Resale Royalty Right Down Under?


The Commonwealth Government (DCITA) has published a discussion paper for the introduction of an artist's resale royalty right in Australia.

The idea is that, when the owner of an artwork (such as a Sydney Nolan original) sells it, a percentage of the sale price must be paid to the artist.

The Berne Convention does make rather rudimentary provision for this idea in art. 14ter (droit de suite), but it leaves the adoption of such a scheme completely optional. So there can't be any risk of WTO sanctions for failing to implement a TRIPS obligation.

The discussion paper seeks input on pretty much every possible aspect of what such a scheme might be, including whether it should be legislated as part of copyright or left entirely voluntary. At the next level down, it doesn't provide much guidance about what should be covered. The Berne Convention applies to "works of art" and manuscripts. The latter don't seem to be contemplated at all by the discussion paper and "works of art" is an wholly alien and undefined concept in our copyright law. The discussion paper itself refers to the "arts market" and "visual arts" and even "craft practitioners" (which suggests works of artistic craftsmanship on recent case law including yacht hulls and first run Coogi fabrics, but not "rabbit eared" corkscrews).

Criticising any proposal to increase the income of starving, underpaid artists is probably akin to harboring negative thoughts about motherhood and apple pie and positively un-Australian. According to the discussion paper, however, such deserving souls would largely miss out. The discussion paper claims that in France, the birthplace of this fine idea, some 7 artists (or their heirs) receive 70% of the payments. Under the 10 different scenarios canvassed in the discussion paper, the top 5 Australian artists would receive between only 24 - 39% of the take. Only some 240 of the estimated 6,000 Indigenous artists might receive a payment depending on what scenario were adopted and, once again depending on the scenario, up to 25% of those might receive less than $100 a year.

Many of the scenarios contemplated involve thresholds of sales value that would need to be reached before the "royalty" kicked in, thereby reducing even these meagre numbers. Also, they entail sliding scales of royalties (i.e. as sales value increases, the royalty rate decreases) or even caps on payments, which seems a rather instrumentalist and arbitrary way of enabling authors to "participate in" resale values.

All of these possible returns are of course predicated on the assumption that vendors continue to sell in Australia rather than fleeing to auction houses in New York or on the internet.

One might have thought that the more inexperienced artists might gain far more practical benefit from training schemes and assistance in negotiating with auction houses and the opportunistic speculators.

While submissions from the public were invited by 13 August, the election campaign has intervened so you may still make your views known (if you're quick).

Posted: Wednesday - 06 October, 2004 at 12:23 PM         |

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