Development and Implementation of Resale Rights for Australian Indigenous Visual Artists

Background

The Resale royalty right comes from the Berne Convention for the Protection of Literary and Artistic works. ¹ Article 14ter of the Berne Convention for the Protection of Literary and Artistic works (1886) This right allows royalties to be paid to visual artists whenever their artworks are resold on the secondary market. The secondary market refers to works being sold a second or subsequent time after its first sale, most commonly through an auction house or an Indigenous art dealer or some galleries. The policy reason behind this right is due to the fact that many visual artists’ price of works increase during and after their lifetime so it is a way of providing income for the artists and their families. As you can imagine, Indigenous visual artists in Australia have had record commercial resales of their works and many had not seen any returns on their works. Many advocates in Australia such as the Australia Council for the Arts, National Association for Visual artists, Viscopy, Copyright Agency and the Arts Law Centre of Australia called for the implementation of the Resale Royalty law in Australia to provide future potential income for visual artists from the resale of their artworks.

Implementation of the Resale Royalty Act 2010

On 9 June 2010, the Resale Royalty Act in Australia commenced. The law stated that all Australian visual artists receive a 5% royalty when their artworks commercially resales over $1000 (AUD) for a second or subsequent sale. This right lasts for the lifetime of the artist plus 70 years after they pass away. This law is now enforceable in Australia, and all art market professionals such as galleries, dealers, wholesalers, and auction houses must pay this resale royalty to the administering agency of this law, the Copyright Agency. The Copyright Agency is the copyright collecting society or rights management organisation that collects and distributes copyright royalties for writers, publishers and visual artists.²www.copyright.com.au and www.resaleroyalty.org.au Two relevant websites for the Copyright Agency To be able to implement the new resale royalty right, it was really important to work with art market professionals, so the Copyright Agency established an art market professional advisory committee made up of gallerists, dealers and auction houses from across the country. This way any concerns or issues that arose from these stakeholders could be understood and worked through. In 2010-2011, there was also a visual artists advisory committee, who helped to spread the word through the visual arts community about this new important right for visual artists. The Australian government provided initial support for the implementation of the scheme which included a new information technology system, the advisory committee costs and the travel of the Indigenous engagement manager to remote, regional and urban communities to spread the word about the new law to Indigenous artists. The Copyright Agency takes a small administration fee of around 10-13% of the royalty to cover their costs. A review of the scheme was administered in 2013 whereby all stakeholders in the visual arts industry could comment on the Resale royalty scheme. Some stakeholders were still unhappy with the scheme, but most visual artists are happy to see the scheme is in effect, especially as many Indigenous artists are benefitting from this right.

Effect on Australian Indigenous Visual Artists

As of 2009, there were approximately 12,800 professional visual artists in Australia. Since 31 December 2019, $8 million (AUD) royalties were paid to Australian visual artists. Over 64% of the artists receiving royalties are Indigenous Australian artists and they have received 38% of the total royalties. 15 It was my role, as the Indigenous engagement manager, from 2011 until 2016, to travel around regional, remote and urban communities in Australia, explaining and registering Indigenous visual artists to the resale royalty scheme. I managed to also meet with the family of Albert Namatjira, Australia’s first internationally known Indigenous visual artist, who had never received any copyright royalties for his works as his copyright had been assigned to a publisher by the Northern Territory Government when he passed away in 1959.

After we had these family meetings, we signed up all the grand-children and great grandchildren of Mr. Namatjira to receive any resale royalties when Albert’s paintings resold commercially. This was a monumental step for the Namatjira descendants, and it was a great feeling to be able to give them some recognition and economic benefits for the resale of their grandfather’s great works. The Namatjira family was then inspired to fight for the copyright back for their grandfather’s estate and eventually, in October 2018, the copyright was assigned to the Namatjira family members which was a huge win! 16 Albert Namatjira lived in poverty and his beautiful watercolour works on paper are now worth over $20,000 (AUD) on the secondary market in Australia. So, it was a huge step for his family members to receive these resale royalties and they can now reproduce his works to receive copyright royalties.

The benefits that provide economic sustainability for many Indigenous visual artists are great. Many older Indigenous artists who may not be able to make as many works as younger artists see these benefits and when they pass away, it is ongoing income for their families as well. Many of the Indigenous artists who receive these royalties live in the Northern Territory, which has many cases of exploitation as unscrupulous dealers still take advantage of vulnerable artists who may not read or write English and speak many other Aboriginal languages before English as a fourth or fifth language. This new right for Indigenous visual artists means that if they sold their work for a low price in the first instance, if their artworks resale commercially over $1000 (AUD), then they will receive future royalties from their resales. The scheme has really achieved the outcome of the policy that it set out to do, which is to provide economic sustainability for visual artists who have low incomes and need this additional income.

Conclusion

The resale royalty law in Australia commenced in 2010 and is seen to be a huge win for, particularly Indigenous, visual artists. There was some initial negative media around the introduction of the scheme due to the drop in the Australian secondary market but other factors such as the global financial crisis and the changes to Australian superannuation laws for art investment affected the Australian visual arts market. The resale royalty has brought about more transparency in the visual arts industry and more artists that are aware of the sale of their artworks. The scheme has really achieved the key objective of benefitting Australian visual artists. It will be interesting to see if these rights are introduced in other countries as it has benefitted Indigenous visual artists as it intended to do.