The artist’s resale right – an overview

Analysis 

Although the resale right of the author of a work of art has existed in Belgium since 1921, it was only harmonized in 2001 by a Directive. This Directive obliged each Member State to implement a scheme for the exercise of that resale right.

The twentieth anniversary of this Directive is therefore the ideal moment to provide an overview of its current implementation. This is all the more in view of the changes that were made to this in 2015 as a result of the inclusion of the copyright law in the Economic Law Code.

1. What is meant by “the resale right”?

The regulation on the resale right had already been legislated in 1921 and was reinstated in 1994 in the Copyright Act. Today we find this legal figure in the Economic Law Code (hereinafter WER).

The resale right is defined as the right for an author to receive compensation based on the resale price for any resale of his original artwork involving professional art dealers.

The resale right can only apply to an “original work of art” , a work of graphic or visual art, provided that it is a creation of the artist or the artist considers it an original work of art. Copies may also be included, but these must be made in limited edition by the artist himself or on his behalf.

The resale right is important to artists because it gives them an opportunity to enjoy the value of the work they have created, even after they have sold it themselves. In this way, they can continue to enjoy the added value that is created as their career takes off, their name and fame become better known, and their works increase in value.

2. What are the characteristics of the resale right?

The resale right is undoubtedly an outsider within copyright.

What is special is that the law expressly provides that this right is inalienable on the part of the author and that this inalienability is of public order. Any agreement to transfer the resale right will therefore be declared null and void.

This was provided to prevent the author from being pressured into selling his resale right along with his work. Likewise, authors cannot possibly commit themselves never to claim the resale right and to waive it, as it were.

In addition, the resale right only relates to the material carrier in which the original work of art is contained. The resale right can only arise in the event of a resale of this medium. It is considered that this is a right to compensation and is in no way an exclusive right.

The resale right applies until 70 years after the death of the author, just like for the other property rights that belong to an author.

Likewise, no formality has to be fulfilled in order to obtain the resale right.

3. The older schemes were refined

Despite the harmonization in 2001 on a number of important aspects, which could mainly have a negative impact on the common market, each Member State remains competent to determine for itself how authors can effectively exercise and recover their resale rights.

Where Belgian law originally advocated voluntary collective management, this was changed to a system of mandatory collective management by means of a designated ‘unique platform’ when copyright was incorporated into the WER.

After all, the voluntary affiliation with a collective management company led to a difficult search for art actors to find out to whom the resale rights had to be paid, with the result that all too often no resale rights were paid in the end. Controlling the collection of the resale right was also very difficult.  

In addition to further limited changes, following the inclusion of these regulations in the WER, the limitation period for claiming the resale right was extended to 5 years, running from the sale.

4. The Belgian resale right: what, how and how much?

4.1 When does the resale right apply?

When a work of art is resold and actors from the professional art trade are involved, as well as seller, buyer and intermediary, the resale right is owed to the author.

For works of art sold up to EUR 10,000, no resale right is due if the seller has purchased the work from the author himself less than three years prior to the resale. This is interesting for art galleries that promote young artists and make the necessary investments for this (exhibitions, books and catalogues).

Since only resale where a professional actor intervenes is targeted by the legislation, the resale right does not apply if a work of art:

• is directly resold between private persons without any intervention of a professional actor;
• resold to a non-profit museum that is open to the public.

4.2 How much is the resale right?

An important threshold governing the resale right provides that a resale right is only due for sales above EUR 2,000. The Belgian legislator thus remained below the maximum threshold of EUR 3,000 provided for by the Resale Right Directive.

If a sale takes place that meets the conditions, the resale right must be calculated in accordance with the following degressive rates:

4.3 Who is entitled to the resale right?

The resale right is an inalienable right with regard to the author of the original work.

Belgian law expressly provides that the resale right also belongs to the heirs and other successors in title of the authors. After all, the author transfers his copyright property rights to his heirs and legatees, unless he has designated a specific person for this purpose. Certain Member States limit these legal successors to legal heirs, which has been accepted by the Court of Justice.

