Resale Royalty Bill 2004
First Reading
Resale Royalty Bill 2004
First Reading
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2002-2003-2004 The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Resale Royalty Bill 2004
No. , 2004
(Senator Lundy)
A Bill for an Act to amend the Copyright Act 1968 to introduce a Resale Royalty Scheme for the visual arts, and for related purposes
Contents
1 Short title 1
2 Commencement 1
3 Object of Act 2
4 Schedule(s) 2
Schedule 1--Amendment of the Copyright Act 1968 3
A Bill for an Act to amend the Copyright Act 1968 to introduce a Resale Royalty Scheme for the visual arts, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the
Resale Royalty Act 2004.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent |
|
| 2. Division 1 of Schedule 1 | Six months after the day on which the Attorney-General declares a collection society under Division 2 of Schedule 1 |
|
3.
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Division 2 of Schedule 1 | The day on which this Act receives the Royal Assent |
|
| 4. Divisions 3 and 4 of Schedule 1 | Six months after the day on which the Attorney-General declares a collection society under Division 2 of Schedule 1 |
|
Note: This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.
The object of this Act is to provide for the payment of a resale royalty to visual artists if their work is resold thus ensuring they enjoy a direct financial benefit from the increasing value of their work.
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
1 After Part XII Insert:
For the purposes of this Part:
artist means the person who creates an artistic work.
artistic work means:
(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not; or
(b) works of artistic craftsmanship, whether or not mentioned in paragraph (a);
but does not include a circuit layout within the meaning of the Circuit Layout Act 1989.
Note: Works of artistic craftsmanship may include craftworks or copies of works of art made in limited numbers that have been numbered, signed or otherwise duly authorised by the artist and non-traditional forms of expression such as installations and multimedia works.
art market intermediary means an auction house, online auction, private gallery, agent or other art market professional who acts on behalf of the seller of an artistic work.
seller means the owner of an artistic work that is subject to resale.
This Part applies to:
(a) artistic work created before or after the Part commences; and
Back to Top (b) artists who, at the time of resale, are Australian nationals or have resided in Australia for a minimum of 2 years; and
(c) foreign artistic work sold in Australia where the artist is a national of a country that has a resale royalty scheme that provides a benefit to Australian artists.
(1) The right to a resale royalty shall exist for the duration of the copyright of the original
artistic work
. Note: The duration of copyright in an original artistic work subsists until the expiration of 50 years after the expiration of the calendar year in which the author of the work died (see subsection 33(2)).
(2) For the purpose of the right to a resale royalty, an artist must not transfer or waive his or her copyright in an artistic work.
(1) A resale royalty shall be payable on all acts of resale of artistic work that take place in Australia through an art market intermediary.
(2) The seller shall pay the artist or his or her legal personal representative 5 per cent of the total resale price.
(3) Section (1) does not apply to:
(a) the initial sale of the artistic work where the legal title of such work at the time of such initial sale is vested in the artist; or
(b) the resale of an artistic work that is less than the minimum total sale price as prescribed by regulations.
(1) The art market intermediary acting on behalf of the seller shall pay the resale royalty to the collecting society.
(2) If the art market intermediary fails to pay the collecting society an amount equal to 5 per cent of the total resale price of the artistic work, the collecting society may bring an action for damages within three years after the date of the sale or one year after the discovery of the sale, whichever is longer.
(3) The amount in subsection (2) may be recovered from the art market intermediary by the collecting society in the Federal Court of Australia or any other court of competent jurisdiction as a debt due to the society.
(1) Not later than 6 months after the day on which this Act receives the Royal Assent, the Attorney-General must, by notice in the
Gazette, declare a body named in the notice to be the collecting society.
(2) The Attorney-General shall not name more than one body in a declaration and shall not make a declaration while an earlier declaration is in force.
(3) The Attorney-General shall not declare a body to be the collecting society unless:
(a) it is a company limited by guarantee and incorporated under a law in force in a State or Territory relating to companies;
(b) all relevant copyright owners, or their agents, are entitled to become its members;
(c) its rules prohibit the payment of dividends to its members; and
(d) its rules contain such other provisions as are prescribed, being provisions necessary to ensure that the interests of the collecting society's members who are relevant copyright owners or their agents are protected adequately, including, in particular, provisions about:
(i) the payment of the administrative costs of the society out of amounts collected by it;
(ii) the distribution of amounts collected by it;
(iii) the holding on trust by the society of
Back to Top amounts for relevant copyright owners who are not its members; and
(iv) access to records of the society by its members.
