Many of us didn’t notice it – what with the entire Liberal Party melting down over the emissions trading scheme – but last week, the Australian Senate passed the Resale Royalty Right for Visual Artists Bill 2009. This marks the passage into legislation of an Australia droit de suite style law, giving artists a 5% royalty on the second and subsequent resale of their artworks.
How will it work? Much like other copyright royalties, the government will tender out the collection of the royalty payment to a government-sanctioned monopoly called a collection agency. Australia, like many other industrialised nations, has several of these that variously collect rents on economic activities related to copyrighted material – for instance the playing of music on radio and television, or the reproduction of newspaper articles by media monitoring businesses. Most industry insiders expect the existing visual royalties collection agency Viscopy to get the gig, but ther is a possibility other agencies could tender, like the publishing agency Copyright Agency Ltd.
Who pays? In the main, it will be auction houses, art dealers and commercial galleries. However, the legislation broadly covers basically any 2nd or subsequent resale of an artwork, so this could potentially expand to cover all sorts of interesting areas, like big businesses liquidating their corporate art collections or trustees of deceased estates. On the other hand, since most of these kinds of sales are generally sold at auction or through a dealer anyway, the likelihood is that these larger vendors will be the main payers of the new royalty fee.
What’s covered by the new legislation? A broad and very interesting range of material, defined in section 7 of the bill:
Section 7(2): Works of visual art include, but are not limited to, the following:
(a) artists’ books;
(f) digital artworks;
(i) fine art jewellery;
(m) multimedia artworks;
(t) video artworks;
(v) any other things prescribed by the regulations.
That’s a lot of stuff. It also covers certain digital media artworks in a way that could eventually prove quite controversial. For instance, video and digital artworks aren’t really defined in any detailed way. Is a “digital artwork” an artefact containing the digital artwork? Is it the source code? Is it any copy or instance of the digital artwork? If I put my digital artwork on eBay and sell it, retail, to all comers, for $1001, can I generate an endless stream of $50 royalty payments?
The history of copyright laws in other areas suggests that case law tends to expand the scope of the legal domain of copyright ownership, generally pushed by zealous litigation from copyright agencies. In Australia, for instance, we’ve seen a big push recently by music publishers to gain access to revenue streams from nightclubs on the rather flimsy (but none-the-less legally accepted) argument that nightclub patrons are attending in order to hear music – a craven but successful cash-grab that I attacked in this 2007 article for Arts Hub. Emboldened by their win in the nightclubs decision, music publishers are now going after gyms and fitness centres.
What sort of areas could copyright law push into in the wake of this bill? I suspect there will be plenty of work for aspiring copyright lawyers in coming years.
Elsewhere: the Australian Copyright Council has a good primer on the issues at hand. It points out that many fewer artworks are likely to generate royalties than the government thinks, because resale rates of Australian artworks are comparatively low in what remains a thinly-traded market.