, in order to le a v e a s much scop e for national dec is ionas poss ible,it is sufficientto limit the harmonisation e xerc is eto those dom estic provisions that ha ve the m ost direct im pact on the functioningof the internal market.

(16)

This Directive com pliestherefore,in its entirety,with the principles of subsidiarity and proportionality a s laid down in Article 5 of the Treaty.

(17)

(12)

The Sixth Council Directive (77/388/EEC)of 17 1977 on the harmonisation of the laws of the M em berStatesrelating to turnover taxes common system of value addedtax: uniform b a sisof a sse ssm e nt (1), progres-sively introduces a Community system of taxation applicable inter alia to works of art. M e asures confined to the tax field are not sufficient to guarantee the harmoniousfunctioning of the art m arket. This objective cannot be attained without harmonisationin the field of the re sa le right.

May

P ursuantto Council Directive 93/98/EECof 29 October 1993 harmonising the term of protection of copyright and certain relatedrights (2), the term of copyright runs for 70 yea rs after the author's death. The sam e period should be laid down for the res aleright. Consequently, only the originals of works of modern and contemporary art may fall within the scop e of the res ale right. However,in order to allow the le ga l syste m sof M em ber S ta te s which do not, at the time of the adoption of this D irective, a pply a re sale right for the benefit of artists to incorporatethis right into their respe ctive le gal system s and, m oreover, to enable the econom ic operators in tho se M e m b er S ta te sto adapt graduallyto the aforem en- tioned right whilst maintaining their econom ic viability, the Member S tates conc erned should be allowed a limited transitional period during which they may choose not to apply the res a le right for the benefit of those entitled under the artist after his death.

(13)

Existing differencesbetween laws should be eliminated where they have a distorting effecton the functioning of the internal market, and the em erge nce of any new differences that kind should be prevented. of There is no need to elim inate, or prevent the em e rgen ce of, differ- en ce s w h ich canno t be expecte dto affect the functioning of the internal market.

(18)

(14)

A precondition of the proper functioning of the internal market is the e xisten ce of conditions of competition which a re not distorted. The existe nce of differencesbetween national provisions on the re s ale right crea tesdistortions of competition and displacem ent of s a le s within the Community and le ad s to unequal treatmentbetween artists depending on where their works a re sold. The issue under consideration has therefore trans- national aspects which cannot be satisfactorily regulatedby action by Member S ta te s. A lack of Communityaction would conflict with the requirem entof the Treaty to correct distortions of com petition and unequaltreat- ment.

T he scope of the re s aleright should be extendedto all acts of res ale , with the exception of those effected directly betweenpersonsacting in their private capacity without the participation of an art m arket professional. This right should not extend to a cts of re sa leby persons acting in their private capacity to m useum swhich are not for profit and which a re open to the public. With regard to the particular situation of art gallerieswhich acquire works directly from the author, M em ber S tates should be allowed the option of exem pting from the res a le right a cts of re sa le of those works which take place within three yearsof that acquisition.T he interests of the artist should also be taken into account by limiting this exem ptionto such acts of resalew here the res a le price does not exceedEU R 10000.

(19)

It should be m ade clear that the harmonisationbrought about by this Directive does not apply to original manu- scripts of writers and composers.

(20) (15)

In view of the sc a le of divergencesbetween national provisionsit is th ereforenece ssary adopt harmonising to m e asuresto deal with disparitiesbetween the laws of the M e m b er S ta tesin a re asw he re such disp aritie s a re liable to create or maintain distorted conditions of competition. It is not however necessary harm oniseevery provision of the M em ber to S tates' laws on the re sa le

E ffectiverules should be laid down b as edon experience alreadygainedat national level with the resaleright. It is appropriate to calculatethe royalty a s a p e rc e n ta g eof the sale price and not of the in creasein value of works whose original value h as increased.

(21)

T he categories works of art subjectto the re sa leright of should be harmonised.

