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Artist's Resale Rights Bill 2006

 

 

Schedule 1 — Amendments to the Copyright Act 1968

1  After Part XIA

Insert

Part XIB

248W  Interpretation

In this Part

“author” , in relation to a work, means the person who creates it;

“collecting society” has the meaning given in subsection 248AI (5);

“contract date” , in relation to a sale, means the time at which the contract of sale was made;

“qualifying body” has the meaning given in subsection 248AB (4);

“qualifying individual”  has the meaning given in subsection 248AE (3);

“resale” is to be construed in accordance with section 248AG;

“resale right” has the meaning given in section 248X (and, unless the context otherwise requires, includes a share in resale right);

“resale royalty” has the meaning given in section 248X;

 “sale price” has the meaning given in subsection 248X (4);

“work”  has the meaning given in section 248Y; and

“work of joint authorship” has the meaning given in subsection 248Z (4).

 

248X  Artist’s resale right

             (1)  The author of a work in which copyright subsists shall, in accordance with this Part, have a right (“resale right”) to a royalty on any sale of the work which is a resale subsequent to the first transfer of ownership by the author (“resale royalty”).

             (2)  Resale right in a work shall continue to subsist so long as copyright subsists in the work.

             (3)  The royalty shall be an amount based on the sale price which is calculated in accordance with the following table. The resale royalty payable on the sale of a work will be the sum of the following amounts, being percentage amounts of consecutive portions of the sale price.

 

 

Portion of the sale price:

Percentage

 

From 0 to $100,000

From $100,000.01 to $400,000

From $400,000.01 to $700,000

From $700,000.01 to $1,000,000

Exceeding $1,000,000

4%

3%

1%

0.5%

0.25%

             (4)  The total amount of royalty payable on the sale shall not exceed $25,000.

             (5)  The sale price is the price obtained for the sale, net of the tax payable on the sale.

             (6)  For the purposes of subsection (1), “transfer of ownership by the author” includes in particular -

                     (a)  transmission of the work from the author by testamentary disposition, or in accordance with the rules of intestate succession;

                     (b)  disposal of the work by the author’s personal representatives for the purposes of the administration of his estate; and

                     (c)  disposal of the work by an official receiver or a trustee in bankruptcy, for the purposes of the realisation of the author’s estate.

248Y  Works covered

             (1)  For the purposes of this Part, “work” means any work of graphic or plastic art such as a picture, a collage, a painting, a drawing, an engraving, a print, a lithograph, a sculpture, a tapestry, a ceramic, an item of glassware or a photograph.

             (2)  However, a copy of a work is not to be regarded as a work unless the copy is one of a limited number which have been made by the author or under his authority.

248Z  Joint authorship

             (1)  In the case of a work of joint authorship, the resale right shall belong to the authors as owners in common.

             (2)  The right shall be held in equal shares or in such other shares as may be agreed.

             (3)  Such an agreement must be in writing signed by or on behalf of each party to the agreement.

             (4)  “Work of joint authorship” means a work created by two or more authors.

248AA  Proof of authorship

             (1)  Where a name purporting to be that of the author appeared on the work when it was made, the person whose name appeared shall, unless the contrary is proved, be presumed to be the author of the work.

             (2)  In the case of a work alleged to be a work of joint authorship, subsection (1) applies in relation to each person alleged to be one of the authors.

248AB  Assignment etc.

             (1)  Resale right is not assignable.

             (2)  Any charge on a resale right is void.

             (3)  Subsection (1) does not prevent the transfer of a resale right which was transmitted to a qualifying body under section 248AD (or is deemed to have been so transmitted under section 248AL), provided that the transfer is to another qualifying body.

             (4)  A qualifying body is a body which —

                     (a)  is a charitable institution as recognised by the Australian Taxation Office; or ;

                     (b)  is a foreign charity, and has its central administration in a  state or a country designated in regulations made by the relevant Minister as states or countries with reciprocal rights for resale royalties.

             (5)  in subsection (4) “foreign charity” means a body which is established outside Australia for purposes similar to those for which a body within paragraph 4(a) may be established, and which is subject to similar rules regarding the distribution and application of its assets.

248AC  Waiver etc.

             (1)  A waiver of a resale right shall have no effect.

             (2)  An agreement to share or repay resale royalties shall be void.

             (3)  Subsection (2) does not affect any agreement made for the purposes of the management of resale right in accordance with section B.

248AD  Persons entitled on succession

             (1)  Subject to section 11, resale right in respect of a work is transmissible as personal or moveable property by testamentary disposition or in accordance with the rules of intestate succession; and it may be further so transmitted by any person into whose hands it passes.

             (2)  Resale right may be so transmitted only to —

                     (a)  a natural person; or

                     (b)  a qualifying body.

             (3)  Where a resale right is transmitted to more than one person, it shall belong to them as owners in common.

248AE  Requirements as to nationality etc.

             (1)  Resale right may be exercised in respect of a sale only by a person who, at the contract date, is —

                     (a)  a qualifying individual; or

                     (b)  a qualifying body.

             (2)  Resale right may be transmitted under section 248AD only by a person who, at the time of his death, is a qualifying individual.

             (3)  A qualifying individual is a natural person who is an Australian citizen or a national of a state or a country designated in regulations made by the relevant Minister as states or countries with reciprocal rights for resale royalties.

             (4)  Resale right may vest by operation of law in —

                     (a)  a personal representative of a deceased person; or

                     (b)  an official receiver or a trustee in bankruptcy.

                   and nothing in this regulation prevents a resale right from being exercised by any person acting in that capacity.

