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1 Proposal of law No. 45/X explanatory memorandum 1. This Bill proceeds to the transposition into the national order of the Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art that is the subject of successive disposals, aiming at the harmonization of this law at Community level, by reason of the need felt to prevent distortions between the national legal orders which may impede the normal functioning of the market intern. 2. Historically, the resale right was born in France by a 1920 law. There was time that opinions were demonstrating in order to find a legal and economic solution to the fact that the artist, and your family, once transferred to others the work of art expressed in a material support, watch, sometimes extraordinary financial valuations your work in the art market. In some cases, the original sale of a work of art by the artist, made at the beginning of your career, or at a time when the author is unknown to the public, at a reduced price, almost symbolic. Later, under the influence of the normal functioning of the art market, the work can reach high values. When that happens, who benefits from the appreciation of the work are third parties and not the author. Sometimes, there are cases where the price disproportion is very significant. This disproportion, that allows up to some, enrichment from the value of the work in the secondary market without being connected to the creation of the work, shocked many spirits. In fact, in the late 19th century and early 20th century, could be, with some frequency, the author live poorly the your creative labor, while others got rich with successive transmission of your work. In our days, the reality is no longer that, except maybe for the young creators, while the secondary art market continues to surprise the audience with the value reached for some transactions, especially at auctions, the result of aesthetic options, fashion and cultural marketing. Obviously, without forgetting the merit and the talents of authors. 3. The idea that was being cherished by artists, lawyers and politicians, in the face of the existence of such sociocultural phenomena, that's how to create a 2 engine which allowed somehow to the author, benefit economically with the successive transfers of your work in the secondary art market, i.e. after the primitive sale made by the artist. 4. The resale right is born, basically, and the recognition of the peculiar nature of the object produced, usually your character's unique and unrepeatable, or the use of plastic works on the subject of legal traffic. In the first case, because the work of art, painting, sculpture or other, is the Act of creating and your body expression merged in a manner inseparable. In contrast to other works of the human spirit and different creators-writers, musicians – that can be subjected to the Gutenberg model – that is, the possibility of multiple copies and reproduction modes of use of the original of a work, allowing the author to benefit from successive uses of this – in plastic work, the author does not have this possibility, and perform once the economic value of the work performed by taking a high risk. In the second case, because during centuries, the artists worked mainly for families, aristocrats, Kings, Church, patron. The artist's craft was determined by the orders and at the service of the theme. The artwork was not so much an end in itself, as an exercise of power or an instrument for the transmission of values. Roughly speaking, between the 17th and 18th centuries, operated the revolution: the artists have passed progressively to work without being necessarily in order, selling their creations to a new entity, the public. Thus, the artist gains in creative freedom, sets the base in your a boost creator, but is conditioned by the shapes of the public, expressed through the formation of the market. At present, the relationship between the creator and the public is largely fed and mediated by a diverse set of knowledge, professions and institutions (critics, teachers, art galleries, auction houses, museums, foundations, editorial activities, etc.) 5. The resale right is still the subject of strong controversy in the doctrine. It is understood the reason: in legal terms, the reasons for that were being put forward are historically more social, emotional, subjective. It's not easy, in strictly rational terms and find solid arguments to justify the existence of a right of the author's participation in the perception of a monetary amount corresponding to a percentage of the price of each of the successive transfers of the work of art. Therefore, some lawyers and legislators inclined-3 to consider that the resale right should just focus on the added value that if between two successive transfers of the work, and not on the price of each of the transactions. This legislative trend had repercussions in initial Portugal in 1966. And, even after the legislative change occurred with the publication of the current code of copyright and related rights and the wording of article 54, your not dissipated the controversies, now focusing on the interpretation of this standard, whose understanding of the resale right now is done through "theory of surplus value", sometimes by applying the percentage on the price of each transaction. This last option has gained adherents among legislators, having been welcomed in the Community directive. Among other reasons, experience has shown that it is very difficult to proceed with the calculation and determination of surplus value between two transactions, which, together with the absence of an appropriate mechanism for monitoring the sales of works of art in the secondary market, motivates the widespread absence of almost regular concrete application of the resale right. The incidence of the resale right on each transaction, even in the case of sale at a loss-less than the price of the last divestment – gives rise to perplexity. 