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the Act
This page highlights features of the Resale Royalty
Right for Visual Artists Act 2009 (Cth), ie the Australian
droit de suite law.
It covers -
The
Act [here]
has been promoted as providing for a statutory resale
royalty right for Australian visual artists. The right
will be inalienable and endure for the life of the artist
plus 70 years, ie the default
term of copyright in Australia. It will entitle a
visual
artist to a royalty payment on the sale price of any commercial
resale - above a $1,000 threshhold - of that creator's
original works of art. The resale royalty payable is a
flat 5% of the sale price on the commercial resale of
an artwork.
The expectation is that the scheme will allow visual artists
to share in the commercialisation of their work in the
secondary art market, although as noted in the preceding
page of this profile leading artists (or their estates)
will in practice gain the most revenue. The Act has been
characterised as benefitting -
visual
artists who derive their main creative income from the
initial sale of original works. These artists do not
have the same range of opportunities as other creators
such as writers and composers to earn money through
licensing reproductions, public performances or broadcasting
their work.
coverage
The Act covers mainland Australia, Tasmania and the external
territories, aiming to "avoid the possible situation
in which Australian art market professionals shift their
operations to external territories to evade the scheme".
The royalty right under the Act is only enforceable in
an Australian federal court or the relevant court of a
State or Territory.
The royalty scheme will apply to Australian citizens and
permanent residents, with foreign nationals covered on
a reciprocal basis.
The
Act, like most Australian legislation, does not have retrospective
effect. It covers resales made after the legislation takes
effect. (Works, however, might have been created long
before the legislation.)
Liability to pay resale royalty on the commercial resale
of an artwork arises at the time of the commercial resale
of that work.
The royalty right is absolutely inalienable (eg through
sale, assignment, bankruptcy or insolvency), a provision
is to prevent artists being pressured into assigning their
right in order to secure a slightly higher primary sale
price or to use the royalty right as security for a loan.
Any income from the right would not be available for distribution
amongst creditors in the case of bankruptcy or insolvency.
The royalty right cannot be waived (s34), a provision
"to prevent artists being exploited and pressured
into waiving or otherwise dealing detrimentally in their
right to receive resale royalty". Note however, that
rights owners are not compelled to exercise their
rights (s23), a provision that some critics have interpreted
as equivalent to a waiver.
resale
The resale royalty right is defined as the right to receive
a 'resale royalty' on the commercial resale of an artwork.
That work is defined as an original work of 'graphic or
plastic art' created either by an artist or artists or
under the authority of the artist or artists (thus including
prints and sculptures made under the direction of an artist
using a production team at a bronze foundry.
The non-exhaustive list of works in the Act reflects examples
identified in Directive 2001/84/EC of the European Parliament
and of the Council (27 September 2001) on the resale right
for the benefit of the author of an original work of art.
The Act also covers original visual arts or craft such
as: batik, weaving, fine art jewellery, wood carving,
digital and video art, and multiple originals produced
in a limited edition authorised by the artist (such as
an etching or a bronze sculpture.)
The definition of an artwork in relation to resale excludes
architecture (including a drawing, plan or model for a
building) and the original manuscripts of writers and
composers. The Act emphasizes earning in relation to originality
and thus excludes items such as posters, mass-produced
photographic or other prints, films and industrial design.
There is no resale royalty right on a commercial resale
of an artwork where the sale price is less than $1,000.
(Where the sale price is paid in foreign currency, the
threshold amount is calculated using the exchange rate
applicable at the time of the commercial resale). The
figure includes GST but excludes buyers premiums and other
charges imposed by galleries or auction houses, which
as noted elsewhere on this site can add 20 or even 30%
to the cost.
The Government indicated that use of a threshold on the
minimum resale price before a royalty is imposed will
"reduce administrative costs associated with making
multiple, very small payments to artists ... ensuring
that benefits are spread across a greater number of artists"
in a balance with "administrative efficiency as relates
to both the collecting agency and the art market professionals
required to comply with the scheme".
The Act gives jurisdiction to the Federal Court - and
to State and Territory Supreme Courts under Jurisdiction
of Courts (Cross-Vesting) Act 1987 (Cth) s 4 - regarding
enforcement of the resale royalty right on the commercial
resale of an artwork, determination of who is the holder/s
of a resale royalty right, enforcement of the payment
of a share of the resale royalty, recovery of a resale
royalty wrongly paid by the collecting society, enforcement
of civil penalty provisions and other matters arising
under the Act. The Federal Magistrates Court also has
jurisdiction.
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