We whole-heartedly support the introduction of a right of resale for visual artists in Australia. Such a measure is long overdue – especially given that the doctrine was first theorized in 1893; and first implemented in France in 1920. We firmly believe that the Australian Parliament can fashion a right of resale, which can promote the principles of social justice, and ensure that there is a fair and equitable relationship between artists and the art market in Australia.

We would congratulate the Federal Government for its vision and determination in establishing a resale royalty right for visual artists in Australia. We are heartened that the legislative model is a robust one – unlike the tokenistic Californian resale royalty or the minimalist Irish regime. We believe that the Australian resale royalty right regime will be workable, and will have a positive impact upon artists, galleries, auction-houses, and Indigenous communities. We do not believe that the passage of the legislation should be unduly delayed, or postponed indefinitely.

Nonetheless, we are of the opinion that there are some imperfections in the Resale Royalty Right for Visual Artists Bill 2008 (Cth). We note that the Committee Chair Jennie George has said that ‘The Committee’s task will be to encourage the public scrutiny of the Bill prior to the resumption of the Second Reading Debate in the House’. She has said that the inquiry ‘will concentrate on the content and structure of the Bill with the view to ensuring that the proposed legislation will achieve the objectives as outlined in the Bill and the Minister’s Second reading speech’. We would make a number of recommendations in respect of the Resale Royalty Right for Visual Artists Bill 2008 (Cth) in order to improve its formal drafting, and help realise the over-arching objectives of the scheme. In the following submission, we would make a number of arguments in respect of the right of resale:

1. Despite emerging as a parochial response to the economic plight of the artist in late 19th Century France, the legal provenance of the droit de suite is founded firmly in an understanding of the application of copyright law to the fine arts.

2. The Australian Government should pass national legislation to implement Article 14ter of the Berne Convention.

3. The Resale Royalty Right for Visual Artists Bill 2008 (Cth) should not be subject to a residency test.

4. The Californian resale royalty model fails to provide a touchstone for legislative reform and should not be followed in Australia.

5. The US Copyright Office’s conclusion that there is no sufficient economic or copyright policy justification for a resale right should not be followed in Australia.

6. The European Union’s 2001 Directive embraces the conception of the droit de suite, casting the right as an ‘integral part of copyright’ and an ‘essential prerogative for authors’.

7. The codification of the artists’ resale right under European law has fostered a contemporary viability for the droit de suite.

8. Fierce opposition to the European Union’s 2001 Directive by anti-droit de suite countries resulted in the adoption of a minimalist resale royalty right scheme.

9. The introduction of the resale royalty right into the United Kingdom has had no adverse impact on the United Kingdom’s art market. The minimalist Ireland model for a right of resale should not be followed. The Committee should consider the option of taxation exemptions for certain earnings of writers, composers and artists in a separate inquiry.

10. We would note that there is a lack of harmonization between the proposed New Zealand right of resale and the proposed Australian right of resale – particularly in respect of the definitions; the duration of the right of resale; and its relationship to copyright law. 11. Ideally, we think that it would be preferable if there was a common right of resale in Australasia – with mirror legislation in Australia and New Zealand.

12. The resale royalty debate in Australia shows a confused local understanding of the theoretical foundations of the right.

13. A viable Australian droit de suite ‘translation’ must be governed by the principles of social justice, forged out of the relationship between an artist and the art market.

14. We would submit that the Resale Royalty Right for Visual Artists Bill 2008 (Cth) is supported by the intellectual property power and the external affairs power of the Federal Government under the Constitution.

15. We note that there are conflicted authorities as to whether the intellectual property power is subject to the proviso with respect to acquisition of property on just terms. We believe that section 11 of the Resale Royalty Right for Visual Artists Bill 2008 (Cth) is unnecessary in light of the ruling in Nintendo Co Ltd v Centronics Systems Pty Ltd. We note that, in any event, the Resale Royalty Right for Visual Artists Bill 2008 (Cth) could have a just terms compensation provision in the unlikely event that the decision in Australian Tape Manufacturers Association Ltd v Commonwealth is operative. The United States jurisprudence on the Takings Clause supports the interpretation of Robertson SC in respect of the Resale Royalty Right for Visual Artists Bill 2008 (Cth).

16. The right of resale legislation should require an ‘artwork’ to have ‘artistic quality’ – to ensure that utilitarian objects do not come within the inclusive definition of ‘artwork’ provided by the Resale Royalty Right for Visual Artists Bill 2008 (Cth). Industrial property – such as designs, patents, and trade marks – should be expressly excluded under section 9 of the Resale Royalty Right for Visual Artists Bill 2008 (Cth).

17. The right of resale legislation should stipulate that an ‘artwork’ must satisfy a high threshold of originality – requiring a creative spark.

18. The right of resale legislation should require an ‘artwork’ to have a ‘material form’.

19. The right of resale legislation should stipulate that an ‘auctioneer’ need not be a specialist art auctioneer.

20. The right of resale legislation should stipulate that a ‘person otherwise involved in the business or dealing in artworks’ includes a person whose involvement or dealings in artworks are not the dominant part of the person’s business.

21. The resale royalty right legislation should not apply to commercial resales of artwork below $1,000.

22. The resale royalty right legislation should impose a flat royalty rate of 5% on all commercial resales.

23. The resale royalty right legislation should not impose a cap on resale royalty payments.

24. The Government should conduct an extensive review of the market impact of the resale royalty right legislation following its implementation to determine whether or not the royalty rate is set at appropriate level.

25. The Resale Royalty Right for Visual Artists Bill 2008 (Cth) does not provide sufficient deterrents for unscrupulous art market participants.

26. The pecuniary penalties provided for in the Resale Royalty Right for Visual Artists Bill 2008 (Cth) should apply to a person who is concerned or takes part in the management of a body corporate liable to be prosecuted for a contravention of the Act as if the person committed the contravention personally.

27. The resale royalty right legislation should make it an offence not to pay the resale royalty on a commercial resale.

28. The right of resale legislation should not apply to literary, musical or dramatic works.

29. We contend that a single collecting society should not have a monopoly on the administration of a right of resale; there should scope for multiple collecting societies. Section 23 (1) of the Resale Royalty Right for Visual Artists Bill 2008 (Cth) should be retained. Division 5 of the Resale Royalty Right for Visual Artists Bill 2008 (Cth) should be amended to allow for individual collection and enforcement of the resale royalty.

30. We would also contend that the Resale Royalty Right for Visual Artists Bill 2008 (Cth) should ensure that the collecting society or societies for the right of resale are subject to high standards of transparency and accountability.

31. We would submit that there is a need for an independent, statutory-based ombudsman to provide proper oversight of the right of resale.

32. We would submit that the term of protection for the right of resale should be, at most, the life of the author plus 50 years – not life of the author plus 70 years.

33. We would agree that the right of resale should be a personal, inalienable right.

34. We would also agree that the right of resale should not be subject to waivers.

35. The Resale Royalty Right for Visual Artists Bill 2008 (Cth) should recognise the scope for communal ownership of Indigenous artistic works. The Resale Royalty Right for Visual Artists Bill 2008 (Cth) is to be commended for its innovative provisions dealing with the question of succession.

36. The Australian Government should establish a National Indigenous Cultural Authority to administer and manage the right of resale for Indigenous artists.

37. The Australian Government should enact sui generis legislation to comprehensively implement Article 31 (1) of the United Nations Declaration on the Rights of Indigenous Peoples 2007: ‘Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.’