6. In international law, at the multilateral level, the resale right has been upheld in the Berne Convention for the protection of literary and artistic works, in conventional text Review Conference of Brussels in 1948, as article 14 have. The Berne Convention, which was ratified by Portugal, established the resale right as College optional for Member States of the Union, subject to the principle of reciprocity material. In a sense, the drawing of the resale right represents an exception to the principle of national treatment provided for in paragraph 1 of article 5 of the Convention. In this way, the protection of foreign authors, even if citizens of a Union State, under national law, shall be subject to verification of reciprocity, in accordance with the procedure indicated. This condition does not apply, however, in the territory of the European Union, in particular in view of the effects of the case-law of the Court of Justice in the case of judgment "Phil Collins", which prevented the establishment of principles and criteria unequal treatment of authors originating in any Member State. Moreover, the reaffirmation by the Court of a non-discriminatory treatment to be applied to authors of the European Union, has been one of the reasons that prompted the adoption of the European directive. 4 in fact, several Member States – with particular emphasis for the United Kingdom, one of the most important art markets in the world – do not integrate in your resale right legislation. This situation, in almost all countries of Anglo-Saxon influence, carries significant distortions in the internal market and is potentially in breach of competition rules. In order to avoid doubts of interpretation of Portuguese law, the inclusion of a provision which requires the allocation of the resale right to authors from countries not members of the European Union, only in case of existence of the principle of reciprocity. 7. The Directive, like the Berne Convention, stipulates in your recital 1 and in article 1 that the resale right is an unassignable and inalienable right, a. This legal qualification implies considering this heritage law as of a special nature, own a personal right. Indeed, the exclusion of the transferability of the resale right is an exception to the general principle of free transmission of economic exploitation of works protected by copyright, striking aspect of exclusive right; and obviously means a special protection of the author and his heirs, seen by the legislator as likely to not resist the leverage of some subject with greater economic capacity on the market; It is still also statement of the persistence of an idea that sees the artist a fragile, manipulable and poor, historically outdated. 8. The directive qualifies the resale right as a right of enjoyment that allows the author of a work of graphic or plastic art original benefit from a consideration about the price of each transaction and the successive disposals, after your initial alienation by the author, tax-free. The purpose of the law is constituted by the work material, in particular the support on which the protected work is incorporated (recitals Nos. 1 and 2). However, and contrary to the provisions of the Berne Convention, the directive does not affect the resale right on the original manuscripts of writers and composers. 9. The directive, in terms of scope, aim provides that the resale right applies to the original work of art, therefore, any work of graphic or plastic art, to the extent that they are performed by the artist himself or the case of copies considered to be original works of art. In General, there are no problems when it comes to unique works. The problems of interpretation arise when the artist uses techniques leading to the preparation of a 5 preview template or from a negative, from which to get the object that he wants to produce, which can be reproduced in limited copies, the author to determine what those he assumes as having creative value. The directive lays down that the copies of works of art covered by the scope of application should in principle be numbered, signed or otherwise duly authorised by the artist, in order to preserve the link to the author's work and your originality, only being allowed the use of interpretation, in exceptional cases, and through dominant uses allowed in the cultural communities to which they relate the works in question. 10. The resale right in accordance with article 1 of the directive, applies to all acts of resale of the work involving sellers, buyers or intermediaries art market professionals, including auctioneers, art galleries and, in General, any dealers in works of art. Outside, are all acts of resale of the work whose subject are not acting as professionals in the art market, including those that have not-for-profit museums and are open to the public. 11. Contrary to what is expected in the current article 54 of the code of copyright and related rights, the directive has opted for a system of degressive rates by price bands, being established a minimum threshold below which the resale right does not apply (3 000 €), granted, however, the Faculty of Member States establish national thresholds lower than the Community threshold. Despite the freedom given to the States by the directive, it was decided to adopt the system proposed in the directive. 12. According to the directive, the payment of the contribution corresponding to the resale right should compete to the seller of the work and, in the alternative, the art dealer. In addition to the determination of the natural or legal person – – required by law to the effective fulfilment of the resale right, it is important to establish control mechanisms that enable transactions to the author or to your representative to obtain the guarantee of the exercise of the right. It is known that the mere abstract forecast of the resale right in law has entailed, in most States, your effective compliance not on socio-cultural practice. Hence the need to create a mechanism to enable access to relevant information, able to make the operating system. 