The author's share. Droit de suite in Russian
ARTinvestment.RU   26 мая 2008

Advantages and disadvantages of the new order

The authors and their successors, as a rule, highly subjective approach to the problems of payment. Existed before 1 January 2008 the terms of payments in the right of the course, seemed unfair to them.

But there is another point of view: a certain threshold (in percentage or percentages), the excess in the resale of works of which entitles the author to receive income - this is a very sensible step legislator. First, the authors and heirs may receive additional revenue, if over time the market will be valued higher, for example, artistic, cultural and historical value works to increase demand for the work of the author, society, the judges recognized his work a kind of cultural phenomenon. Secondly, the measure protects the sellers, buyers, brokers from inflation.

In the third, eliminated barriers to the acquisition by investors, collectors of works of contemporary visual arts and to the free and legal treatment of this subject on the market. In doing so, the financial risks and possible losses of owners of falling. In the fourth place, strangely enough, this action is consistent with the interests of authors and their heirs.

Duty of seller to pay the author (his heirs), with any resale of works of a certain amount, regardless of the amount of the transaction, increases the price of the object. Sellers are trying to include the purchase cost of the remuneration payable on the law is followed. But whether the buyer agrees to overpay? Whether benefit of the authors and their successors? Hardly.

In addition, those who do not want to overpay, to search for the author's heirs or their representatives and to understand who and how many to list, if desired can easily evade such responsibility.

Reference

of the right applies only when the public resale of the work. The answer to the question, what is the resale of the public, contained in Art. 1293 Civil Code. That is considered the resale, in which the seller, buyer or intermediary involved fine art gallery, art shop, shop, or other similar organizations. (Blur phrase «such organization» in the future could lead to disputes and discrepancies. But, for example, the realization of works on public or private tenders should also be recognized by its public resale.) If the formal sale and purchase transaction concluded without the participation of such organizations, the remuneration paid to the author will not. For example, the documents to the buyer, the seller, the mediator will make no gallery, and some trusted individual. In addition, of the right does not apply if the change of ownership as a result of other transactions.

In a society as well as by specialists on the right appear in the form in which it now exists, is ambiguous. Supporters of the newly established order of state equity in the distribution of gains from resales, and the need to share part of those profits with the person who created a work of art. The need to support the authors who receive the basic income from the sale of their works, and the heirs, who are usually relatives and friends of the authors. In doing so, give examples of incorrect assessment of the first sale, and links to cases in which the authors, or heirs, finding themselves in a difficult situation, under the influence of deception, delusion, doubt to part with works for peanuts, or give them, exchanged, etc. Later in the resale price of these products are often very high, and the payment by way of rights of the authors and may compensate for their lost loved ones or lost once the amount.

True, it is supporters of payments in each case, re-recognize that hardly young and little-known talents who will be able to get significant support. At more or less significant income is to count only the venerable authors and their heirs. It is possible that in Russia the number of deals with works that have good sponsors and the heirs, who moved to the right destination, at a time will decrease. For example, Russian entities may refuse to participate in the sale of work, if you do not know the whereabouts of the author and his heirs, if the cost of the work and, consequently, the percentage of the gallery, the shop is not large. But of course, all this is only theory. Too hard to imagine the rejection of lucrative deals because of the difficulty of the law is followed. It is also possible that some products are in demand will increasingly turn to the markets of the countries in which the law does not apply, or of the remuneration paid by the authors below. In this case, the authors and their heirs would be difficult to trace the fate of works.

There is another problem: even if the author, his heirs or the organization that represents them, and catch suspects, are unlikely to obtain sufficient evidence for trial misconduct obliged person. Incidentally, in the courts for claims filed in the interests of authors, their heirs, the problem is likely due to the fact that the jurisprudence on the application of rules on the law of the Civil Code has not yet emerged. Yes, and legal scholars for many years arguing about the nature of this right and, consequently, what rules should apply in his defense, passing to others. Some experts believe this is the right property, while others argue that the right of the - Moral rights ... The legislator is a new IV of the Civil Code solved this problem this way: the right destination, and at the same time the author's right of access to his works have been attributed to a kind of «other rights». In science the exemption, in the absence of detailed regulation of «other rights», generate new disputes, and enforcement is likely the problem.

The objective and subjective difficulties in the application of the law and enforcement responsibilities under payments under the new procedure can brake in our country, the process of withdrawal of art, created relatively recently, from the shadows, investing in them. It is possible that the market will become even less transparent, as with many such items would be less than the committed transactions from the official participation of galleries, art salons, stores, etc.

