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 gap in Australian copyright law that did not provide artists with a financial benefit from the resale of their artworks. This Act was introduced to ensure that visual artists receive a royalty payment when their artworks are resold through commercial galleries, thereby recognising and compensating artists for the ongoing value of their work. The Act was enacted by the Commonwealth Parliament, aiming to provide a clear legal framework that supports the financial interests of visual artists, aligning with international practices where such resale royalties are more commonly recognised. The policy objective of the Act is to establish a system that ensures artists receive ongoing recognition and compensation for their work, encouraging and supporting the Australian arts sector. The Minister for Communications and the Arts, Mitch Fifield, appointed Copyright Agency Ltd as the collecting society under the Act, effective from 28 November 2018 to 27 November 2023. This appointment was made to facilitate the implementation of the Act, ensuring that the established mechanisms for collecting and distributing resale royalties to artists are effectively managed and overseen. The appointment signifies the government's commitment to supporting the arts community by providing a structured and reliable process for royalty payments, thereby enhancing the sustainability and viability of the Australian visual arts sector.

Scope and Application

The Resale Royalty Right for Visual Artists Act 2009 applies to visual artists within the Commonwealth of Australia and pertains specifically to their resale royalty rights. This Act enables visual artists to receive a percentage of the sale price whenever their artwork is resold by a gallery, dealer, or other authorised party, after the initial sale. The Act applies to eligible visual artists and their authorised heirs or beneficiaries following the artist's death. The geographic reach of this legislation is national, applying uniformly across the Commonwealth of Australia. Notably, the Act does not explicitly state any exclusions, exemptions, or specific thresholds for eligibility, leaving such determinations to be governed by the operational guidelines of the appointed collecting society. Subordinate instruments may further refine the application of the Act, but the primary terms and conditions are established within the Act itself. The appointment of Copyright Agency Ltd as the collecting society for a specified period underscores the legislative intent to facilitate the management and distribution of resale royalties to eligible artists.

Key Provisions

The Resale Royalty Right for Visual Artists Act 2009 (the Act) appoints a collecting society to administer the resale royalty rights for visual artists (s 35(2)(a)). In this instance, Copyright Agency Ltd (ACN 001 228 799) is appointed as the collecting society for a period of five years, starting from 28 November 2018 and ending on 27 November 2023. This appointment is pivotal as the collecting society will be responsible for managing the financial aspects of the resale royalties owed to artists, ensuring that these royalties are collected from galleries, dealers, and other relevant parties and subsequently distributed to the artists. Under the Act, the collecting society is tasked with specific obligations. These include collecting resale royalties from designated parties, such as galleries and dealers, who sell the original works of visual artists (s 36). The society must also ensure that these royalties are accurately accounted for and properly distributed to the artists who are entitled to them (s 37). Additionally, the collecting society must maintain transparent and accessible records of all transactions and distributions to facilitate accountability and compliance with the Act (s 38). Breach of any provisions within the Act can lead to significant consequences. For example, failure to properly collect or distribute royalties could result in civil penalties. The Act specifies that the collecting society can be fined up to $11,000 for each breach, highlighting the importance of strict adherence to the Act's requirements (s 41). Furthermore, any individual or entity that knowingly provides false or misleading information to the collecting society could face criminal penalties, including fines of up to $22,000 or imprisonment for up to two years, or both (s 42). These penalties underscore the serious nature of non-compliance and the need for accurate and honest dealings under the Act.