6 Care, however, that the access to information act in respect for confidentiality of information in the possession of the dealer and do not have to do, directly or indirectly, with transactions of works of art. Therefore, access is conditioned to the information strictly necessary to understand the exact terms of the acts of trade relevant here. 13. The directive leaves to the Member States, in obedience to the principle of subsidiarity, the institution or not, mandatory collective management as the instrument likely to allow the normal liquidation and collection of payments involved in the right to sequence. It is important, in this context, stress that the right in question, with a view to your peculiar nature, is in the author's personal legal sphere. He's the one and only holder of the right. This is why the legitimate option for managing individual or collective management is a college which should be left entirely free to the right holder. The legislature, as a general rule, should refrain from imposing one of the management modalities of the exercise of the right in question. That doesn't mean that if you don't recognize the positive virtues in favor of the author, which are present in the field of collective management. However, the legal provision of compulsory collective management is permissible only in exceptional cases, which does not seem advisable or necessary in this situation. 14. The duration of the protection conferred by the resale right corresponds to that provided for in article 1 of Directive 93/98/EEC of 29 October 1993 on the harmonisation of the term of protection of copyright and certain related rights, that is, during the lifetime of the author and 70 years after your death , in the sphere of legal heirs. 15. The transposition of the directive now concerned, implies the reformulation of article 54 of the code of copyright and related rights, standard applicable to resale right. 16. Take the occasion of transposition of the directive on the resale right to introduce a new wording to paragraph b) of paragraph 1 of article 7 of the Decree-Law No. 332/97, of 27 November, diploma for the national law transposing the directive no. 92/100/EEC of 19 November 1992 on the rental right the right and lending right and on certain rights related to copyright. The amendment seeks to grant only to producers of phonograms the rights granted by the directive, excluding producers of videograms in the matter concerned. 7 Thus, clarify some doubts as to the exact scope of the directive, in order to respect the sense of purpose that it contains, which determined the European Commission to initiate infringement proceedings against Portugal in court (case No. 61/05). The directive "lease/lending" sets out an exhaustive list and limited to holders of rights who are assigned the new legal faculties in it. Now, the producers of videograms are not covered, but the producers of the first fixation of the film, unlike so far provided for in Portuguese law.
So: under d) of paragraph 1 of article 197 of the Constitution, the Government presents to the Assembly of the Republic the following proposal of law: Article 1 subject-matter this law regulates the resale right, national law transposing the Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art and amending Decree-Law No. 332/97 of 27 November.
Article 2 Amendment to the code of copyright and related rights article 54 of the code of copyright and related rights, approved by Decree-Law No. 63/85, of March 14, as amended by laws No. 45/85 of September 17, and no. 114/91 of September 3, by Decree-Law No. 332/97 and no. 334/97 , both of 27 November, and by law No. 50/2004, of August 24, is replaced by the following: ' article 54 [...] 1-the author of an original work of art, not of architecture or applied art, is entitled to participate on the price obtained, free of taxes, from the sale of this work, carried out by the intervention of 8 any agent acting professionally and securely in the art market, after your initial alienation for that. 2-For the purposes of the preceding paragraph, "original work of art any work of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, serigraphs, lithographs, sculptures, tapestries, ceramics, glassware and photographs, to the extent that it is executed by the author, or in the case of copies considered to be original works of art, which should be numbered signed or authorised by him anyway. 3-the right referred to in paragraph 1 is inalienable and irrevocable. 4-the participation on the price provided for in paragraph 1 shall be as follows: a) 4% of the selling price, the amount of which is between € 3 000 and € 50 000; b) 3% of the selling price, the amount of which is between € 50 and € 200 000, 01 000; c) 1% of the selling price, the amount of which is between € 200,000.01 and € 350 000; d) 0.5% of the selling price, the amount of which is between € 350,000.01 and € 500 000; and 0.25%) on the sale price, the amount of which exceeds € 500 000, 01. 5-the total amount of participation in each transaction may not exceed € 12 500. 6-the exception to the preceding paragraphs, any transaction of original work of art that is intended to integrate the heritage of a nonprofit Museum and open to the public. 7-payment of participation due to the author is the responsibility of the seller of the original work of art and, in the alternative, the active entity in the art market through which operated the transaction. 8-the author or your authorized representative, in order to enforce the right of your participation, you can claim any intervening in the transaction of the original work of art strictly useful information 9 this effect, using, if necessary, the appropriate administrative and judicial means. 9-the right to claim the information referred to in the preceding paragraph shall become statute-barred within three years from the knowledge of each transaction. 10-the right referred to in paragraph 1 can be exercised after the death of the author, by the heirs of this, up to the expiry of copyright. 11-the assignment of this right to nationals of non-EU countries are subject to the principle of reciprocity '.
Article 3 amendment to Decree-Law No. 332/97 of 27 November article 7 of Decree-Law No. 332/97, of 27 November, is replaced by the following: ' article 7 [...] 1-[...]:) [...] b) to the producer of phonograms, in respect of their Phonograms; c) […]. 2 - […] 3 - […] 4 - […].»
Seen and approved by the Council of Ministers of 20 October 2005 the Prime Minister the Minister of Parliamentary Affairs Minister Presidency
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