Proposition 51K2464

Projet de loi transposant en droit belge la directive 2001/84/CE du Parlement européen et du Conseil du 27 septembre 2001 relative au droit de suite au profit de l'auteur d'une oeuvre d'art originale.

General information ¶

Submitted by

PS | SP MR Open Vld Vooruit Purple Ⅰ

Submission date

May 4, 2006

Official page

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Status

Adopted

Requirement

Simple

Subjects

EC Directive copyright intellectual property

Voting ¶

Voted to adopt

Vooruit Ecolo LE PS | SP Open Vld MR

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Discussion ¶

Nov. 16, 2006 | Plenary session (Chamber of representatives)

Full source

Mr. Speaker, Mr. Minister, Colleagues, the Committee on Business discussed this draft during the meetings of 7 and 20 June, 5 July and finally 24 October.

During the first meeting, the draft was explained by the Minister. The proposal aims to transpose the European Directive on the right of succession to the author of an original artwork into our legislation.

The follow-up right is a right that allows the author of an artwork to receive a compensation whenever his artwork is sold at a public auction. The aim is to ensure that the author can also enjoy a sale of his work in the future.

The purpose of this Directive is to eliminate distortions of competition within the European market and to ensure the proper functioning of the internal market. Follow-up rights are currently regulated in the national laws of the Member States, but these laws differ considerably from each other, for example with regard to the rates of follow-up rights. Those differences therefore also affect the conditions of competition, and this Directive is therefore intended to create a uniform regime for all Member States.

Then the Minister gave a brief overview of the main measures of the draft.

First, there is a uniform terminology.

Second, the scope of the follow-up right is determined.

Thirdly, the draft provides for an exception for promotional sales. This exception was made at the request of the auction houses, the art galleries and the management companies.

Fourth, a fourth measure concerns the threshold on which the follow-up right applies. The directive proposes to fix it at 3,000 euros. However, the draft proposes to maintain the existing threshold of EUR 1,250. The directive allows the introduction of a lower threshold.

Fifth, a fifth measure relates to the administrative settlement of the succession right. Thus, the draft makes a distinction between the resale at a public auction and the sales that are not.

Sixth, a sixth measure gives management companies and authors the right to request information on the collection and distribution of the right of succession. Of course, the draft provides for a transitional arrangement for art galleries.

Finally, the Minister also communicated that the draft should in principle have been transposed by 1 January 2006 into our legislation. Therefore, he also urged to bring our legislation into line with the Directive as soon as possible.

Several members of the committee had called for the organization of hearings. Six interested parties were heard by the committee. First, Mr. Raemdonck, on behalf of the Professional Association of Traders in Modern and Contemporary Art, spoke. This association defends the interests of all galleries. He pledged to raise the minimum price to 3,000 euros, instead of the proposed 1,250.

The next speaker was Mr Serck, who spoke on behalf of the Chamber of Auction Halls. This speaker also called for the increase of the minimum threshold to a sum of 3,000 euros. He believed that a lower threshold would further undermine our country’s market position.

The third speaker, Mr Carlier, spoke on behalf of the Royal Association of Professional Artists of Belgium. He called for keeping the threshold as low as possible. The percentage of consistency, on the other hand, should be placed as high as possible.

Mrs Verstringe then spoke on behalf of SABAM, the Belgian Association of Authors, Composers and Publishers. Like the previous speaker, she held that the threshold in the design was too high. According to her, this was detrimental to young, beginner artists, because they never get such prizes.

The next speaker was Ms. Malengrau, on behalf of SOFAM, the copyright management company specializing in the visual arts. He also called for a lower threshold. It specifically proposed to lower the threshold to a sum of 1,000 euros.

The last speaker to be heard was Mr De Maere, who represented UBEMA, the Union of the Belgian-Luxembourg art market. He was in favour of raising the threshold to €3,000, as this amount was already accepted in other countries.

After the hearing, there was, of course, a possibility to ask questions by the members, to the persons who were heard. At the beginning of the actual discussion of the draft, the chairman of the committee pointed out that the deadline for transposition of the directive had already expired. He hoped that the committee would be able to finish its work quickly.

Collega de Donnea pledged to maintain the threshold of €3,000. A lower threshold would generate more administrative burden. He also questioned whether young artists would get better from a lower threshold. In addition, a threshold of €3,000 would also prevent the art market from moving abroad.

Collega Pieters has joined the initiative, and she also raised a number of arguments on why a threshold of 3,000 euros is best provided.

Meyer, on the other hand, opposed a higher threshold. According to her, a higher threshold would be mostly at the disadvantage of young, beginner artists, while just that group has difficulty keeping their head above water.

Also colleague T'Sijen is in favor of ⁇ ining the threshold at 1.250 euros and he also called for a postponement until 2010.

In his response, the minister stated that the government had decided to let Parliament determine the threshold. He also supports an evaluation of the fixed threshold amount over 1 to 2 years.

Finally, a number of amendments were submitted and then the entire amended draft was adopted by the committee with 12 votes in favour and 3 abstentions.