The Attorney-General may, by notice in the
Gazette, revoke the declaration of a body as the collecting society if satisfied that the body:
(a) is not functioning adequately as the collecting society;
(b) is not acting in accordance with its rules or in the best interests of those of its members who are relevant copyright owners or their agents;
(c) has altered its rules so that they no longer comply with paragraphs 255(3)(c) and (d); or
(d) has refused or failed, without reasonable excuse, to comply with section 257 or 258.
(1) The collecting society shall, as soon as practicable after the end of each financial year, prepare a report of its operations during that financial year and send a copy of the report to the Attorney-General.
(2) The Attorney-General shall cause a copy of the report sent to the Attorney-General under subsection (1) to be laid before each House of the Parliament within 15 sitting days of that House after the receipt of the report by the Attorney-General.
(3) The society shall keep accounting records correctly recording and explaining the transactions of the society (including any transactions as trustee) and the financial position of the society.
(4) The accounting records shall be kept in such a manner as will enable true and fair accounts of the society to be prepared from time to time and those accounts to be conveniently and properly audited.
(5) The society shall, as soon as practicable after the end of each financial year, cause its accounts to be audited by an auditor who is not a member of the society, and shall send to the Attorney-General a copy of its accounts as so audited.
(6) The society shall give its members reasonable access to copies of all reports and audited accounts prepared under this section.
(7) This section does not affect any obligations of the society relating to the preparation and lodging of annual returns or accounts under the law under which it is incorporated.
The collecting society shall, within 21 days after it alters its rules, send a copy of the rules as so altered to the Attorney-General, together with a statement setting out the effect of the alteration and the reasons why it was made.
An art market intermediary
must retain information necessary to determine and calculate the amount of resale royalty.
For a period of three years after the resale of the artistic work, the collecting society or the artist or his or her legal personal representative may require the art market intermediary to provide information necessary to secure payment of royalties in respect of the resale.
(1) For the purpose of determining whether resale royalties are payable to the artist, the collecting society or the artist or his or her legal personal representative may notify the relevant art market intermediary that he or she wishes, on a day specified in the notice, being an ordinary working day of the art market intermediary specified in the notice, not earlier than 7 days after the day on which the notice is given, to inspect all relevant
Back to Top records held by the art market intermediary that relate to the sale of artistic works during a specified period.
(2) Subject to section 262, if a collecting society gives a notice, a person authorised in writing by the society may, during the ordinary working hours of the art market intermediary on the day specified in the notice, inspect the records to which the notice relates and, for that purpose, may enter the premises of the art market intermediary.
(3) An art market intermediary must take all reasonable precautions and exercise reasonable diligence to ensure that a person referred to in subsection (2), who attends the premises of the art market intermediary for the purpose of exercising the powers conferred by that subsection, is provided with all reasonable and necessary facilities and assistance for the effective exercise of those powers.
(4) An art market intermediary who contravenes subsection (3) is guilty of an offence punishable, on conviction, by a fine not exceeding 10 penalty units.
Note: A corporation may be fined up to 5 times the amount of the maximum fine. See subsection 4B(3) of the Crimes Act 1914.
(1) The chief executive officer (however described) of a collecting society must issue an identity card in the prescribed form to each person authorised by the society for the purposes of subsection 261(2). The identity card must contain a recent photograph of the authorised person.
(2) If an authorised person who attends or enters premises for the purpose of exercising powers conferred by subsection 261(2) fails to produce his or her identity card when asked to do so by a person apparently in charge of the premises, the authorised person must not enter or remain on the premises or exercise any other powers under subsection 261(2) at the premises.
(3) A person is guilty of an offence punishable on conviction by a fine not exceeding 1 penalty unit if:
(a) the person has been issued with an identity card; and
(b) the person stops being an authorised person; and
(c) the person does not, immediately after he or she stops being an authorised person, return the identity card to the relevant collecting society.
(4) An authorised person must carry his or her identity card at all times when exercising powers under subsection 261(2).
For the purposes of this Part, the regulations may prescribe countries that provide for a reciprocal resale royalty scheme that recognises Australian artists.