A guide to Non-Fungible Tokens (NFTs), 2023 - Flipbook - Page 33
Given the risks of money laundering targeted by 5MLD are likely to be equally
applicable to the NFT market, it may well be that a broad view would be taken by
the courts in this respect. If that was the case, the regulations would likely have
a wide-reaching application, requiring compliance from NFT platforms, dealers
and artists.
Artist resale regime
The Artist Resale Right (ARR), as introduced by the Artist’s Resale
Right Regulations 2006 (Resale Right Regulations) (implementing
the Resale Right Directive (2001/84/EC)) entitles artists and their
successors in title to a percentage of the sale price where works
are sold in which they have subsisting copyright, subject to certain
conditions, including that the buyer or seller is acting in the course
of a business dealing in works of art and the sale price is not less than
€1,000 (regulation 12).
In the UK, the royalties are calculated on a cumulative sliding scale for sales
achieving more than €1,000, up to a maximum of €12,500 (or equivalent in
British pounds) (see Artist’s Resale Right – GOV.UK (www.gov.uk)). The royalties
are collected on behalf of artists by societies, including the Design and Artists
Copyright Society (DACS) and the Artists Collecting Society (ACS).
Regulation 10 of the Resale Right Regulations provides that the resale right may
only be exercised in respect of the sale of a work where its author was one of
the following:
• Living at the date of the sale and was at that date a national of the UK or
a state the legislation of which permits resale right protection for authors
from the UK and their successors in title.
• Deceased at the date of the sale and, at the date of the author’s death, the
author was a national of a state falling within one of the above.
Subject to this, and meeting the requirements in regulation 12 for a “resale”,
including that the sale price is not less than €1,000, the right applies to any works
in which copyright subsists (regulation 3(1)), defined as 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 or a
photograph (regulation 4(1)), and subject to the proviso that a copy of the work
will not be regarded as a work for Resale Right Regulation purposes unless
the copy if one of a limited number made by the author or under their authority
(regulation 4(2)).
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