Resale Royalty Right for Visual Artists Act 2009 - Determination of provisions to be contained in collecting society rules

Overview

The Resale Royalty Right for Visual Artists Act 2009 was enacted to establish a resale royalty scheme that entitles visual artists to receive a 5 per cent royalty each time one of their works is resold on the secondary art market for $1,000 or more. This Act addresses the gap in the Australian art market by providing financial compensation to artists beyond the initial sale of their work, ensuring that they benefit from the increased value of their art as it is resold. The Resale Royalty Right for Visual Artists Act 2009 was enacted by the Parliament of Australia with the policy objective of protecting the interests of visual artists by ensuring they receive fair compensation for the ongoing commercial exploitation of their work. Pursuant to the Act, the Minister for Environment Protection, Heritage and the Arts has issued the Determination under paragraph 35(4)(d) to outline specific provisions that must be included in the rules of the collecting society appointed to administer the resale royalty scheme. This Determination ensures that the collecting society's rules adequately protect the interests of resale royalty right holders, including provisions for the collection and distribution of royalties, the holding of amounts on trust for non-member right holders, access to records, and a complaint notification and handling procedure.

Scope and Application

The Resale Royalty Right for Visual Artists Act 2009 applies to visual artists who are entitled to a 5 per cent royalty each time their artwork is resold on the secondary art market for $1000 or more. This Act also mandates the appointment of a collecting society to administer the resale royalty scheme, ensuring that the interests of visual artists are protected. The collecting society must include specific provisions in its rules, determined by the Minister under paragraph 35(4)(d) of the Act, which outline the collection and distribution of resale royalties, the holding of these amounts on trust for non-member artists, and provide mechanisms for artists and their agents to access the society's records and handle complaints. These provisions are designed to safeguard the rights of all resale royalty holders, irrespective of their membership status with the collecting society. The Act operates at a national level, and its provisions are enforced through subordinate legislation, ensuring that the collecting society adheres to the established rules for the protection of artists’ interests.

Key Provisions

The key provisions of this legislation, as specified under the Resale Royalty Right for Visual Artists Act 2009, mandate that the collecting society's rules must include certain measures to ensure the protection of visual artists' interests (sections 35(4)(d)). Specifically, the collecting society must be responsible for the collection of resale royalties (section (a)), distribution of collected royalties and any accrued interest to the rightful holders (section (b)), holding the collected royalties on trust for those holders who are not members of the society or who are yet to be identified (section (c)), and allowing access to the society’s records by the holders of resale royalty rights or their agents (section (d)). Additionally, the rules must establish a complaint notification and handling procedure for dealing with member complaints (section (e)). These provisions ensure that the collecting society operates in a manner that adequately protects the interests of all visual artists with resale royalty rights, regardless of their membership status. The obligations imposed by this legislation on the collecting society are comprehensive and designed to safeguard the financial and informational rights of visual artists. The collecting society must collect the prescribed resale royalties on behalf of the artists, ensuring that each time an artist’s work is resold for $1000 or more, a 5% royalty is collected (section (a)). It must then distribute these collected royalties, along with any interest earned, directly to the rightful holders of the resale royalty rights (section (b)). In instances where the rightful holders are not members of the society or have not yet been identified, the collecting society must hold these royalties on trust until they can be correctly allocated (section (c)). To ensure transparency and accountability, the collecting society must allow access to its records by the artists or their agents (section (d)). Finally, the rules must include a formal complaint notification and handling procedure, providing a clear and accessible process for members to raise and resolve any grievances (section (e)). Failure to comply with the provisions of this legislation could result in significant legal and financial consequences. Although the specific penalties for non-compliance are not detailed within the explanatory statement, breaches of these rules could potentially lead to legal actions against the collecting society for failing to adequately protect the rights of resale royalty holders. This could include claims for damages or injunctive relief by affected artists. Furthermore, the Minister is not permitted to appoint a body to be the collecting society unless its rules contain the provisions determined under section 35(4)(d), implying that non-compliance with these rules could lead to the refusal of appointment or revocation of the society's status. The overarching purpose of these provisions is to ensure that the collecting society operates in a manner that upholds the rights and interests of visual artists with resale royalty rights.