Mr. Speaker, colleagues, when the Minister stated that it was a difficult file to tranch, I thought we would become wiser by holding hearings. The draft law on the right of succession is the transposition of a European Directive of 21 December 2001. The Directive had to be transposed by January 2006. Since the draft law was only submitted on 4 May 2006, it was impossible from the outset.

Furthermore, the treatment of the draft law has been ⁇ lengthy, mainly because the majority was repeatedly out of number. The hearings made it clear to us that not all parties involved are on the same wavelength and then mainly with regard to the threshold of the sales price to which consistency applies.

As we learned from the report, there are, on the one hand, the representatives of the artists: SABAM, the Royal Association of Professional Artists of Belgium vzw and SOFAM. They consider a threshold of 1.250 euros an absolute maximum. With a higher threshold, young artists would no longer be able to get to their tracks. On the other hand, there are the BUP, the Chamber of Auctions and UBEMA. They are advocating for a follow-up fee of 3,000 euros in order to remain competitive with the art trade abroad. In fact, they look at the follow-up right together with the high VAT rate of 21% that applies to it in our country. This rate is significantly higher than in other countries.

After many discussions and meetings, the Minister indicated that Parliament will have to take a decision on the opportunity of a possible increase in the threshold.

What a chance, one might say.

He also indicates that the Council of Ministers has not provided for a transitional arrangement, but that it is again up to Parliament to judge on the usefulness of introducing a derogation. At the general meeting, the chairman of the committee asks for a quick decision, as the transposition deadline has expired.

We advocate a threshold of €3,000 and agree with Mr. de Donnea’s argument. We add that vigilance has been required to keep the important art heritage that still exists in our country in our country, as far as it is still possible.

For us, preserving our rich cultural heritage in our country is of crucial importance. It is therefore clear to us that, in the case of a minimum threshold of EUR 1.250, the administrative fee – Mr. Van Quickenborne prefers to engage in the soldees rather than with the actual administrative fee – will increase significantly, while the benefit for the artist himself is minimal. For an artwork of, for example, 1,250 euros, the artist will receive 50 euros, but there is a declaration obligation and therefore a greater administrative burden.

The Minister reiterates that Parliament has the choice to set a new threshold itself and that as many as eight Member States have chosen €3,000. He almost gives us the pot in the mouth.

The Minister argues that Belgium has a high VAT rate, but that is another debate. That is indeed correct. However, the high VAT tax has a direct effect on the prices of works of art and is thus a factor in the debate on the threshold for the right of follow-up. In international competition, it is always about the total plate. If our artistic heritage flies away here, it is mainly because our VAT rate on it is much too high. The debate on this subject is therefore in question.

After another number of meetings, due to the absence of the majority, suddenly new members appear - deputy and others - and our reporter is absent. I don’t know why, but I have a suspicion. They are promoted with new amendments. The amendment of Mr de Donnea, which was signed by the VLD, is rejected, among others by the VLD itself, and a new amendment is submitted by the VLD, sp.a and the PS.

Many committee members have never been present before, have simply not attended the hearings, refuse to assume their parliamentary responsibilities and throw the ball back to the government. In this draft, Parliament is given the freedom to decide on another point, but again the ball is returned to the government. Mr Hove’s amendment to exempt the Belgian resale of artworks of deceased artists who are not sold at public auctions from the right of follow-up until 2010, is repealed by the VLD itself and is replaced by an amendment by Mrs. De Meyer in which the King – not the Parliament! – be empowered to exempt the right of succession to artworks of deceased artists that are not sold at public auctions. Parliament has thus twice been given an excellent opportunity to prove itself, but these opportunities have been overlooked. As for the latter, we have no guarantee that the King will do this. The majority has here renounced its parliamentary rights and duties.

The miracles are not yet out of the world, Mr. President. Your dear Parliament in this matter, which is also dear to you and in which you might be able to speak with more knowledge of matters than many of your VLD colleagues, the ball back to the government that has also not taken a decision or has been able to take a decision. Parliament does not assume any responsibility, may not know what it is about and will return to the government what does not belong to the government, because there has not been a settlement. What a vaudeville! Per ⁇ this is the new VLD: progressive and liberal, but above all indecisive and even no longer able to find a compromise. We will refrain from this because of the threshold. We know that this must be approved and that we are already too late: hence not a no vote, but an abstinence.

I will not be too long.

First of all, I would like to thank Mr. Hove for the quality of his report.

The draft law on the right of succession for the benefit of the author of an original work aims to make Belgian law consistent with a European Directive of 27 September 2001. The main adjustments to the Act of 30 June 1994 on copyright and related rights concern the scope, the tariffs but also the administrative management of the successive right.

The right of succession has an economic importance for the author of a work of plastic or graphic art in that it allows him to participate in the economic success of his work. It thus tends to restore a balance between the situation of authors of works of art and that of other creators who benefit from successive exploits of their works.

Our Socialist Group considers this a good project in that it constitutes above all a comprehensive and intelligent compromise between the various stakeholders concerned. It provides balanced solutions that do not disadvantage the promotion of the interests of new artists, which my group is very sensitive to and has, therefore, remained attentive during the discussions in the committee.

