New copyright levy could impact the art world in Romania

On 13 November 2020 the Romanian Copyright Office (ORDA) released its Official Gazette, in which it published Decision 130 (3 November 2020), clarifying the rules on how public entities may present:

• graphic art;
• plastic art;
• applied art;
• photographic art;
• architecture; and
• public projection of digital art.

According to the Romanian Copyright Law, rights to the public communication of works (excluding music works and artistic performances in the audiovisual field) are subject to voluntary copyright collective management, which means that a collective management body can grant licences to users and collect a levy based on a mandate granted in this sense by the rights holder to that body. The law also provides for compulsory copyright collective management, whereby copyright levies for non-members of collective management bodies can be collected and managed for the use of certain types of work by these by virtue of express legal provisions in this sense.

The remuneration for the rights collectively managed are initiated and negotiated within the frame of the Romanian Copyright Law  (8/1996).

Decision 130 has introduced a proposal for remunerating rights holders for the use of their works through public communication and public projection. This proposal initiated by the Romanian Visual Arts Copyright Collecting Society (VISARTA) – an ORDA-controlled non-profit organisation has created a stir in Romania. VISARTA is a copyright collective management body, which operates in the fields of visual art, photography, architecture, maps and topography, geography and science. VISARTA has proposed that copyright levies be paid by users  of the abovementioned works (eg, galleries, auction houses and organisers of exhibitions) for public communication or projection. Further, VISARTA has defined the parties in the negotiation as:

• associative structures that represent users of the work at national level, namely:
  •  the Union of Plastic Artists from Romania;
  • the Association of the Photographers Artists from Romania;
  • the Union of Architects from Romania;
  • the Society of Art Collectors from Romania; and
  • the National Museum Network from Romania;
• major users, namely:
  •  ARCUB;
  • cultural centre EXPOARTE; and
  • National Art Museum of Romania; and
• associative structures that represent users of the work at local level, namely the Institute of Eco-museum Researches Gavrilă Simion Tulcea, Braila Museum ‘Carol I’.

If adopted, anyone intending to use these works through public communication or projection through the types of use to be determined by the methodology would have to obtain a prior non-exclusive licence from VISARTA and pay the appropriate copyright levies. Upon payment, VISARTA would then distribute the collected amount to its members in exchange for a commission of no more than 15%. ORDA would have no say in the legality and equity of the provisions of the proposed methodology. Instead, this is the result of the negotiations by the parties and, if they fail to reach an agreement, this could lead to mediation or court action.

The proposal has led to a number of heated discussions in Romania as users are concerned that it could make it impossible to exhibit certain types of work. In response, VISARTA has underlined that its only intention is to remunerate artists for their works, rather than censor them. Further, VISARTA has made it clear that the proposal would not affect museum budgets and there would be no risk of public displays closing as these amounts for their budget come from tickets, subscriptions, publicity, donations and sponsorships.

The effects of this methodology remain to be seen.