Resale right for the benefit of the author of an original work of art

KEY POINTS

Works of art to which the resale right relates

Provided that works of art are made by the artist or that they are copies made in limited numbers which are considered to be original works of art according to professional usage (limited productions or signed works, for example), the resale right applies to works such as:

• pictures;
• collages;
• paintings;
• drawings;
• engravings;
• prints;
• lithographs;
• sculptures;
• tapestries;
• ceramics;
• glassware; and
• photographs.

The resale right does not apply to original manuscripts of writers or composers.

Subject matter of the resale right

• The resale right is normally payable by the seller. Nevertheless, EU countries may pass laws that allow a professional other than the seller to be the sole person responsible for paying the resale right or to share this responsibility with the seller.
• EU countries may also determine that the resale right does not apply:
  • where the seller has acquired the work directly from the author less than 3 years before the resale; and
  • where the resale price does not exceed €10,000.

Term of protection of the resale right

The term of protection is laid down by Directive 2006/116/EC which harmonises the term of protection of copyright and certain related rights and lasts for a period of 70 years after the death of the author.

Calculation of the resale right

• EU countries are obliged to set a minimum sale price for sales subject to the resale right. This minimum sale price may not exceed €3,000.
• Artists receive royalties calculated as a percentage of the sale price of their works. The sale price is divided into five portions, and the rate of the royalty ranges from 4% to 0.25%, depending on the portion.
• However, the total amount of the royalty may not exceed €12,500.

Beneficiaries

• The resale right benefits the author of the work and, after his or her death, those entitled under him or her.
• Authors who are nationals of non-EU countries may benefit from the resale right if the legislation in their country permits resale right protection in that country for authors from EU countries.
• However, EU countries may decide to apply this directive to authors who are nationals of non-EU countries but whose habitual residence is in the EU country concerned.

Right to obtain information

For a period of 3 years after the resale, the persons entitled to receive royalties have the right to demand of any art market professional any information that may be necessary to secure payment of royalties from the resale.

Report on implementation of the directive and key principles and recommendations

In 2011, the European Commission adopted a report on the directive’s implementation. This proposed establishing a stakeholder dialogue (including rights collection management organisations, authors and art market professionals such as art dealers, galleries, auctioneers) tasked to recommend how to improve the system of resale right collection and distribution in the EU. In 2014, the representatives of these organisations signed up to ‘Key Principles and Recommendations on the management of the Author Resale Right’.