Tuesday, June 27, 2006

EU Artists Resale Right (or "Droit de Suite") Directive

http://www.entemp.ie/press/2006/20060619a.htm :

Minister Michael Ahern Announces the Signing of Regulations Implementing the EU Artists Resale Right (or "Droit de Suite") Directive

Michael Ahern T.D., Minister for Trade and Commerce at the Department of Enterprise, Trade and Employment has announced the signing of Regulations transposing into Irish Law EU Directive 2001/84/EC on the resale rights of authors of original works of art. The Regulations, entitled the European Communities (Artists Resale Right) Regulations, S.I. No. 312 of 2006, came into effect on 13 June 2006.

The Regulations provide for a new right in Irish law entitling artists to payment where their art works are resold through the art trade. MinisterAhern said "The new Regulations mean that artists will share in the commercial success of their work and will be entitled to payments of up to €12,500 when individual works created by them are later resold."

"The intention had been to implement this EU Directive through an Act of theOireachtas. However, following consultation between my department and the Department of Arts, Sports and Tourism as well the Attorney General's Office, I have decided that, rather than wait for all of the more complex matters to be addressed in their entirety, a more immediate two-stage approach to this transpositon should be adopted.

"I am now taking those interim steps which are open to me in the present Regulations. The intention is to revisit some aspects, such as the exemption threshold value for eligible works and the duration of the right, in the proposed Bill. While the minimum art value threshold is being set at €3,000, for now, it is intended that this will be lowered in the primary legislation. The Directive raises some other optional issues and these can only be addressed in the proposed Bill also."

These Regulations under the European Communities Act 1972 on the mandatory provisions of the Directive will be followed, as soon as possible, with proposals on the optional and discretionary elements of the Directive being put before the Houses in the proposed Intellectual Property (Miscellaneous Provisions) Bill. The essential benefit of this is to allow for the immediate transposition of the Directive essentials."

Concluding, Minister Ahern said that he was pleased to see his Department working closely in this field with the Department of Arts Sport and Tourism. "It has been the long stated objective of Minister O'Donoghue to maximise the benefit of Artists Resale Right to Irish artists and their families."

Note for Editors
Background

Often also called "Droit de Suite", Artists Resale Right Schemes have operated in many European countries since the 1920's. After World War II the number of states providing artists droit de suite increased steadily. By the early 1990's, most EU member states had had operational schemes in place. There were, however, considerable differences in the way the right was operated in the various countries. A few countries, like Ireland, did not have schemes.
Following detailed discussions a unanimous compromise was agreed in late2 001. Transposition of the Directive was set for January 2006 for living artists. Member States were allowed a derogation for deceased artists delaying implementation until January 2010.

Across the EU, the effect of the Directive is intended therefore both to introduce the right where it does not exist and make all of the MemberStates implementations broadly similar.
The main issues which the new Regulations provide for include:-
* artists right to benefit from the resale of his/her work (Regulation 3),
* right being non-transferrable or saleable (Regulation 4),
* minimum art value threshold set, for now, at €3,000 (net of tax) (Regulation 5),
* benefit being confined, for now, to EU & EEA nationals (Regulation 6),
* establishment of a liability on the seller to pay the royalty (Regulation 7)
* artists right to information on sales (Regulation 8),
* royalty rates and bands for calculating amounts due (Regulation 9), and
* duration of resale right set, for now, at the artist's lifetime (Regulation 10)

As well as revisiting the arrangement in Regulations 5, 6 and 10, the upcoming Intellectual Property (Miscellaneous Provisions) Bill will also deal with a number of other aspects in the EU Directive including:-
* Joint liability for payment of the royalty (Article 1.3),
* reciprocation of resale rights with third countries (Article 7),
* period or 'term of protection'(Articles 6.1 and 8.2), and
* timing arrangements for any increased term of protection (Article 8.3),
The Regulations are available at
http://www.entemp.ie/science/ipr/copyrightsis.htm
The Directive is linked from
http://www.entemp.ie/science/ipr/eu-copyright.htm

For queries/further information on Artists Resale Right
John Rutledge,
Department of Enterprise, Trade and Employment
E-Mail john_rutledge@entemp.ie

3 comments:

Dominic Penny said...
This comment has been removed by the author.
Dominic Penny said...
This comment has been removed by the author.
Dominic Penny said...

