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Monday, 7 September 2009
Page: 8780


Dr STONE (5:02 PM) —I rise to speak on the Resale Royalty Right for Visual Artists Bill 2008. This bill establishes a scheme that allows visual artists to claim a share of the proceeds of each successive commercial resale of the original artwork. It also maintains the artist’s interests in the ongoing sale of works for 70 years after the death of the artist.

This scheme, which was an election commitment by the Labor Party more than 18 months ago as part of the Labor election platform, has taken an extraordinary time in incubation, and sadly the minister still has not got a great outcome. Other countries in Europe and the UK have developed such schemes. It does not seem, however, that the Labor government has selected the best elements of these other international schemes or learned from their mistakes. For example, the bill will only apply to the resale of artworks acquired after the bill comes into effect. The works will attract a five per cent royalty, with no maximum cap. The scheme applies from the second sale of eligible art over $1,000 or more in value, including GST but excluding any other charges. The government plans to establish a collection organisation; however, individual artists can choose not to use this organisation or not to receive a royalty at all.

Unfortunately, the bill limits the scheme to artworks only sold a second time after the effective date of implementation of the bill. Real auction data provided by Viscopy, or the Visual Arts Copyright Collecting Agency, for the period between 1998 and 2008 shows that only six per cent of artworks were sold a second time. This would provide an income of $460,000 for artists over the 10-year period. This is in stark contrast to the government’s exaggerated projected income figure of some $34 million for artists.

The payment of the resale royalty is further complicated as it lists four possibilities of persons who are jointly and severally liable to pay the royalty. Allowing artists to collect the resale royalty right themselves may reduce the capacity of the government’s collection organisation to sustain its operations, particularly if Australia’s top artists choose to collect their own royalties, leaving only the more difficult to locate—for example, impoverished Indigenous artists—with the collection agency as part of their responsibility.

The growth in the value of the Australian art market, particularly the rapid rise in value of Indigenous art, and the growing tendency of international art trading markets to operate royalty schemes mean that Australia should have a much better, more comprehensively thought through scheme. I am very concerned that our most vulnerable and exploited Indigenous artists may not receive royalties owed through this scheme. Traditional Indigenous artists living in remote places often do not have a will or final testament that identifies which family members or others they wish to receive future royalties after their death. This means that the benefit of the 70 years royalty flow is likely to be lost to the family or the next of kin of the people that the artist chose to be the beneficiaries.

The coalition funded a program to send legal officers into remote communities to help artists write their wills and place those wills in appropriate storage. This was a great success and greatly appreciated by the artist communities. In the 2008-09 budget the Rudd Labor government chose not to renew funding for this Artists in the Black program. This travelling legal service also provided legal advice and support as well as the preparation of the wills and testaments for Indigenous communities, so it is sadly missed and should be reinstated. This Labor government is not serious about Indigenous artists, it would seem. Through Labor’s defunding and neglect, many Indigenous artists will continue to be exploited. Sadly, anecdotal evidence is that the exploitation is growing even worse, not diminishing.

The coalition had a very strong record of investment in the Indigenous arts sector and we are very concerned that the carpetbagging and exploitation of Indigenous artists will not be diminished in any way, it would seem, by any Labor strategy or policy. In 2006 the then Minister for the Arts and Sport, Senator the Hon. Rod Kemp, asked the Senate to investigate the Indigenous arts sector to identify future opportunities and threats in the sector and what assistance governments could provide to assist and protect Indigenous artists’ rights. There was widespread discussion within the industry around many remote communities about the difficult situation of remoteness, the exploitation and the unhelpful practices that were found throughout, in particular, Northern and Western Australia. The Senate was asked to investigate these types of issues. The report was finalised in June 2007 and the coalition gave unqualified support to the vast majority of the recommendations.

A number of those recommendations have not seen the light of day since. They have been overlooked by the Labor government of today, but they still deserve special attention as they will enhance the outcomes for Indigenous artists into this century. In particular, I would like to refer to recommendations 17 and 18 of that inquiry. They referred to the setting up of an Indigenous art commercial and government code of conduct. Many commercial organisations representing the interests of Indigenous artists already have a code of ethics or conduct in place which members of those bodies are expected to follow. This is to ensure they act with fairness, honesty and integrity and they know precisely what is expected of them.