All EU nationals are also entitled, on the basis of European case law, to claim the resale right that has arisen in respect of their works in another EU Member State. The principle of reciprocity of the scheme applies to non-EU nationals. These nationals can only invoke this in Belgium if the third country also provides protection for the resale right.

4.4 Who bears the resale right?

The WER expressly provides for the obligation of the seller to pay the resale right with regard to the author. Nevertheless, the parties to a sale are always free to contractually determine who should ultimately bear the resale right. 

The Belgian legislator provides for a clear regulation regarding the obligation of the parties involved in a sale to pay the resale right.

In the event of a sale in the context of a public auction, both the seller and the professional actor who intervenes are jointly and severally obliged to inform the unique platform of this no later than one month after the sale. After this notification, they must pay the resale right within two months via the unique platform.

When a work of art is resold without a public auction, the professional actors, jointly and severally with the seller, are jointly and severally liable to make the announcement to the unique platform and then also to pay the resale right due within two months. In this context, professional actors are obliged to inform the unique platform every three months of the sales on the basis of which the resale right owed has arisen.

In addition to the buyer, the intervening professional actors are therefore equally jointly and severally liable to pay the resale rights.

5. How is the resale right collected?

5.1 A unique collection platform

As mentioned earlier, the collection system of the resale right was changed in 2015 to a collective management system.

To this end, a unique platform has been designated to be responsible for exercising the resale right. This platform had to be set up by the management companies responsible for managing the resale right, namely Sabam and SOFAM.

This platform is organized via the website www.resaleright.be .

As a result, the sellers no longer have to search directly for the copyright holder themselves. And conversely, rightholders of the resale right no longer have the option themselves to collect the resale rights owed from the sellers.

The unique platform of Sabam and SOFAM was placed in between, which collects the resale rights owed and subsequently pays them out to the authors.

The author is free to contact the unique platform directly if he does not wish to join one of the management companies. Foreign individual rightholders must contact the unique platform ( www.resaleright.be ) directly.

The authors and rightholders have a period of 5 years, counting from the resale, to assert their rights with regard to the unique platform and to obtain the collected resale rights.  

Thanks to the transparency obligation imposed on the unique platform, all this has become much easier. Indeed, the platform is obliged to keep a publicly accessible list of the various sales of which it is notified.

It is therefore easy for authors and rightholders to check via the website to what extent their works of art have been resold in Belgium.

5.2 Right to information

The legislator has also developed an amended right of information. This makes further control possible for the seller and the professional actors on the correct declaration of the sales and the payment of the resale rights.

The individual author or rightholders also have a right to information with regard to the unique platform. They have the right to request all relevant information for the recovery of their resale right.

If a request for information is not respected, this can lead to criminal restraint. This clearly shows the importance attached to sufficient transparency regarding the collection and payment of the resale right.

Various costs are attached to the payment of the collected resale rights by the unique platform, both for non-members and members of management companies.

6. Decision

The resale right has undoubtedly undergone a complete evolution, which has further strengthened its practical effect and the possibility of collection.

By obliging the collective management system and placing one unique platform ( www.resaleright.be ) between authors on the one hand and sellers and professional art actors on the other, a simpler and more efficient system was created.

In the first place, the unique platform is responsible for the collection of the resale rights from the sellers and also has the necessary authority and resources for this. In this way, the resale rights are collected more consistently and therefore more often reach the rightholders. This also increases clarity for professional art actors.

And furthermore, the authors and the sellers/professional art actors are no longer doomed (often in vain) to look for each other in order to pay or collect the resale right. The authors (whether or not through their membership of a management company) have a single clear direct contact point that ensures that the resale rights are collected and, upon request, are also transferred.

Finally, the public list of works sold on the website www.resaleright.be ensures that foreign authors and artists can also check in a very simple way to what extent the resale of their works in Belgium has given rise to the resale right.

We can therefore fully conclude that the resale right has undergone a positive evolution thanks to a more transparent and efficient system.

Would you like more information or assistance about this? Do not hesitate to contact our specialists on +32 (0)2 747 40 07 or via [email protected] .