Resale right

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The resale right is a right that artists allow the resale of their works of art to be involved. The legal basis for this in Germany is Section 26 of the Copyright Act (UrhG). However, the prerequisite for the right to information that is necessary to enforce the law is that the author is a member of a collecting society ( Bild-Kunst , ProLitteris ) (Section 26 (6) UrhG).

For every second sale and for all subsequent sales of original works of art by the art trade , visual artists are entitled to a share in the resale proceeds. In the Federal Republic of Germany the resale right was introduced during Willy Brandt's chancellorship , especially to support young artists. In other countries - within the European Union, for example in Great Britain , Austria , Ireland or the Netherlands  - a resale right was unknown for a long time. The art trade often reacted to the introduction of the resale right by emigrating to countries in which there were no corresponding legal regulations. This was to avoid a competitive disadvantage resulting from the payment of additional amounts related to the resale right.

With Directive 2001/84 / EC of the European Parliament and of the Council of September 27, 2001 on the resale right of the author of the original of a work of art , a legal provision was passed that provides for an EU-wide resale right. The guideline was to be implemented by January 1, 2006. Not all Member States did so, which is why an infringement procedure is being considered.

In Germany, the guideline was implemented on November 16, 2006. Since then, this stake has been 4% of the resale proceeds (excluding taxes [§ 26 Paragraph 1 Sentence 2 UrhG]) for sales up to 50,000 euros and then gradually decreases to 0.25%, with an upper limit of 12,500 euros [§ 26 Para. 2 UrhG]. In the case of sales proceeds below € 400 (excluding taxes), there is no obligation to participate in the resale proceeds [Section 26 (1) sentence 4 UrhG].

Up to November 15, 2006, the participation was 5% of the resale proceeds from 50 euros and there was no upper limit.

In Austria, VAT is applied to the license fee, which is why the European Commission decided in 2018, after several requests for correction to the Austrian government since 2016, to take Austria to the European Court of Justice in Luxembourg . According to Austrian law, the income from the license fees of the resale right is subject to VAT and, according to the legal opinion of the European Commission, this violates the VAT Directive . The European Commission refers to the judgment of the European Court of Justice on C-16/93 (RJ Tolsma) and argues that, since there is no direct consideration for the license fee by the artist entitled to resale rights, it must not be subjected to VAT .

literature

  • Matthias Weller: The implementation of the Resale Right Directive in the EC member states: National regulatory models and European conflict of laws . In: ZEup . 16. Vol. 1, 2008, pp. 252-288.
  • Jörg Wünschel: Article 95 EC revisited: is the Artist's Resale Right Directive a Community Act beyond EC competence? . In: Oxford Journal for Intellectual Property Law and Practice . Vol. 4, No. 2, 2009, pp. 130-136.

Web links

Individual evidence

  1. ↑ Swantje Karich: Praise, dispute, criticism: A survey among those affected on the specifications from Brussels. In: FAZ . January 28, 2006.
  2. ↑ Directive 2001/84 / EC of the European Parliament and of the Council of September 27, 2001 on the resale right of the author of the original of a work of art . In: Official Journal of the European Communities . L, Volume 272, October 13, 2001, pp. 32-36.
  3. ↑ Florian Mercker, Gabor Mues: Who is it actually good for? The new regulation of the resale right. In: FAZ . July 9, 2006.
  4. ↑ Directive 2006/112 / EC
  5. ^ Judgment of the Court (Sixth Chamber) of March 3, 1994. RJ Tolsma v Inspecteur der Omzethabening Leeuwarden.
  6. ^ Journal of European Law, International Private Law and Comparative Law , ZfRV, June 2003, No. 3, p. 115, point 10.