Droit de Suite was first introduced in France in the 1920s as a social welfare measure to assist working artists. As every Member State of the European Union is entitled to its own social welfare arrangements, this Directive is invalid because it binds all Member States to the Social Welfare structures of another State. Moreover, as an art dealer I refuse to collect Droit de Suite levies because the Directive infringes a number of fundamental rights to which I am entitled as an Irish citizen, and which are enjoyed by traders in other goods throughout Ireland and the European Union.
The Directive also infringes European Union standards under which Member States trade with each other. For example, under the 7th VAT Directive, an important principle was established whereby traders accounting under the Margin Scheme are allowed to charge VAT on the profit margin only. The Directive on Droit de Suite is an infringement of this standard as the levy is charged on the gross sale price. This breach relates to the question of costs. In very many cases, it is the expense incurred by a dealer which raises the price of a painting above the threshold. These costs relate to framing; printing; marketing; receptions; general overheads, and are often higher than what was paid to the artist for the painting. However, there is no allowance for these costs in the threshold calculations. Effectively, this means that a dealer becomes liable to pay a royalty to an artist as a result of his own expenditure in promoting the artist and is obliged to pay a royalty calculated on the extent of his own outlay. If the dealer is forced to sell at a loss, the royalty is still payable. All of this is in conflict with the basic principles of common law. For this reason Milmo-Penny Fine Art Limited claims the right to sell free of Droit de Suite the work of any artist who has signed a Droit de Suite waiver. This can be in the form of an endorsement on the back of the painting or a simple waiver document.
As an artist, the introduction of Droit de Suite has severely infringed a number of rights, which I have enjoyed since birth as an Irish citizen. The fact that the resale rights are inalienable means that my fundamental rights to private property have been infringed; I am entitled only to limited copyright on works that I create; my rights to form a contract under my own terms and conditions are fundamentally restricted; and my testamentary rights have been severely curtailed.
Bunreacht na h√Čireann, the Constitution of Ireland, enacted by the people of Ireland on the 1st July, 1937 states:
ARTICLE 43. 1. 1° The State acknowledges that man, in virtue of his rational being, has the natural right, antecedent to positive law, to the private ownership of external goods.
ARTICLE 43. 1. 2° The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.
Furthermore, Article 17 of the Charter of Fundamental Rights of the European Union states: Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions.
Droit de Suite is a gross infringement of these rights. Prior to the introduction of Droit de Suite, I enjoyed full control over the copyright of my own paintings and paintings which I had bought. The Directive on Droit de Suite interferes with this right as it gives an outside agency the right to collect levies on my paintings whenever they are sold. As the rights under the Directive are inalienable, this means that I am denied the right to opt out of the scheme. The Irish Government mistakenly believes that the Directive can be side-stepped by allowing artists the option of joining a collection agency or not. Brian McCabe, Intellectual Property Unit of the Department of the Enterprise, Trade and Employment states: “If an author chooses not to pursue that right, then that is a matter for the author.” That of course is as it should be. However, he is overlooking one of the terms of the Directive which states that the rights are inalienable. This means that authors are not allowed to decide whether or not they wish to be paid a royalty. They are denied choice and the right to decide on a fixed and final price for their work. This is entirely unacceptable in a free democracy.
Every Member State of the European Union is entitled to their own law of contract. However, the rights that I have enjoyed under Irish law prior to the introduction of Droit de Suite have been infringed by Droit de Suite. The Directive does not allow me to form a contract for the sale of a painting which includes free and unhindered copyright. My Testamentary rights have also been infringed. Prior to the introduction of Droit de Suite, I had the right to bequeath my paintings to my heirs or to others free of any encumbrance.
To guard against this, I retain full copyright to my paintings because this prevents any agency from collecting royalties or levies on their sale without my permission. l make a simple claim to copyright on my invoices, and also on the back of my paintings. I also include a Droit de Suite waiver on the invoice which states: "All rights under Droit de Suite have been waived by the creator of this painting". This does not prevent me from including the reproduction rights of the painting if I wish to do so. I use the same procedure if I am donating a painting free of charge to an institution, a charity, or a private individual. I have also put my local collection agency on notice that they do not have the right to collect royalties or levies on my behalf.
This obnoxious Directive was forced on the European Union because of lobbying by a group of extremely wealthy French families who are heirs to the fortunes of artists long dead and gone. These families were unable to collect royalties from paintings sold in London and elsewhere. Because paintings offered for sale in France were subject to the levy, many vendors opted to sell overseas. This led to a drain on the French auction houses who also lobbied for the implementation of Droit de Suite.
A number of greedy Irish artists were only too delighted to promote its introduction here. Their claim was that they did not have the opportunity to collect royalties in the same way as an author could every time his book was reprinted. I fail to see the connection between writing a book and painting a canvas. In any event, the claim is bogus as there is nothing preventing any artist from making printed reproductions of their works and selling these on an ongoing basis or claiming royalties if a publisher reprints their reproductions.
I call on all artists throughout the European Union to join with me and offer their works for sale free of Droite de Suite. I see no reason why your local gallery or your local auctioneer should not sell your works free of Droit de Suite if you sign a waiver. However, if you are unsure about your position, you should seek local professional advice. If an artist wants to attach resale conditions or any other conditions to the sale or resale of their paintings, they have the right to do so. However, State imposition of inalienable rights is intolerable in a modern democracy.