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Garrett, Peter --- "Resale Royalty Rights" [2006] IndigLawB 21; (2006) 6(18) Indigenous Law Bulletin 14


Resale Royalty Rights

by Peter Garrett MP

The painter John Olsen once remarked, ‘On the resale of art, everyone else makes money, but the artist is forgotten’.[1] For a decade the Howard Government has been fudging around the proposal that artists should be entitled to a small percentage of the sale price of their works when the original work is resold, known as a ‘resale royalty’.

The resale royalty right, which is called ‘droit de suite’, has been recognised for many years in French law.[2] The right is now being introduced throughout the European Union. According to a European Council directive, all member states must implement a resale royalty for living artists by 1 January 2006. For artists deceased within the last 70 years, a resale royalty for the benefit of heirs and estates, should be adopted by 1 January 2012.[3]

Australia does not have such a scheme. The recent spate of record sales in the Indigenous art market, estimated in 2004 to contribute over $100 million annually,[4] has been influential in the argument for the introduction of a resale royalty. Another argument relates to the financial rewards available to visual artists as their work is not as easily reproduced or distributed in comparison to those who write or create music.[5] There have been a number of calls for the introduction of a resale royalty over the years. In 2001, the Federal Minister for the Arts and the Centenary of Federation, the Hon Peter McGauran MP, appointed Mr Rupert Myer to conduct an Inquiry into the contemporary visual arts and crafts sector (known as ‘the Myer Inquiry’).[6] The resulting report, the Report of the Contemporary Visual Arts and Craft Inquiry (the ‘Myer Report’), concluded that a resale royalty scheme should be introduced.[7]

The idea of providing some ongoing value for artists in the sale proceeds of creative works has long been supported by the Labor party and the Australian Copyright Council.[8] As well, Indigenous arts organisations have identified the potential benefits to Indigenous artists that would flow from such a scheme.[9]

The introduction of a resale royalty was discussed as early as 1997 in the Aboriginal and Torres Strait Islander Commission (‘ATSIC’) National Aboriginal and Torres Strait Islander Cultural Industry Strategy.[10] The subsequent report by Terri Janke, Our Culture: Our Future, Report on Australian Indigenous Cultural and Intellectual Property Rights, also addressed the issue.[11]

Initially the Howard Government was willing to consider legislating for resale royalty and the results of the Myer Report increased pressure on the Government to act. In July 2004, the Government issued a discussion paper on resale royalty[12] in which a number of submissions – Arts Law Australia, Jumbunna Indigenous House of Learning, Association of Northern, Kimberley and Arnhem Aboriginal Artists, and the National Association for the Visual Arts – were in favour of such a scheme. Since then the Howard Government appears to have done very little other than delay making a decision.

In the last Parliamentary session my Labor colleague, Bob McMullan, the Member for Fraser and a former Shadow Minister for the Arts, gave notice of his intention to introduce a Private Members Bill, the Artist’s Resale Rights Bill 2006.[13] Under this Bill the artist’s resale right continues for as long as copyright exists.[14] The Bill proposes an amendment to the Copyright Act 1968 (Cth) and provides that:

The author of a work in which copyright subsists shall...have a right (‘resale right’) to a royalty on any sale of the work which is a resale subsequent to the first transfer of ownership by the author (‘resale royalty’).[15]

The Bill provides that a sliding scale apply to the sale of works, ranging from four per cent of the sale price of works priced up to $100,000 to one quarter of a per cent for works exceeding $1,000,000.[16] The definition of a ‘work’ includes a picture, print, lithograph, sculpture, and a ceramic piece.[17] The right is not assignable[18] and is transmissible in succession to the artist’s estate or heirs.[19] Additionally, the Bill proposed that where the price of a work exceeded $50,000, ten per cent would be collected and placed in a fund to support new and emerging artists.[20] Mr McMullan observed, ‘We complain about a culture of dependency, so when artists create real economic value we must create a framework for them to get the benefit.’[21]

That Indigenous artists, in particular, stand to benefit from the introduction of a resale royalty scheme is not in dispute. The recent example of a Johnny Warangkula Tjupurra painting, Water Dreaming at Kalipinyapa, which originally sold for $150 but was resold in July 2000 for $486,500[22] underscores what has become a common pattern in the Indigenous art market; but still at the time of writing there has been no action by the Federal Government. Why?