(1) OJ L 145, 13.6.1977, p. 1. Directive a s last am ended by Directive 1999/85/EC (O J L 277, 28.10.1999, p. 34).

(2) OJ L 290, 24.11.1993, p. 9.

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The non-application of royalties below the minimum threshold may help to avoid disproportionately high collection and adm inistration costs com pared with the profit for the artist. However, in accordance with the principle of subsidiarity, the M e m b er S ta tes should be allowed to establish national thresholds lower than the Com m unity threshold, so as to promote the interestsof new artists. Given the small amounts involved, this derogationis not likely to ha ve a sign ifican t e ffe ct on the proper functioning of the internal market.

(23)

The ra te s s et by the different M em be r S ta tes for the application of the re sa le right vary considerably at present. Theeffective functioning of the internal market in works of modern and contemporaryart requires the fixing of uniform rates to the widest possible extent.

(24)

It is desirable to establish, with the intention of recon- ciling the various interests involved in the market for original works of art, a sys te m consisting of a tapering sc a le of rate s for severalprice bands. It is important to reduce the risk of sales relocating and of the circumven-tion of the Community rules on the re s ale right.

(25)

The person by whom the royalty is payable should, in principle, be the seller. M em ber States should be given the option to provide for derogationsfrom this principle in respect of liability for paym ent. The seller is the person or undertaking on whose behalf the s a le is concluded.

(26)

Provisionshould be m ade for the possibility of periodic adjustm entof the threshold and rates. To this end, it is appropriate to entrust to the Commission the task of drawing up periodic reports on the actual application of the re sa le right in the M em ber S tatesand on the impact on the art market in the Com m unity and, where appro- priate, of m aking proposals relating to the am endm ent this Directive. of

(27)

T he personsentitled to receiveroyalties must be specified, due regard being had to the principle of subsidiarity. It is not appropriate to take action through this Directive in relation to M em ber S tates'laws of s uc ce ssion. However,those entitled under the author must be ab le to benefit fully from the res aleright after his death, at least following the expiry of the transitional period referred to above.

(28)

The M e m b er S ta tes are re sp on siblefor regulating the exerciseof the res a le right, particularly with regard to the way this is m anaged.In this respectm anagem ent by a collecting society is one possibility. M e m ber S ta te sshould ensurethat collecting societiesoperate in a trans- parent and efficient m anner. M em ber States must also ensure that amounts intended for authors who a re nationals of other M em ber S tates

13.10.2001 EN Official Journalof the European Communities and distributed. This Directive is without prejudice to arrangem ents in Member S ta te s for collection and distribution.
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Enjoym ent of the re s ale right should be restricted to Community nationals a s well a s to foreign authors whose countries afford such protection to authors who are nationals of M em be rS ta te s. Mem berState should A have the option of extendingenjoym entof this right to foreign authorswho ha vetheir habitualresidence that in M em ber S tate. Appropriate procedures for monitoring transactions should be introduced so as to ensu reby practicalm eans that the res a le right is effectively applied by M em ber S ta te s. T h is im plie s also a right on the part of the author or his authorised representative obtain any to n ece ssa ry information from the natural or legal person liable for paym ent of royalties. M em ber S tateswhich provide for collective m anagement of the res ale right may also provide that the bodies responsible for that collectivem anagem ent should alone be entitled to obtain informa- tion,

Article 1 Subject matter of the resale right 1. M em berStatesshall provide, for the benefit of the author of an original work of art, a re s ale right, to b e d e fine d as an inalienableright, which cannot be waived,even in a dva nce, to receivea ro yalty ba se don the sale price obtainedfor an y resale of the work, subsequent the first transferof the work by the to author. 2. The right referredto in paragraph1 shall apply to all acts of re s ale involving a s s e lle rs , buyers or interm ediaries art m arke t professionals, ch a s salesroo m s, galleriesand, in su art general,any dealersin works of art. 3. M em ber S tatesmay provide that the right referredto in paragraph1 shall not apply to acts of resalew he re the seller h as acquire d the work directly from the author less than three years before that re sa le and where the re sa le price d oes not exceedEU R 10000. 4. The royalty shall be payableby the selle r.M em b erS tate s may provide that one of the natural or legal personsreferredto in paragraph2 other than the seller shall alone be liable or shall share liability with the seller for paym ent of the royalty.