The same art market participants who act in such transactions as brokers, salespeople, buyers, willy-nilly will have to adapt to changing realities, and just in case prepare to increase the number of substantiated and unsubstantiated claims of rights and their representatives.

For example, some creative person and their heirs, with patchy information on the above-mentioned ordinance, interpreted it wrongly, and now recall past instances of resale of their creations, intending to seek compensation under the new rules. Others, moreover, erroneously expect to receive a guaranteed percentage of the transaction for any resale of the subject, even if the gallery, art shop, and a similar organization was not involved in the transaction, ie, mandatory feature of the transaction there is no publicity. Others are ready to claim the percentage of «in the order of» is already at the first sale of the subject.

Reference

of the right extends only to the resale of the original works that are not owned by the author, his heirs. In doing so, it does not matter whether the author gave to the original, sold whether it has changed ... If the author, his heir, or representative acting on behalf and in the interests of the author's heir, sold through a gallery picture, then right following does not apply. But in the future when the public resale of every new owner of the work should be applied right to the equity.

Go to ownership of works of authors to the others does not entail an automatic loss of copyright. But at the same time and the right owner and the author's rights are limited by law. For example, the owner can commit to the product of a transaction, expose it for public display and the author must provide, upon request, access to the product (for example, if he wants to make a copy of their own work), and in the sale of works from the former owner retained remuneration for the benefit of the author.

Decision of 19 April 2008, as stated therein, shall enter into force on the day of its official publication, but it applies to the relevant legal relationship arising from 1 January 2008. This certainly is a hindrance as a reward for taxpayers, and for the parties to the art market, acting as intermediaries in transactions of sale.

Misconceptions of authors and their successors on the content and scope of their rights may lead to the application of unreasonable demands for payment of rewards to customers and organizations, participants in the art market, to mediate in the transaction for resale.

Reference

payers pay the sellers are the original works, and recipients - the authors or their heirs (of the right holders).

The persons collecting the pay, according to an Order of 19 April 2008, are:

• organizations conducting collective management of the law, if they are public accreditation;
• direct recipient of compensation, refused to accredited management organization of its right to appear in the order established by paragraph 4 of Art. 1244 Civil Code;
• organization conducting collective management of the law on the basis of the recipient pay the contract of transfer of authority to manage his right, seized control of the accredited organization.

The first and last cases, the distribution of remuneration and payment of their recipients produces responsible organization. In the second case, this obligation rests with the payer.

These persons gallery of fine art, art shop, shop, or other similar organization, participated as a seller, buyer or intermediary in the public resale of original work, must submit copies of documents confirming the resale price of the original works, as well as other documents required to collect and distribute remuneration. The list of documents and deadlines for submission are defined in the contract.

In turn, the payer and the assembler to align remuneration prescribed in their contracts the collection of remuneration of its listing sponsors, heirs.

The amount of remuneration as defined in the annex to the decree of 19 April 2008, is shown in the table.

Right from which it is impossible to refuse

One can imagine the options when art dealers offered to authors and their heirs to sign certain documents which directly or indirectly made out of the waiver. For example, to the effect that neither the live author nor his future heirs are not entitled to receive remuneration in the future resale of public works. Sometimes the paper notes that the right of the author, his successors sent the new owner works or mediator, etc.

legal effect, however, such waivers were voluntary, forced, like the transfer of shares, are not. This alienated the right (!). He could not refuse, even if the author is so willing. But he or his heirs may, in accordance with certain gentlemen's agreements in each case re-execute waivers of receipt of the relevant amounts. In addition, the right to stake the author can not give way. It passes from the author only to his heirs, and to anybody else. This means that, for example, the former owner of the work (the collector, investor), who is neither the author nor his successor may not qualify for reimbursement under further public resale. Although in practice there are cases where the heirs of collectors whose property was once were the work of veteran artists who attempted to prove in court their right to compensation in the order of law is followed. However, the success of such claims did not have: if the courts and made decisions on the remuneration of resale holding status only for the benefit of authors or their heirs.

turbulent cultural legacy

Inheritance rights in our country comes under the law and /or as a bequest. In the first case (where the author's will is missing, if it is valid if the testator in the will does not resolve the issue) the heirs, as a rule, are relatives, dependents and other persons specified in the relevant articles of the Civil Code. The second - the heir or heirs in the will determine the author himself.

