[pp.int.general] Resale rights and 2001/84/EC directive: obscenely enlarging material interests of authors

[Reinier Bakels]

Some comments:
- I am afraid this war is over, there is little to do against it.
- Yes, this "droit de suite" regulation is strange, and controversial, and it always has been.
- Having said that, please note that the scope is relatively limited (of the Spanish transposition is not, the ECJ may correct it). It is only for works of art like paintings that are sold via professional art galeries and auctions, and there is a threshold.
- The purpose is to prevent the "Vincent van Gogh" syndrome: a poor painter selling his works for next to nothing because heen needs the money quickly, finding that only a few years later his works are traded for zillions of euro's. Isn't that a noble, social purpose?
- This situation leads to the more general question: what is *justice* if someone created something, and got very little money for it - that later turned out to be VERY valuable. It is a kind of market failure that can not be remedied by "internalisation". Sometimes copyright and patent law can help, but not always: copyright does not prevent the sale of a physical painting. In basic science, the problem is probably even worse: there are often decades if not centuries between scientific discoveries and actual application. 
Einsteins theories of relativity are essential for GPS receivers - but his heirs will not get a single penny from the next boom in mobile telephones, integrated GPS receivers (and existing navagation systems for cars like Garmin and Tomtom). And 99% of engineering mechanics still draws on the concepts of Isaac Newton - shouldn't his family be VERY rich? Well, this example obviously shows that there are limits. But aren't there limits on the other side as well? The MP3 "inventors" become richer and richer from every MP3 device that is sold. Another example: recently an (emeritus) professor of expermental cardiology told me that his patents raised enough money to cater for his salary AND the salaries of his entire department for all his career.
Im sum, 3 categories of goods can be distinguished:
1. goods that naturally relate to a "token": a carpenter who makes a table gets paid for the table, and gives the table to the buyer
2. for information goods, sometimes something similar can be mimiced using so-called "intelectual property law".
3. but often that does not work either. 

In economic terminology, the production of public goods SOMETIMES can be financed by internalisation, perhaps supported by law. In that case, effectvely the public goods are no longer public goods. BUT there are limits. If the cost of enforcement is higher than the yield, the scheme does not work. Incidentally, that explains the present popularity of criminal law. Then the enforcement cost is norne by the taxpayer. But effectively that subsidises a (supposedly) commercial activity that can not stand on his own feet.

In sum, here we re-nvent the principle of information freedom. Quod erat demonstrandum.    
  
Groeten, Grüße, Regards, Cordialement, Hälsningar, Ciao, Saygilar, Üdvözlettel, Pozdrowienia, Kumusta, Adios, Oan't sjen, Ave, Doei, Yassou, Yoroshiku, Slán, Vinarliga, Kær Kveðja
>>> REINIER B. BAKELS PhD LL.M. MSc
private: Johan Willem Frisostraat 149, 2713 CC Zoetermeer, The Netherlands telephone: +31 79 316 3126, GSM ("Handy") +31 6 4988 6490,  fax +31 79 316 7221
  ----- Original Message ----- 
  From: Carlos Ayala Vargas 
  To: Pirate Parties International -- General Talk 
  Sent: Thursday, December 25, 2008 1:38 PM
  Subject: [pp.int.general] Resale rights and 2001/84/EC directive: obscenely enlarging material interests of authors


  Congratulations, you've bought a brand-new house, in a nice place, nice design and inner distribution, and it cost 200.000 € ... however, 3 years later you have to resell it because you move 500 km far from it; in spite of the current real estate crisis, you become able to sale it for 250.000 €; would you find it reasonable that the architect ask you for a 1 % of the sale price -i.e., 2.500 €-?

  If the answer is no, then try to read Directive 2001/84/EC, and get scared. That Directive is hot news in Spain, as last Tuesday it become announced in the Official State Bulletin the Law 3/2008 (in Spanish) -which implements the EU Directive-; it doesn't abolish the first-sale doctrine, though damages it considerably -it doesn't even consider the difference between sale and resale prices; i.e, if you bought a painting for 50.000 € and you sell it for 40.000 €, you not only lose 10.000 € in the transaction, but also have to pay a 2.000 € fee (i.e., to have a 2.000 € additional loss)!-.

  2001/84/EC is to be applied to the resale of "works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided they are made by the artist himself or are copies considered to be original works of art". While some may argue that houses are not the same as intellectual works, we must point out that 2001/84/EC explicitly states in Preamble, 2nd paragraph, that "the subject-matter of the resale right is the physical work, namely the medium in which the protected work is incorporated" -by analogy, if the same were applied to houses, the royalty wouldn't be applied to the architect design, but to the medium in which the protected work would be incorporated (the house)-.

  As you may see, retrogressive measures are never or rarely applied to author's material rights; they only become larger, and larger, and larger ... regards,


                                                                                                 Carlos Ayala
                                                                                                 ( Aiarakoa )

                                                                         Partido Pirata National Board's Chairman



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