Those most opposed to a resale royalty scheme are the major art auction houses. They have lobbied against a resale royalty on a number of grounds including extra administration costs, no guarantees that artists will get a tangible benefit, that the scheme would only benefit a small proportion of artists and that the existing art market would be distorted. The lobbying campaign has been led by Mr Michael Kroger – a senior Liberal Party figure and former state president of the Party and a member of the advisory board of one of the leading auction houses.[23]

It is clear that the situation faced by artists in general, is that they often struggle to make a living. A 2003 report of artists’ working conditions undertaken for the Australia Council titled Don’t Give Up Your Day Job found that 50 per cent of artists earn less than $7,300 from their art in a year.[24] For Indigenous artists, many of whom live in impoverished communities, the situation is in many cases arguably worse and the options they have for supplementing their income are limited.[25]

Whilst relatively few artists may benefit from a resale royalty this does not mean that all artists should be denied this opportunity. While the legal evolution that has occurred to recognise an expanded framework of artists’ rights is extremely important, it is also important that those artists who have hitherto not been sufficiently recognised or rewarded for their work should be provided for. This is what a resale royalty scheme would do.

The Labor Party remains committed to resale royalty rights. As leading Indigenous artist Bronwyn Bancroft has said, ‘resale royalties are an intrinsic link to the improvement of the inherent rights of Australian artists to a fair income’.[26]

Peter Garrett MP is the Member for Kingsford Smith (NSW) and is Shadow Parliamentary Secretary for Reconciliation and the Arts.


[1] Geoff Maslen, ‘Agreement Reached on Copyright Cost’, The Age (Melbourne), 7 March 2002.

[2] Katrina Gunn, Parliament of Australia, Department of Parliamentary Services, Resale Royalty Rights: Possible Models for Australia, Research Note No 21, (2005-06) 1.

[3] Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the Resale Right for the Benefit of the Author of an Original Work of Art.

[4] Centre for Leisure Management Research, Annual Report 2004, Centre for Leisure Management Research, Deakin University <http://www.deakin.edu.au/buslaw/bowater/clmr/annual_report/clmr_ar_04.pdf> at 2 May 2006, 11.

[5] Gunn, above n 2, 1.

[6] Department of Communications, Information Technology and the Arts, Report of the Contemporary Visual Arts and Craft Inquiry, (2002) Exec Summary, 4 Department of Communications, Information Technology and the Arts <http://www.dcita.gov.au/arts/arts/cvac_inquiry/report> at 21 April 2006.

[7] Ibid, Recommendation 5.1, 14.

[8] ‘Resale Rights for Artists,’ State of the Arts, 11 March 2004 <http://www.stateart.com.au/sota/news/default.asp?fid=2461> at 2 May 2006.

[9] Ibid.

[10] Aboriginal and Torres Strait Islander Commission, ‘National Aboriginal and Torres Strait Islander Cultural Industry Strategy’ (1997).

[11] Terri Janke, ‘Our Culture: Our Future, Report on Australian Indigenous Cultural and Intellectual Property Rights’ (1997) <http://www.icip.lawnet.com.au/culture.pdf> at 2 May 2006.

[12] Department of Communications, Information Technology and the Arts, Proposed Resale Royalty Arrangement Discussion Paper (2004) <http:/www.dcita.gov.au/_data/assets/pdf_file/12024/Proposed_Resale_Royalty_Arrangement_Discussion_Paper.pdf> at 2 May 2006.

[13] The Artist’s Resale Rights Bill 2006 (Cth).

[14] The Artist’s Resale Rights Bill 2006 (Cth) s 248X (2).

[15] The Artist’s Resale Rights Bill 2006 (Cth) s 248X (1).

[16] The Artist’s Resale Rights Bill 2006 (Cth) s 248X (3).

[17] The Artist’s Resale Rights Bill 2006 (Cth) s 248Y (1).

[18] The Artist’s Resale Rights Bill 2006 (Cth) s 248AB (1).

[19] The Artist’s Resale Rights Bill 2006 (Cth) s 248 AL (2).

[20] The Artist’s Resale Rights Bill 2006 (Cth) s 248AJ.

[21] Geoff Maslen, ‘Agreement Reached on Copyright Cost,’ The Age (Melbourne) 7 March 2002 <http://www.theage.com.au/articles/2002/03/07/1015365722068.html> at 2 May 2006.

[22] Kate Lundy, Resale Royalty Bill 2004 <http://www.katelundy.com.au/Resalesecondread.htm> at 2 May 2006.

[23] Katrina Strickland, ‘Doing the Bidding for the Creator’ The Australian (Sydney), 29 August 2005 <http://www.artsnexus.com.au/phpBB2/viewtopic.php?p=36 &> at 2 May 2006.

[24] David Throsby and Virginia Hollister, Don’t Give Up Your Day Job: An Economic Study of Professional Artists in Australia (2003) The Australia Council <http:/www.ozco.gov.au/arts_resources/publications/don’t_give_up_your_day_job_report/files/1197/entire%20document.pdf> 2 May 2006, 45.

[25] Robynne Quiggin, ‘The Resale Royalty – Part 1(2004) 6(5) Indigenous Law Bulletin 4, 4.

[26] ‘Government to Consider Resale Royalty Right for Artists’ (2002) 11(3) Off the Air 15, 15.


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