248AF  Trusts

                   Nothing in sections 248AB, 248AD or 248AE prevents a resale right from being—

                     (a)  held, and exercised in respect of a sale, by any person acting as trustee for the person who would otherwise be entitled to exercise the right (“the beneficiary”); or

                     (b)  transferred to such a trustee, or from the trustee to the beneficiary.

248AG  “Resale”

             (1)  The sale of a work may be regarded as a resale notwithstanding that the first transfer of ownership was not made for a money (or any) consideration.

             (2)  The sale of a work may be regarded as a resale only if the conditions mentioned in subsection (3) are satisfied in respect of that sale.

             (3)  The conditions are that —

                     (a)  the buyer or the seller, or (where the sale takes place through an agent) the agent of the buyer or the seller, is acting in the course of a business of dealing in works of art; and

                     (b)  the sale price is not less than $2000.

             (4)  The sale of a work is not to be regarded as a resale if —

                     (a)  the seller previously acquired the work directly from the author less than three years before the sale; and

                     (b)  the sale price does not exceed $20,000.

248AH  Liability to pay resale royalty

             (1)  The following shall be jointly and severally liable to pay the resale royalty due in respect of a sale —

                     (a)  the seller; and

                     (b)  the relevant person (within the meaning of subsection (2)).

             (2)  The relevant person is a person who satisfies the condition mentioned in paragraph 248AG (3)(a) and who is —

                     (a)  the agent of the seller; or

                     (b)  where there is no such agent, the agent of the buyer; or

                     (c)  where there are no such agents, the buyer.

             (3)  Liability shall arise on the completion of the sale; however, a person who is liable may withhold payment until evidence of entitlement to be paid the royalty is produced.

             (4)  Any liability to pay resale royalty in respect of a resale right which belongs to two or more persons as owners in common is discharged by a payment of the total amount of royalty to one of those persons.

248AI  Collective management

             (1)  Resale right may be exercised only through a collecting society.

             (2)  Where the holder of the resale right has not transferred the management of his right to a collecting society, the collecting society which manages copyright on behalf of artists shall be deemed to be mandated to manage his right.

             (3)  Where there is more than one such collecting society, the holder may choose which of them is so mandated.

             (4)  A holder to whom subsection (2) applies has the same rights and obligations in respect of the management of his right, as have holders who have transferred the management of their right to the collecting society concerned.

             (5)  For those purposes —

                     (a)  “collecting society” means a society or other organisation which has as its main object, or one of its main objects, the administration of rights on behalf of more than one artist; and

                     (b)  the management of resale right is the collection of resale royalty on behalf of the holder of the right in return for a fixed fee or a percentage of the royalty.

248AJ  Assistance to new and emerging artists

             (1)  Where the sale price of a work regarded as a resale exceeds $50000, ten percent of the resale royalty shall be paid by the collecting society into an Artists Support Fund administered by the Australia Council.

             (2)  The Australia Council shall disperse monies from the Artists Support Fund to new and emerging artists.

248AK  Right to information

             (1)  A holder of resale right in respect  of a sale, or a person acting on his behalf, shall have the right to obtain information by making a request under this regulation.

             (2)  Such a request —

                     (a)  may be made to any person who (in relation to that sale) satisfies the condition mentioned in subsection 248AG (3)(a); but

                     (b)  must be made within three years of the sale to which it relates.

             (3)  The information that may be so requested is any that may be necessary in order to secure payment of the resale royalty, and in particular to ascertain —

                     (a)  the amount of royalty that is due; and

                     (b)  where the royalty is not paid by the person to whom the request is made, the name and address of any person who is liable.

             (4)  The person to whom the request is made shall do everything within his power to supply the information requested within 90 days of the receipt of the request.

             (5)  If that information is not supplied within the period mentioned in paragraph (4), the person making the request may, in accordance with rules of court, apply to a local court for an order requiring the person to whom the request is made to supply the information.

             (6)  Information obtained under this regulation shall be treated as confidential.

248AL  Transitional provisions

             (1)  This Act —

                     (a)  does not apply to sales where the contract date preceded the commencement of the Act; but

                     (b)  applies notwithstanding that the work sold was made before that commencement.

             (2)  Where the author of a work (or a person to whom the resale right in that work is deemed to have been transmitted under this section) died before the commencement of this Act and was at the time of his death a qualifying individual—

                     (a)  if he was the owner of the copyright in the work immediately before his death, and on his death a qualifying person became beneficially entitled to that copyright (or to part of it), the resale right in the work shall be deemed to have been transmitted to that person;

                     (b)  if he was the owner of the work (but not the copyright in it) immediately before his death, and on his death a qualifying person became beneficially entitled to the work, the resale right shall be deemed to have been transmitted to that person;

                     (c)  otherwise, the resale right shall be deemed to have been transmitted to the qualifying persons who were beneficially entitled to the residue of his personal estate.

             (3)  Where the author of the work was one of a number of joint authors, the right deemed to have been transmitted by the author under this regulation is one of that number of equal shares in the resale right.

             (4)  Where a resale right is deemed to have been transmitted to more than one person under paragraph (2)(a), (b) or (c), the resale right shall be deemed to have been transmitted to them in equal shares as owners in common.

             (5)  In this section, “qualifying person” means a person to whom a resale right may be transmitted under subsections 248AD(2) and (3).

248AM  Review of resale right provisions

             (1)  The provisions of this Act should be reviewed within five years of the commencement of the Act.

             (2)  The review, to be initiated by the relevant Minister should examine -

                     (a)  who is benefiting from the resale royalties;

                     (b)  how efficiently the resale royalty arrangement is working; and

                     (c)  whether the resale royalty arrangement is undermining the art market.

             (3)  The review should be tabled in both Houses of Parliament within five years of the commencement of this Act

 

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