At the same time to the heirs at law or under a will does not affect the personal moral rights of the testator, such as the right of authorship, the right to a name. But among other moves to the right of the succession, to the great displeasure of payers reward organizations and intermediaries.

By the way, in the national legislation of other countries that recognize the right of the equity, the question of his succession is permitted in many ways. Some recognized the right of the author only, and excludes the very possibility of its transition to others, even in the order of succession. Elsewhere, as in Russia, the right equity may proceed as to the heirs under the law, and to the heirs as a bequest. Somewhere in the transition of the law is possible only to the heirs under the law, but somewhere, on the contrary, only to persons referred to in the author's testament.

Pay attention to the wording of Clause 3, Article. 1293 Civil Code «the right of the ... passes to the heirs of the author». Thus, the heirs of the heirs are not entitled to receive such payments.

For organizations, brokers and sellers if there is no organization responsible for the collection of remuneration by way of law of the relevant question is not only to search the beneficiary or payee, but also on the distribution of remuneration among several recipients - for example, if inherited a few people came. The difficulty is that copyrights are indivisible. The certificate of right of inheritance may be a right one of the heirs to receive royalties, but this does not mean that only the heir has the right to receive remuneration and under the law is followed. The heirs are required to agree on how to be shared between them the money received by way of law is followed. If the dispute arises, it can only allow the court. But until it comes to court, the heirs would interfere with each other and with persons obliged to make payment. In addition, these heirs have loved to prove their right to receive payment for some reason it payors, rather than judges. Even if the dispute is submitted to the court proceedings are often delayed, as a cultural heritage - the case though troubled, but often very profitable, and the parties to the conflict to fight for it until recently.

And all the time, until the court or by the heirs will share the results of creative activity and the right, in a difficult position and will be a shop, gallery, art shop, participating in the transaction as a seller, buyer, broker, and persons , works of art and manuscripts. Indeed, to fulfill its responsibilities under the agreements, a payment will not be possible. Trouble is likely, and after the heirs reached a compromise, or where the court in its decision finally to determine the rights of heirs and distribution of payments between them in order of law is followed. Warring heirs can unite and speak with one voice to the already payers, accusing them of dereliction of duty.

There are also situations where the recipient of the remuneration under various pretexts to delay the registration of the contract will begin, to shirk its conclusion. Then it will require payment in view of the sanctions for the delay.

avoid any adverse events only if the person liable to pay and sign contracts with the collectors of remuneration, will be able to prove that the delay in payment was not their fault. Universal recommendations on how the seller, shop or art gallery to do in each case, what documents at issue and, given difficult. Rather, in each case the appropriate payors contact lawyers to provide legal support payments.

If the heirs under the law and not by will, or they are not law, suspended or abandoned by inheritance, or inheritance is not accepted, then a member of the exclusive right of inheritance is not the product passes to the State, but simply terminated. This piece goes into the public domain (Article 1151, Civil Code 1283).

term of protection

Payment of the order of the law are made within the validity period of the exclusive right to work. These dates are art. 1281 Civil Code. Paragraph 1 of Article provides that the right to operate throughout the life of the author and for seventy years, «as from 1 January following the year of the author's death».

exclusive right to work, created with co-authors, is valid during the entire lifetime of the author, outlived the other sponsors, and over seventy years as from 1 January following the year of his death.

In paragraph 2 of article deadlines to protect the exclusive rights to work, issued anonymously or under a pseudonym. In this case, the term expires 70 years from 1 January following the year of the lawful disclosure of the work. If during this period, the author discloses his identity or his identity will not be further cause for doubt, the exclusive right to act within the time specified in paragraph 1 of this article.

exclusive right to work, issued after the death of the author's valid for a period of seventy years after the works, as from 1 January following the year of its promulgation, provided that the product was made public within seventy years after death author.

If the author of the work was subjected to repression and rehabilitated posthumously, the term of the exclusive right is considered to be prolonged, and 70 years calculated from 1 January following the year of the rehabilitation works of the author. And if the author worked during the Great Patriotic War and participated in it, the term of the exclusive rights established by Article shall be increased by four years.

Elena Pokidova

¹ It is this determination is enshrined in an official Russian translation of the Berne Convention for the Protection of Literary and Artistic Works of 09.09.1886. According to experts, this definition is more precise, best conveyed the essence of the law. Return

² Federal Law of 09.07.1993 № 5351-1 «On Copyright and Related Rights». Return