Resale Rights Directive

The most recent act in the European copyright legislation of the first decade (1991-2001 years) is the Resale Right Directive (as we do not count the Enforcement Directive in this legislation according to the common practice). Most of the member states had already regulated resale rights in their national legislations by the time of adoption of the Directive,343 _{but they were not harmonized on the community level and the existing}

disparities between the laws of the member states were affecting negatively on the common market. The Directive harmonizes the resale rights for the benefit of the author of an original work of art, but not every aspect of the resale right, since the harmonization is

339 _{Ohly, in: Derclaye, Research Handbook, p. 226 and 232.} 340 _{Janssens, in: Derclaye, Research Handbook, p. 327.} 341 _{Dusollier/Ker, in: Derclaye, Research Handbook, p. 371.} 342 _{Janssens, in: Derclaye, Research Handbook, p. 327.} 343 _{Walter, in: Walter, Europäisches Urheberrecht, p. 961.}

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limited to those aspects that directly affect the functioning of the internal market344_{. The}

resale right is also known as droit de suite – “the right of “following” the work”345_{. This right}

is an integral part of copyright and intends “to ensure that authors of graphic and plastic works of art share in the economic success of their original works of art.”346 _{Such right is}

mostly important for the works of visual artists since the value of their work can change considerably as their reputation grows.347_.

The Directive provides the definition of the resale right as an “inalienable right, which cannot be waived, even in advance, to retrieve a royalty based on the sale price obtained for any resale of the work, subsequent to the first transfer of the work by the author”348_{. The}

resale Right Directive generally follows the concept of the author’s participation in the sale price of every successive sale of the work’s original.349 _{There is a certain limit defined by the}

Directive, according to which the resale right does not apply if the seller has acquired the work directly from the author less than three years before that resale and where the resale price does not exceed EUR 10000.350 _{This particularly refers to the situation where art}

galleries acquire works directly from the authors who are mostly unknown and the purpose of this provision is “not to discourage such galleries from buying works of unknown artists”351_{. The definition of the resale right and the provision strengthening the positions of}

the unknown artists would be appropriate and useful for the legislations of the non-member states as well. However, while implementing the latter, they should convert the amount of EUR 10000 into the relevant amounts in their national currencies, or change the amount according to the actual standards existing in these countries.

344 _{Vanhees, in: Dreier/Hugenholtz Concise Copyright, p. 405.} 345 _{Tritton, p. 541.}

346 _{Vanhees, in: Dreier/Hugenholtz Concise Copyright, p. 406.} 347 _{Seville, p. 57.}

348 _{Art. 1.1, Directive 2001/84/EC.}

349 _{Walter, in: Walter/Lewinski, European Copyright Law, p. 849.} 350 _{Art. 1.2, Directive 2001/84/EC,}

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The Directive also provides the definition of the ‘original work of art’ as the “works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided that they are made by the artist himself or are copies considered to be original works of art”352_{. The}

enumeration made by this definition is not exhaustive and only exemplary, but generally only the works of art protected by copyright can be subject to the resale right.353 _{Article 2}

also considers the copies made in limited numbers by the artist himself or under his authority as the original works of art.354 _{The implementation of the definition provided}

above and the standard of covering the copies by it can be harmonized by the non-member states as well and they are also free to modify the definition according to the standards established in their legislations.

Article 3 gives the possibility to the member states to set a minimum sale price from which the sales should be subject to resale right355 _{and states that this minimum sale price “may not}

under any circumstances exceed EUR 3000”356_{. As we can see from the wording, imposition}

of this provision is facultative even for the member states. The Directive also sets the rate of the resale right and provides a system that divides the sale price of the original work of art subject to the resale right into different price bands to which a degressive rate scale is applied, the aim of which is to reconcile the different interests of all the parties that operate on the market of original works of arts, on one hand, and to reduce the risk of sales relocation and of the circumvention of the community rules on the resale right,357 _{on the}

other.358 _{Article 5 makes just a short notice that the sales price discussed above are net of tax.}

Article 6 lays down the basic rule, according to which the resale right royalty is payable to

352 _{Art. 2.1, Directive 2001/84/EC.}

353 _{Vanhees, in: Dreier/Hugenholtz, Concise Copyright, p. 413.} 354 _{Art. 2.2, Directive 2001/84/EC.}

355 _{Art. 3.1, Directive 2001/84/EC.} 356 _{Art. 3.2, Directive 2001/84/EC.}

357 _{Vanhees, in: Dreier/Hugenholtz. Concise Copyright, p. 415.} 358 _{Art. 24, Directive 2001/84/EC.}

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the author and after his death to those entitled under him (legal successors) and which corresponds with general principles of copyright and civil law.359 _{The member states are also}

free to provide for compulsory or optional collective management of the resale right.360

Article 7 mandatorily prescribes to apply material reciprocity vis-à-vis authors originating from third countries.361 _{Article 8 states that the term of protection of the resale right should}

correspond to the Term Directive and also sets certain dates which are applicable in terms of resale right. Article 9 grants to the persons entitled to receive royalties the right to obtain information.

Generally the Directive has harmonized an important aspects of the resale right on the community level and gave artist the droit de suite to a share in the proceeds of any subsequent sale of an original work362_{. The Directive has also played positive role in terms of}

balancing the positions of young and unknown artists, on one hand, and galleries or collectors, on the other. The Directive also includes the useful definitions and the provisions providing common standards. Therefore the introduction of these norms to the legislations of the non-member states would be recommended. The definitions and especially the provisions defining certain amounts in EUR should be modified according to the actual situations in these countries and in their national currencies.