The standpoint of GESTOR – sale price
According to Article 24 of Law No. 121/2000 Coll. a tradesman is obliged to inform Gestor about the actual purchase price. The term “sale price”, which is used on a tariff scale, is the identical term.
In the view of The Association for the Protection of Authorship, the sale price, here the purchase price too, is the price paid by a purchaser, here the sum he had been willing to pay and really paid with the view of becoming the possessor of a thing – an original wok of art he intended to obtain.
By using the expression “actual purchase price” in Article 24 of Law No.121/2000 Coll., it is emphasized that the tradesman notification duty applies to the actual purchase price – here the price paid by an acquirer disregarding how the price is formed and what items it consists of.
For an author, there cannot be a different sale price structure than the one in which the remuneration is calculated from what the purchaser has paid for the original work of art. At a retail in a store or in a gallery, all the expenses the tradesman had in connection with the retail are included in the purchase price. The tradesman will account for all these expenses to the one who ordered the retail, here the seller. At an auction retail or at sales, the situation cannot be different. The purchaser is not ordering any service he should pay anything to the auctioneer for. The important price for a purchaser is the one he has to pay for the original work of art, here the summary of what he has to pay to the one who is selling the original work of art, here to the tradesman or to the auctioneer, and only this price is the actual “ purchase price”. If legal regulations allow the declarer to become the owner of the auctioned work of art for a price different from the hammer price, here the price containing the hammer price as well as the additional fees he is obliged to pay to the auctioneer, the actual sale price as well as the purchase price is the summary of all the expenses the declarer spent on acquiring of the original work of art.
The essence of the right to remuneration from a resale of an original work of art is the participation of an author in the original work of art value increase during the time. Therefore it is fair that not only the purchaser of the original work of art but also its author himself profits from the work of art value increase. However, the fact that the remuneration is calculated on the basis of what the purchaser has paid to the merchant or to the one who acts for him corresponds to this substance of law.
If the auction fee is being concerned at the time when the assigned remuneration is being recovered, it concerns the percentage rate of the hammer price which is by some auctioneers required to be paid by the one who acquired the original work of art. The purchaser pays the hammer price as well as the above mentioned fee.
However, if in the auction conditions it is stated that the acquirer has to pay any auction fee, the purchaser counts with the fact that the painting will cost the amount of money it was hammered for plus the amount of money he is going to pay as an auction fee, here the price of the painting is the sum of these amounts which is the actual purchase price.
Therefore, it is evident that it does not matter how the price the acquirer pays is formed but the crucial fact is the object of authorial remuneration has to be the value of the thing, here the sum he is willing to pay for the original work of art. Any different interpretation could lead to such a situation where auctioneers would be increasing the auction fee at the expense of hammer price. Honest auctioneers who charge the auction costs to their client- the seller only would be disadvantaged in comparison with these who assign the cost to the acquirer. This very difference can be solved by the only correct conclusion – the crucial sale price is the total price paid for the original work of art.
In behalf of Gestor – The Association for the Protection of Authorship
JUDr. Antonín Janák