ARTISTS’ RESALE RIGHT REGULATIONS

SUBSIDIARY LEGISLATION 415.03

ARTISTS’ RESALE RIGHT REGULATIONS

14th August, 2006

LEGAL NOTICE 174 of 2006.

The title of these regulations is the Artists’ Resale Right

Regulations.

The purpose of these regulations is the implementation of

Directive 2001/84/EC of the European Parliament and of the

Council of the 27th September, 2001 on the Resale Right for the

Benefit of the Author of a Work of Art.

In these regulations, unless the context otherwise requires -

"art market professional" inter alia means sales rooms, art

galleries and dealers in works of art in general;

"author", in relation to a work, means the person who creates the

work;

"collecting society" has the meaning given in regulation 11;

"contract date", in relation to a sale, means the time at which the

contract of sale of the work was made;

"copyright" has the meaning given in article 2 of the Copyright

Act;

"EEA State" means a Member State, Iceland, Liechtenstein or

Norway;

"r e s al e " r e f e r s t o t h e s al e o f t h e w o r k b y t h e a r t m a r k e t

professional after the first transfer of ownership by the author;

"resale right" and "resale royalty" have the meaning as given in

regulation 4;

"sale price" is the price obtained for the sale, net of the tax

payable on the sale, and converted into euro at the European

Central Bank reference rate prevailing at the contract date;

"the seller" means the person or undertaking on whose behalf the

sale is conducted;

"transfer of ownership by the author" includes in particular -

(a) the sale of the work by the author;

(b) the giving of the work as a gift by the author;

(c) transmission of the work from the author by

testamentary disposition, or in accordance with the

rules of intestate succession; and

(d) disposal of the work by the author’s personal

representatives for the purposes of the administration

of his estate;

"work" means any work of graphic or plastic art such as a

picture, a collage, a painting, a drawing, an engraving, a print, a

lithograph, a sculpture, a tapestry, a ceramic, an item of glassware

and a photograph

Provided that a copy of a work is not to be regarded as a

work unless the copy is one of a limited number which have been

made by the author or under his authority.

The author of a work of art in which copyright subsists

shall, in accordance with these regulations, have a right, known as

the resale right, to a royalty on any sale of the work which is a

resale subsequent to the first transfer of ownership by the author.

Such right is inalienable and cannot be waived, even in advance.

(1) The resale right shall apply to all acts of resale

conducted by art market professionals.

(2) The royalty shall be payable by the art market professional

who effects a sale of the work which is a resale subject to the first

transfer of ownership by the author.

(1) The resale right shall not apply in the case of a work

which fulfils the following two conditions

(a) the seller previously acquired the work directly from

the author less than three years before the sale; and

(b) the work has a sale price not exceeding 10,000 euros.

(2) The resale right shall not apply in respect of works the sale

(3) The resale right shall not apply to those acts of resale

effected directly between persons acting in their private capacity

without the participation of an art market professional.

(4) The resale right shall not extend to acts of resale to

museums which are not for profit and are open to the public

Provided that the persons effecting the sale are so doing in

their personal capacity.

The royalty provided for in regulation 4 shall be calculated

as follows

(a) 0% for the portion of the sale price up to and including

euros 1,499;

(b) 4% for the portion of the sale price from euros 1,500 to

euros 50,000;

(c) 3% for the portion of the sale price from euros

50,000.01 to euros 200,000;

(d) 1% for the portion of the sale price from euros

200,000.01 to euros 350,000;

(e) 0.5% for the portion of the sale price from euros

350,000.01 to euros 500,000;

(f)

0.25% for the portion of the sale price exceeding euros

500,000

Provided that the total amount of royalty may not exceed

euros 12,500 and the sale prices referred to above are net of tax.

(1) The royalty provided for in regulation 4 shall be

payable to the author of the work and, after his death, to his

successor.

(2) A successor in title shall benefit from the resale right only

after 2010 in respect of a resale which takes place after that date

Provided that the Minister may by order extend the above

commencement date until 2012 after representations made by Malta

with the European Commission.

(1) The resale right in respect of a work is transmissible by

testamentary disposition or in accordance with the rules of intestate

succession; and it may be further so transmitted by any person into

whose hands it passes.

(2) The resale right may be so transmitted only to a natural

person.

(3) Notwithstanding subregulation (2), a resale right may be

transmitted as bona vacantia.

(4) Where a resale right is transmitted to more than one person,

it shall belong to such persons in co-ownership.

The resale right connected with a work shall continue until

the copyright in the work expires.

The resale right may be exercised by the holder

independently or through a collecting society operating under the

conditions provided for in the Copyright Act and regulations made

thereunder.

(1) A holder of resale right in respect of a sale, or a person

acting on his behalf shall have the right to obtain information from

any art market professional in relation to the sale.

(2) The information that may be so requested is any that may

be necessary in order to secure payment of the resale royalty.

(3) The art market professional to whom the request is made

shall do everything within his power to supply the information

requested within ninety days of the receipt of the request.

(4) If information is not supplied in accordance with

s u b r e g u l a t i o n ( 3 ) , t h e p e r s o n m a k i n g t h e r e q u e s t m a y, b y

application to be filed in the First Hall of the Civil Court within one

month from the expiry of the ninety days mentioned in

subregulation (3), demand an order from the said court compelling

the person from whom the information may be demanded to supply

the information. The application shall be secured on the other party

who shall also have a right to reply.

(5) Information obtained under this regulation shall be treated

as confidential.

(1) The resale right may only be exercised in respect of a

sale by a natural person who is a national of an EEA State.

(2) An author who is a national of a third country and his

successors in title shall enjoy the resale right in accordance with

this regulation only if, the legislation in the country of which he or

his successor in title is a national, accords resale right protection to

authors from the Member States of the European Union and their

successors in title.

(1) The provisions of these regulations -

(a) do not apply to sales where the contract date precedes

the commencement of these regulations; but

(b) apply notwithstanding that the work sold was "made"

before such commencement.

(2) Subject to the provision of regulation 8, where an author of

a work who is also the owner of copyright in the said work died

before the commencement of these regulations, he shall be deemed

to have transferred his resale right to his successor in title.