This bill does not directly protect the intellectual property rights of Indigenous artists’ work. However, there is some protection under the Copyright Act and the Designs Act 2003. The Designs Act provides for particular designs to be registered, while the Copyright Act covers original artwork put into a material form. However, there is no rule allowing the copying of artwork without permission if there are a certain number of changes made. This leaves Indigenous artists exposed to the possible reproduction and imitation of their style. We have all been to the tourist shops and seen the tea towels, the bush caps, the blankets, and wondered whether the Indigenous artists who put together those amazing designs have ever been acknowledged, much less paid.

Indigenous notions of intellectual culture and property are sometimes different to non-indigenous notions of personal intellectual property. Indigenous cultural and intellectual property refers to the rights of Indigenous Australians to their heritage. Indigenous cultural and intellectual property rights entrust the ownership of material representing Indigenous heritage to the particular Indigenous group it emanates from, emphasising the maintenance of the culture from generation to generation. This, of course, makes it different from the artist working alone in mainstream Australian society.

The Arts Law Centre of Australia has identified some of the major concerns in relation to Indigenous cultural intellectual property, including the lack of copyright protection for art and craft works produced by Indigenous communities. While Indigenous artists are employed to produce artistic works, there is a question about who owns the copyright: is this person an employer or the Indigenous artist? The government has had the opportunity, through this bill, to recognise Indigenous cultural ownership of visual arts but has failed to address this complex question.

Authenticity of art works is another issue that has not been addressed in this bill, yet the bill is to assign some royalty payments to a particular individual. Some art works by Indigenous communities are the result of communal participation, perhaps with one community member signing the work as the artist on behalf of all of the others. This will become an issue when it comes to the sale and the resale of artwork as prospective buyers may be concerned about the legitimacy of the artists’ role in the work and, indeed, who should receive ongoing royalty payments. This situation also raises the issue of style copying and the infringement of Indigenous cultural intellectual property rights.

Australia’s Indigenous art is one of the great cultural assets of our nation. It is unique not only in style but also in its importance in maintaining the history and continuity of Indigenous culture. The majority of international tourists visiting the Northern Territory, Western Australia and Northern Queensland seek out some Indigenous art to purchase, or they seek to see a performance of music or dance. Over two-thirds of domestic tourists who visit those same places, go to Indigenous art centres or experience the unique Indigenous culture in some form. In the Northern Territory, the Indigenous art industry is estimated to produce $28 million in sales. Australia’s Indigenous art sector has grown exponentially since it was first studied in the 1980s. In 1979-80, the industry was estimated to be worth some $2.5 million. Ten years later, its estimated worth is $18.5 million—more than a sevenfold increase. By 2002, it was estimated that the value of the industry was somewhere between $100 million and $300 million.

Although the value of the industry has increased, there is no evidence that the number of artists has increased or their individual wealth or wellbeing has benefited from the popularity of their work or the prices paid after they sell their product, often wholesale. In 2006, the main bodies representing Indigenous artists indicated they served about 6,000 Indigenous artists in over 80 remote Indigenous communities. Indigenous artists continue to be the most disadvantaged artists in Australia. The genesis of Senate recommendation 4 was to ensure appropriate art centre facilities across remote Australia to enable Indigenous artists to have a place to store art and supplies, to stretch canvasses, to display their completed works and to allow those places to become centres of learning and great cultural pride. The inquiry found that art centres in remote communities provided not only important safe places for women—typically, women are the majority of Indigenous artists—but also an important community reference point when the art centres were functioning well. They assisted visitors and tourists to locate artists and the work they wished to sell.

I have to say that this bill is disappointing in that it does very little to acknowledge the difficulties of paying resale royalties to Indigenous artists or to groups of Indigenous artists in communities who together produce and own the work. It is an unfortunate situation that an opportunity has been lost, while Indigenous artists themselves appear to be even more exploited as the days go by. I am afraid to say that Indigenous arts, like arts in general, have been forgotten by the Rudd Labor government. We have to hope for better things from future governments. The coalition remains committed to ensuring that artists and the arts sector are strong and treated in a fair and generous way.