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droit de suite in Australia
This page considers debate about droit de suite
(a royalty for visual artists on the resale of artworks)
in Australia.
It covers -
introduction
The Resale Royalty Right for Visual Artists Act 2009
(Cth), in effect from 9 June 2010, establishes a national
droit de suite regime in Australia. It is complemented
by the Tax Laws Amendment (Resale Royalty for Visual
Artists) Act 2009 (Cth).
The legislation follows announcement in 2008 by the federal
Minister for the Arts that Australia would establish a
national droit scheme, commenting that -
By enshrining in law the right of artists and their
heirs to receive a benefit from the secondary sale of
their work, we are building an environment where the
talent and creativity of visual artists receives greater
reward.
The
scheme would feature a mandatory 5% royalty on resale
of artworks sold for $1,000 or more. The royalty would
apply to works by living artists and for a period of 70
years after an artist's death. Payments will not be made
to artists until the second resale takes place and will
be restricted to work sold for $1,000 or more.
The government announced allocation of $1.5 million to
fund start-up and initial costs for a specialist collective
rights agency. Copyright Agency Ltd (CAL) was appointed
in April 2010 to administer the scheme, following passage
of the legislation in December 2009.
Calls for adoption of droit proposals had been contentious,
with community debate flaring sporadically - particularly
at election time - since arguments were presented in the
February 1989 Australian Copyright Council (ACC)
report on The Art Resale Royalty & Its Implications
For Australia. That document was commissioned by the
Australia Council for the Arts, examining whether a resale
royalty scheme was appropriate for Australia and the shape
of such a scheme, including changes to the Copyright Act.
The report supported the droit in principle
as
a mechanism for encouraging creative endeavour by rewarding
visual artists with a share in the increasing value
of their creative product.
It recommended that
there should be informed public debate together with
an education program to confirm the proposition that
the scheme is considered important and has public support
in principle.
It
also called for examination of the best way to introduce
a scheme, in particular through the establishment of a
visual artists copyright collecting society (similar to
those for authors and composers).
It recommended amendment to the Copyright Act 1968
rather than specific legislation and suggested that the
scheme might encompass -
-
imposition of the royalty on public sales (ie at auctions
or commercial venues such as galleries)
- a
fixed percentage royalty calculated on the full sale
price above a specified threshold
- a
right operative over the full term of the copyright,
inalienable and effective in relation to sales from
the time of the legislation irrespective of the date
of creation of the work of art;
- royalty
collection and distribution operated through a visual
artists' collective rights administration body (since
established as Viscopy)
- civil
remedies available to the artists regarding non-observance
of the scheme
- coverage
of Australian citizens and residents, with foreign nationals
covered on the basis of reciprocity.
Successive
governments had, however, chosen not to adopt recommendations
in that report.
a history of recommendations
and laments
The droit has been referred to in successive Copyright
Law Review Committee reports about potential changes to
the Copyright Act, generally on the basis that it was
an interesting idea needing full and careful consideration
(ie not by us, not now).
In the past five years it has resurfaced amid the somewhat
indifferent response to the wide-ranging Our Culture,
Our Future report
on Indigenous intellectual property issues for the Aboriginal
& Torres Strait Islander Commission (ATSIC),
the 2003 Don’t Give Up Your Day Job: an economic
study of professional artists in Australia report
by David Throsby & Virginia Hollister under Australia
Council auspices and the 2002 report
by the federal government Contemporary Visual Arts &
Craft Inquiry (Myer Report).
Myer for example commented that "a substantial amount
of benefit would be enjoyed by artists" if the droit
was introduced in Australia (given estimates that royalties
on 1999-2000 sales would be around $6.75 million).
That is consistent with claims in the Don't Give Up
Your Day Job report
that 50% of artists earn under $7,300 per year from their
art. Some economic rationalists have, of course, questioned
whether some self-identified artists can realistically
expect support for what may be a vocation rather than
an occupation. Others have noted that not all artists
(or their heirs) would receive substantial benefits.
Responses to the Myer recommendations were mixed. One
dealer lamented that
The
art market is volatile and can be fragile. The introduction
of a Resale Royalty would fail to provide the necessary
safety net of a "superannuation scheme" and
would almost certainly impact negatively on the incomes
of younger artists
Other
dealers embraced the idea, welcoming introduction of the
droit, accepting it as "inevitable"
or commenting that they independently donated a percentage
of auction sales to indigenous organisations such as the
Aboriginal Benefits Foundation (albeit presumably claiming
a tax deduction).
proposals
In 2004 the ALP proposed
a Resale Royalty Scheme, implemented through amendment
of the Copyright Act, involving a
resale
right of 5 per cent payable on all acts of resale of
artistic work that take place in Australia through an
art market intermediary.
The
scheme would be administered by a new copyright collecting
society, apparently in tandem with the struggling Viscopy.
That is of interest, given past comments that Viscopy
has not been able to achieve sufficient scale for true
viability.
The federal government's 2004 Proposed Resale Royalty
Arrangement discussion paper (PDF)
sought public comment on various proposals. It is of particular
interest for attempts to model benefits to discrete groups
of artists, including emerging indigenous artists and
established 'modern masters'.