Finally, this project can still be qualified as an “open” project in the sense that it allows, in the context of its implementation and in accordance with the directive adopted in the matter, to carry out adaptations in progress, in an effort to reconcile the various interests at stake on the market of original works of art.

The information and notification measures aimed at ensuring the effectiveness of the collection of the follow-up right have been specified or even strengthened in the project, which already constitutes a significant advance in transparency within the sector.

The word is to Mr. Hove, no longer as a reporter, but on behalf of his group.

Mr. Speaker, Mr. Minister, colleagues, although this bill is in fact nothing more than the transposition of a European directive, there were still a number of opportunities for our country to take advantage of the freedoms that Europe gave us. In fact, it concerned two aspects of the draft, on the one hand the threshold for the exemption from the right of follow-up and on the other hand the scope, in particular the date of entry into force for certain traders, in particular the art galleries. It is therefore not surprising that the discussion focused primarily on these two points.

As the minister explained, the law already provides today for a follow-up right of 4 percent on the sales amount of visual art auctioned to the public. The sales amount must be at least 1.250 euros. There is an exemption here.

Compared to other European countries, there are still numerous differences. In order to ⁇ a harmonisation – I have at least understood it – this European Directive is now there. Competition distortion is limited but not eliminated because, as already stated, harmonisation is not total. For example, Belgium has taken advantage of the possibility to provide for an exception for promotional sales. The directive stipulates that the follow-up right must only be applied from a threshold of 3,000 euros, which is therefore higher than what is currently common in Belgium.

Member States may introduce a lower threshold. The government originally intended to maintain the lower limit of 1.250 euros. However, the Parliament was able to raise this threshold. If we look at the neighboring countries around us, we find that, for example, the Netherlands has already indicated to introduce a threshold of 3,000 euros. Furthermore, a British study has shown that the administrative costs for collecting the follow-up right below the €3,000 – which has already been said here – are unreasonably high compared to what would eventually flow to the artists or later their heirs.

According to some speakers, a low threshold would further undermine our market position. It should also be noted that in our country a higher VAT rate applies than in the countries around us. In the Netherlands there is a rate of 19 percent and also in France there is a lower VAT rate, namely 19.6 percent. Britain has a VAT rate of 17.5 percent. This, combined with a low threshold, leads to competition distortion. Therefore, I had submitted an amendment to raise the threshold to 3000 euros.

In relation to this problem there existed and clearly existed two visions. This breaking line was also clearly expressed during the hearings.

On the one hand, there are people who believe that the follow-up right should also benefit the small artist. A high exemption is for those out of the evil, because then only in the case of expensive and popular works a follow-up fee must be paid. On the other hand, there is a group of people who believe that the artist is especially benefited by a thriving art trade. This is necessary to avoid potential competitive disadvantages. Otherwise, the trade threatens to be relocalized with all the nefarious consequences thereof, also and ⁇ in the first place for that little artist. This group therefore proposes to raise the minimum amount to what was provided for in the Directive.

My personal view is that if the financial proceeds of the follow-up right for the stakeholders – and that should first be the artist himself and only then his heirs – do not outweigh the interests of a thriving art trade, then we must be careful that we do not cause them an excessive competitive disadvantage.

Furthermore, the question arises whether the right of follow-up is in the first place beneficial to the artists and whether there are no negative consequences for the artist, for example the development of a black market, if we lower the threshold. So I partially follow the vision of the second group. Furthermore, it is clear that many others are also concerned about possible competition distortion.

Another aspect concerns the transitional arrangement for art galleries. The Minister’s explanation clearly showed that our country had the legal possibility to exempt the art galleries from subsequent rights until 1 January 2010. This has, by the way, also occurred in France, in particular to ensure that no artificial, to use an appropriate word, competitive disadvantage would be created in relation to its own art galleries. Here too, it is left to Parliament to provide for a possible derogation.

Since a number of neighboring countries prefer to wait until 2010 to implement the directive, I had submitted an amendment in that regard. After all, it is not unthinkable that if our country already introduces the follow-up right and the neighboring countries only in 2010, no one will still want to work through Belgian galleries. In this context, I feel very much for raising the threshold to 3000 euros. In addition, I had also submitted an amendment to exempt the Belgian resale of works of art of deceased artists that are not sold at public auctions from the right of follow-up until 2010. As mentioned above, the European Directive allowed such an exemption.

However, what has been achieved in the committee is clearly a compromise. It is left to the King to determine the date of entry into force of this law, as well as any increase in the threshold amount. This should then allow to flexibly respond to the evolution of the market. In my opinion, however, the government must take its responsibility and safeguard the competitive position of the art trade, reduce the administrative burden in order to effectively defend the interests of the artist.

Mr. Speaker, I will replicate very briefly from my bank, because everything has been said by the rapporteur during the reading of his report.

It is about transposing a 2001 Directive. This should be done as soon as possible. There were two points that the government said the Parliament could tranch. The Parliament ranks, but in the sense that no threshold was fixed, nor was a date of entry into force fixed. This is left to the King. We will therefore fill it with the necessary flexibility and according to godfather and ability.