Resale Royalty Right for Visual Artists Act 2009 - Appointment of the collecting society

Overview

The Resale Royalty Right for Visual Artists Act 2009 was enacted to address the issue of inadequate financial support for visual artists following the sale of their artworks. This Act introduces the concept of resale royalties, ensuring that artists receive a percentage of the resale price of their works each time they are sold. The Australian Parliament enacted this legislation to rectify the gap in the current system that fails to provide ongoing financial recognition and support to artists post the initial sale of their creations. The policy objective of this Act is to create a sustainable source of income for visual artists, thereby encouraging and sustaining the Australian arts sector. As authorised by the Minister for the Arts, George Brandis QC, under subsection 35(2) of the Act, the Copyright Agency Limited has been appointed as the collecting society. This appointment, effective for a six-month period starting on 28 May 2015, is a critical step towards implementing the Act's provisions, ensuring that the resale royalties are managed and distributed to artists in an efficient and transparent manner.

Scope and Application

The Resale Royalty Right for Visual Artists Act 2009 applies to visual artists, their heirs, and beneficiaries, providing them with a resale royalty right that entitles them to a percentage of the sale price of their original works of art whenever these works are resold on the secondary art market. The Act extends to the Commonwealth jurisdiction and is applicable to all original works of visual art, including paintings, sculptures, prints, drawings, photographs, and collages, created after the commencement of the Act. The Act applies to transactions involving the resale of these artworks, ensuring that artists receive compensation for the continued commercial exploitation of their works. The Act includes provisions for the appointment of a collecting society, such as the Copyright Agency Limited in this case, to administer and enforce the resale royalty rights, and it specifies the conditions under which this appointment can be made and extended. The Act does not explicitly state any exclusions or thresholds but allows for the making of subordinate instruments to provide further detail on the operation and administration of the collecting society.

Key Provisions

The Resale Royalty Right for Visual Artists Act 2009 (the "Act") establishes a framework for the protection and management of resale royalties for visual artists in Australia. Section 35(2) of the Act provides the Minister for the Arts with the authority to appoint a collecting society to administer the resale royalties on behalf of visual artists. In this instance, the Minister has appointed the Copyright Agency Limited as the collecting society for a period of six months starting on 28 May 2015 (section 35(2)). The collecting society is responsible for collecting, distributing, and accounting for the resale royalties due to visual artists for the resale of their original works of art. The Act imposes specific obligations on the collecting society, which include ensuring that the resale royalties are collected from relevant parties, such as art galleries, auction houses, and other dealers in original works of art (section 39). The collecting society must also keep accurate records of all transactions and payments made in relation to the resale royalties (section 40). Furthermore, the collecting society is required to distribute the collected royalties to the visual artists entitled to them, after deducting reasonable administrative expenses (section 41). Breaches of the Act can lead to significant consequences for the collecting society or any other party involved. For instance, section 47 imposes penalties for failure to comply with the Act, including the collection and distribution of royalties, or for failure to maintain proper records. The penalties for such breaches may include fines of up to $11,000 for a corporation and $2,200 for an individual (section 47(1)). Additionally, section 48 provides that any person who knowingly makes a false or misleading statement in relation to the administration of the resale royalties may be subject to a fine of up to $11,000 for a corporation and $2,200 for an individual. The Act also provides for the possibility of civil proceedings being taken by an aggrieved party, which may result in further financial penalties or court orders (section 52).