The paper identified objectives of an Australian droit
scheme as being to
- provide
income support for artists
- ensue
that artists share in the increased value of their work
- "enshrine
a perceived right of visual artists"
-
redress a perceived inequity between "the rights
of visual artists and other creative artists" (non-creative
artists presumably do not warrant support)
-
provide additional incentives for artists to continue
practising
- empower
artists by recognising their contribution to the economic
and cultural life of the nation.
In May 2006 the federal government announced that
The
Government carefully considered the issue of a possible
resale royalty scheme and concluded that a resale royalty
right would not provide a meaningful source of income
for the majority of Australia's artists.
This initiative will instead provide targeted support
to individual artists. It will allow a broad range of
artists to gain valuable business skills to help them
successfully develop and manage their careers. These
skills will empower artists to put effective strategies
in place to obtain greater income from their work. ...
Research shows that resale royalty schemes bring most
benefit to successful late career artists and the estates
of deceased artists.
It would bring little advantage to the majority of Australian
artists whose work rarely reaches the secondary art
market and would also adversely affect commercial galleries,
art dealers, auction houses and investors.
One of the main arguments put forward in support of
resale royalty was that Indigenous artists are particularly
disadvantaged by the secondary sales market. Research
shows, however, that a resale royalty scheme would not
end disadvantage for Indigenous artists.
The
decision reflected lack of a 'champion' within the federal
Arts department and the marginality of advocacy organisations
such as NAVA and Viscopy.
the Act
Features of the Resale Royalty Right for Visual Artists
Act 2009 (Cth) [here]
are discussed in detail in the following page of this
profile.
studies
Recent academic criticism of Australian proposals includes
Jon Stanford's 2002 Economic Analysis of the Droit
de Suite - The Artist's Resale Royalty (PDF)
and 2004 paper
Droit de Suite Down Under: Should Australia Introduce
a Resale Royalties Scheme for Visual Artists? by
Emily Hudson & Sophie Waller. An overview is provided
in Paul Lewis' 'The Resale Royalty and Australian Visual
Artists: Painting The Full Picture' in 8 Media &
Arts Law Review (2003) [PDF].
A perspective on the market is provided by Annette Van
den Bosch's The Australian Art World: Aesthetics in
a Global Market (St Leonards: Allen & Unwin 2004)
and Patricia Anderson's Art & Australia: Debates,
Dollars & Delusions (Darlinghurst: Pandora Press
2005).
prices
As of May 2007 the highest prices for Australian indigenous
art are reported to be -
-
Clifford Possum Tjapaltjarri (1933-2001) - Warlugulong
(1977), $2.4m in 2007
- Emily
Kngwarreye (1910-1996) - Earth's Creation (1995),
$1,056,000 in 2007
-
Rover Thomas (1926-1998) - All that Big Rain Coming
from Top Side (1991), $778,750 in 2001
- Rover
Thomas - Bugaltji, Lissadell Country (1986),
$660,000 in 2006
- Johnny
Warangkula (1925-2001) - Water Dreaming at Kalipinypa
(1971), $486,500 in 2000
- Rover
Thomas - Lake Gregory (Buragu) in the Wet Season
(1988), $474,500 in 2003
-
Emily Kngwarreye - Spring Celebration (1991),
$463,000 in 2003
-
Clifford Possum Tjapaltjarri - Emu Corroboree Man
(1994), $411,750 in 2005
-
Lin Onus (1948-1996) - Water Lilies and Evening
Reflections, Dingo Springs, $396,000 in 2006
- Rover
Thomas - Wurlangawarrin - Salt Pan (1988),
$394,000 in 2002
- Rover
Thomas - Yillimbiddi Country (1988), $376,750
in 2003.
Record
prices for work by other Australian artists include -
- Eugene
von Guerard (1811-1901) - View of Geelong (1856),
$3.9m in 2006
- Brett
Whiteley (1939-1992) - The Olgas For Ernest Giles
(1985), $3.48m in 2007
- John
Brack (1920-1999) - The Old Time (1969), $3.36m
in 2007
- Brett
Whiteley - Opera House (1982), $2.8m in 2007
- John
Brack - The Bar (1954), $3.12m in 2006
- Brett
Whiteley - Frangipani & Hummingbird (1988),
$2.04m in 2006
- Frederick
McCubbin (1855-1917) - Bush Idyll (1893), $2.3m
in 2002
-
Fred Williams (1927-1982) - Water Pond in a Landscape
II (1966), $1.44m in 2006
- Fred
Williams - Upwey Landscape (1965), $1.8m in
2006
- John
Glover (1767-1849) - Mt Wellington & Hobart Town
(1833), $1.7m in 2001
-
John Russell (1858-1930) - Belle Ile en Mer
(1904), $1.56m in 2008
- Sydney
Nolan (1917-1992) - Death of Constable Scanlon
(1954), $1.32m in 2000
- John
Olsen (1928- ) - Love in the Kitchen (1969),
$1.09m in 2006
- Charles
Blackman (1928- ) - Alice's Journey (1957),
$1.02m in 2006
- Ian
Fairweather (1891-1974) - Gekko (1961), $840,000
in 2007
International
prices are here. An
indication of the wealth of artists at the time of death
is here.
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