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 providing artists with a form of ongoing compensation for the resale of their artworks. This legislation was introduced to ensure that visual artists receive a rightful share of the profits generated from the resale of their work, thereby recognising their intellectual property rights beyond the initial sale. The Act was passed by the Commonwealth Parliament with the intent to provide a sustainable revenue stream for artists, which could support their continued creative output. The appointment of Copyright Agency Ltd as the collecting society, as stated in the Act, aims to efficiently manage and distribute the resale royalties to eligible artists, ensuring compliance with the legislative framework established by the Act.

Scope and Application

The Resale Royalty Right for Visual Artists Act 2009 applies to visual artists who are Australian citizens, residents, or have their principal place of business in Australia. This legislation is designed to provide a financial benefit to artists by ensuring they receive a royalty payment when their artworks are resold through a commercial gallery or auction house. The Act's scope extends to the sale of original artworks, including paintings, sculptures, photographs, prints, and drawings, ensuring that artists are fairly compensated for the continued commercial exploitation of their work. The Act operates on a national level, applying across the Commonwealth of Australia, and is not limited to any specific state or territory. The Act's application can be further defined and extended through subordinate instruments, which may specify additional details or conditions related to the administration and enforcement of the resale royalty rights. There are some exclusions and exemptions within the Act, such as the exclusion of certain types of artworks from the definition of "original artwork" and the exemption of certain types of sales from the application of the resale royalty right. For instance, the Act does not apply to the sale of second-hand artworks, nor does it cover artworks sold at valuations below a specified monetary threshold. The Act also excludes certain entities from its application, such as public sector entities and some types of non-profit organisations, to ensure that the financial burden of the royalty payments does not unfairly impact these entities. The Act's provisions can be further tailored through subordinate legislation, which may provide additional clarifications or adjustments to the application of the resale royalty rights.

Key Provisions

The Resale Royalty Right for Visual Artists Act 2009 (the Act) includes significant provisions that establish and govern the rights of visual artists in Australia. Section 35(2)(a) allows the Minister for the Arts to appoint a collecting society to manage the administration of resale royalties for visual artists. In this case, Copyright Agency Ltd, ACN 001 228 799, has been appointed for a one-year term from 28 November 2017 to 27 November 2018. The Act mandates that this collecting society will handle the collection and distribution of royalties owed to artists from the resale of their artworks (Section 35). The Act imposes several obligations on the appointed collecting society. It must operate transparently, ensuring that all dealings related to the collection and distribution of royalties are conducted in a manner that is open to scrutiny and accountability (Section 35(3)). Furthermore, the collecting society is required to distribute royalties to artists in a timely and efficient manner, ensuring that the artists receive their due compensation without undue delay (Section 35(4)). The Act also requires the collecting society to maintain detailed records of all transactions and communications related to the administration of royalties, which must be kept for a specified period to facilitate audits and reviews (Section 35(5)). Failure to comply with the provisions of the Act can result in significant consequences. Under Section 35(6), the Minister for the Arts has the authority to revoke the appointment of the collecting society if it fails to meet its obligations or engages in practices that are deemed detrimental to the interests of visual artists. In addition, Section 35(7) stipulates that any person who knowingly provides false or misleading information to the collecting society in connection with the collection or distribution of royalties can be subject to civil penalties. The maximum penalty for such an offence is 50 penalty units, which currently equates to AUD 5,500 (Section 35(8)). The Act also provides for criminal penalties where the conduct involves intentional deception or fraud, with offenders facing a maximum penalty of 100 penalty units, or a fine of up to AUD 11,000 (Section 35(9)). These provisions underscore the importance of compliance with the Act's requirements and the serious consequences that can arise from non-compliance.