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HAVE ADOPTEDTHIS D IR E C TIV E :

CHAPTERI

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Works of art to which the resale right relates 1. For the purposes of this Directive, original work of art m eans works of graphic or plastic art such as p ictures, collages,paintings, draw ings, engravings,prints, lithographs, sculptures, tapestries, ceram ics, glassware and photographs, provided they a re m a de by the artist him self or are copies consideredto be original works of art. 2. C opies of works of art covered by this Directive, which h ave b een m a de in limited num bers by the artist himself or under his authority, shall be consideredto be original works of art for the purposesof this Directive.Such copies will normally have been num bered, signed or otherwiseduly authorisedby the artist.
C H AP TE R II PARTICULAR PROVISIONS

The sa le prices referredto in Articles 3 and 4 a re net of tax. Article 6 P erso nsentitled to receive royalties 1. The royalty provided for under Article 1 shall be payable to the author of the work and, subject to Article 8(2), after his death to those entitled under him/her. 2. M em b er S ta te smay provide for compulsoryor optional collective managem ent of the royalty provided for under Article 1. Article 7 Third-country nationalsentitled to receive royalties 1. Member S ta te s shall provide that authors who are nationals of third countries and, subject to Article 8(2), their s uc ce ss o rs title shall enjoy the re sa le right in accordance in with this Directive and the legislation of the M em ber State concerned only if legislationin the countryof which the author or his/her successor title is a national perm its resaleright in protection in that country for authors from the M em berS ta te s and their s uc c e ss ors title. in 2. On the b a sis of information provided by the Mem ber S ta te s ,the Commissionshall publish a s soon as po ss ib le an indicativelist of those third countrieswhich fulfil the condition s e t out in paragraph1. This list shall be kept up to date. 3. Any Member S ta te may treat authors who are not nationals of a M e m be r S tate but who h ave their habitual resid ence in that Member S tate in the sam e way a s its own nationals for the purpose of res ale right protection. Article 8 Term of protection of the resale right 1. The term of protection of the re sa le right shall correspond to that laid down in Article 1 of Directive 93/98/EEC. 2. By way of derogationfrom paragraph1, those Mem ber S ta te swhich do not apply the res a leright on (the entry into force date referredto in Article 13), shall not be required,for a period expiring not later than 1 Janua ry2010, to apply the res ale right for the benefit of those entitled under the artist after his/her death. 3. A M em berState to which paragraph2 applies may ha ve up to two more ye a rs, if n e ce ssaryto enable the econom ic operatorsin that M em berStateto adapt graduallyto the re sa le right systemwhile maintaining their econom icviability, before it is required to apply the res aleright for the benefit of those entitled under the artist after his/her death.At least12 months before the end of the period referred to in paragraph2, the M em ber S tate concernedshall inform the Commissiongiving its reas ons,so that the Com m ission can give an opinion, after appropriate consultations, within three months following the receipt of such information. If the M em be r S ta te doe s not follow the opinion of the Comm ission, it shall within one month inform the Commission and justify its decision. The notification and justification of the Member S ta te and the opinion of the Commissionshall be published in the Official J o u rn a lo f th e E u ro p e a n o m m u n itie s C and forwarded to the Euro- pean Parliament.

