Dana Wortley (SA, Australian Labor Party) Share this | Link to this | Hansard source

Late last year the Resale Royalty Right for Visual Artists Bill 2009 was passed by the Senate. It was a bill in which I had taken a particular interest. The act had a lengthy genesis. It was not until 1978 that Australia formally entered into the Berne convention of 1971, under which the works of visual and literary artists are protected around the globe. One hundred and sixty-four countries, among them the members of the European Union, signed the Berne convention. More than 50 of these have implemented variants of a resale royalty scheme. Finally we have a response to that convention—a response that fulfils our election commitment, protects the interests of visual artists and makes sure that they receive proper entitlements upon the commercial resale of their works.

The scheme will see visual artists share for the first time in the commercialisation of their work in the secondary art market. Visual artists who garner their income from the sale of original works do not have the same opportunities to license reproductions, performances and the like—as, for example, composers or writers. This is the essence of the act. It addresses the imbalance between visual artists and those who can reap financial gain from multiple reiterations of the works they have created, just as composers, musicians, authors and playwrights do.

It is part of being human that we cherish meaningful images and objects. We all have favourite artists, even if their work may be beyond our individual reach. Some people buy for investment, some purely for the pleasure of owning a beautiful piece of work and some for the acutely personal resonance that a work of art may hold. We decorate our homes and our workplaces with pictures, prints, photographs, fabrics, ceramics and other representations of places or things that have significance for us. But what of the creators of those works? The conception and realisation of the works of art we hold dear represent their inspiration.

My mother is an artist who, after primary school, went on to attend the Girls Central Art School on North Terrace in Adelaide, where the daily lesson focus was on the arts. Students from this school and other schools like this around Australia, and many self-taught artists without any formal education, went on to make a living from their works, although for many it was one that had to be supported by additional income from other sources.

I have already mentioned the paradox that visual artist works are commercialised by their sale and resale rather than through exploitation of the rights available to copyright owners, whose works are commercially reproduced. As well, while the artists’ work may appreciate in value, sometimes to an extraordinary degree over a career, a visual artist did not benefit in the same way as those who later sell the work on at a premium. I highlight the work particularly of Aboriginal and Torres Strait Islander artists, whose work was initially often sold for relatively little but is now collected—in a number of cases worldwide—and is extremely valuable. For example, a painting by the late Clifford Possum Japaltjarrisold in 1977 for $1,200. A dealer bought it for $36,000 in 1996. The National Gallery of Australia bought it for $2.4 million in 2007. The artist benefited only from the initial sale and not from the 1996 transaction. His estate, after his death in 2002, benefited not at all. We know that some artists have been exploited by unprincipled dealers.

This act redresses the imbalances, as I have said, and protects the interests of all visual artists. It is they, after all, who communicate in a very particular way our people and our country to ourselves and to the world. The resale royalty will exist for the creator’s lifetime, plus an additional 70 years. It is by virtue of this provision that the artist’s estate may be entitled to the royalty. For the resale royalty right to be activated there must be a commercial resale. This is fulfilled if there is a transfer of ownership from one person to another after the first transfer of ownership for monetary consideration and with the involvement of an art market professional. Private sales are not included. The first transfer may be a sale, gift or other transaction where monetary consideration is not an element, such as exchange or inheritance. But the second transfer must attract monetary consideration.

The scheme applies to resales of work first acquired after the commencement of the legislation. Works made before the commencement of the legislation and works by artists who have died are captured by the provisions. However, works acquired before the legislation commences will not attract the royalty until the second resale has been transacted during the period after the scheme came into effect. The resale royalty only applies to works resold commercially for a price of more than $1,000 or as prescribed by the regulations. The royalty will be payable at the rate of five per cent of the sale price on the commercial resale of the work. There is no upper limit to the royalty.

The right is inalienable, except where allowed by the provisions related to the succession test, so it cannot be assigned nor can it be waived. The holder of the right may, however, instruct the collecting society not to enforce the right. Civil penalties will apply for the contravention of a pecuniary penalty provision. The establishment of the collecting society which will manage the scheme and collect and distribute royalties is underway. The Resale Royalty Scheme is simple, it is easy to understand, and it recognises the importance of our visual artists’ contribution to our community and to our identity as Australians. The Resale Royalty Right for Visual Artists Act 2009 represents a long-awaited acknowledgement of the value of the works of our artists, and I could not let it pass without putting on the record my support.