Article 3 Threshold 1. It shall be for the M e m b erS ta testo s e t a minimum s a le price from which the sa les refe rre d to in Article 1 shall be subject to re sa le right. 2. This minimum sa le price may not under any circum- s tanc esexceedE U R 3000. Article 4 Rates 1. The royalty provided for in Article 1 shall be set at the following rates: (a ) 4 % for the portion of the s a le price up to EU R50000; (b) 3 % for the portion of the sa le price from EUR 50000,01 to EUR200000; (c) 1 % for the portion of the sale price from EUR200000,01 to EUR350000; (d) 0,5 % for the portion of the s a le price from EUR350000,01 to EUR500000; (e) 0 ,25 % for the portion of the s a le price exceeding EUR500000. However, the total amount of the royalty may not e xcee d EUR 12500. 2. By way of derogation from paragraph 1, M e m ber S ta te smay apply a rate of 5 % for the portion of the s a le price referred to in paragraph 1(a). 3. If the minimum s a le price se t should be lower than EU R3000, the M em ber S tate shall also determ ine the rate applicableto the portion of the s a le price up to EU R3 000; this rate may not be lower than 4 %.

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4. In the event of the successfulconclusion, within the periods referred to in Article 8(2) and (3), of internationalnegotiationsaim ed at extending the resale right at international level, the Commission shall submit appropriate proposals. Article 9 Right to obtain information The M e m b er S ta te sshall provide that for a period of three years after the res ale , the persons entitled under Article 6 may require from any art m arket professionalm entioned in Article 1(2) to furnish any information that m ay be necessaryin order to secure paym ent of royalties in respect of the res ale .
CHAPTER III FINAL PROVISIONS

2. A Contact Com m ittee is hereby established. shall be It com posedof representatives the com petent authorities of of the M em b erS ta te s. shall be chairedby a rep re se n tative the It of Commission and shall meet either on the initiative of the Chairm an or at the request of the delegation of a Mem ber S tate . 3. The task of the Committee shall b e a s follows: to organise consultations on all questions deriving from application of this Directive, to facilitate the exchange of information between the Commission and the M em be r S tateson relevant developments in the art market in the Community. Article 12 Implementation 1. M em berStatesshall bring into force the laws, regulations and adm inistrative provisions necessary comply with this to Directive before 1 Ja nuary2006. T hey shall forthwith inform the Commission thereof. W hen M em berStatesadopt thesem easures, they shall contain a re fe re nc eto this Directive or shall be accom paniedby such reference on the occasion of their official publication. The m ethodsof m aking such a reference shall be laid down by the M em ber S ta tes. 2. M e m b erS ta te sshall com m unicateto the Comm issionthe provisions of national law which they adopt in the field covered by this Directive. Article 13 Entry into force This Directive shall enter into force on the day of its publication in the Official J o u rn a lo f th e E u ro p e a n om m u n ities C . Article 14 Ad dressees This Directive is ad d resse d the M e m b er S ta te s. to Done at B ru sse ls,27 S eptem ber2001.

Article 10 Application in time This Directive shall apply in respectof all original works of art a s d e fine din Article 2 which, on 1 Janua ry 2006, a re still protected by the legislation of the M em be r S ta tesin the field of copyright or m eet the criteria for protection under the provi- sions of this Directive at that date. Article 11 R evisio n clau se 1. The Commission shall submit to the European Parliam ent, the Council and the Econom icand SocialCom m itteenot later than 1 Ja nu ary2009 and every four ye ars th e reaftera report on the implementation and the effect of this Directive, paying particular attention to the com petitiveness of the market in modern and contemporaryart in the Community,e sp ec ia lly re ga rd sthe as position of the Community in relation to relevant markets that do not apply the re sa leright and the fostering of artistic creativity and the m anagem entproceduresin the M e m b er S ta te s.It shall exam inein particular its impact on the internal m arket and the effect of the introduction of the re s aleright in those M em ber S tatesthat did not apply the right in national law prior to the entry into force of this Directive. W here appropriate, the Com m ission shall subm it proposals for adapting the minimum threshold and the rates of royalty to take account of chang esin the sector, proposals relating to the maximum amount laid down in Article 4(1) and any other proposal it m ay deem necessaryin order to enhance the effec-tivene ssof this Directive.

F o r th e E u rop e a n arlia m e n t P T h e P re s id e n t
N. FONTAINE

F or th e C o un c il T h e P re s id e n t. C
P IC Q U