So when the RRS was implemented in 2010, there was much gnashing of teeth from some quarters, and celebrating in others. The critics warned that the significant cost of compliance was an untenable impost on an industry already struggling in a dire economic climate, and a deterrent for buyers wary of future expenses on their art purchases. Market experts and analysts also cautioned that resale royalties, which are generated by secondary market sales, would flow only to those few Australian artists who had established a resale market. It was assumed that the vast majority of the royalties would flow to those successful artists and wealthy estates that had no real need of additional financial succour.
Despite these concerns, those who lobbied for the RRS based their arguments on the claim that the program would perform a valuable function by being a financial support mechanism for cash-strapped artists. Therefore, to measure the success of the program, it’s necessary to see whether or not the scheme is doing what it promised and providing meaningful support to artists, in particular those in the Indigenous art sector.
So, now that the dust has settled, and with the tenth birthday of the RRS approaching in 2020, it seemed to be a good time to look at the program. I approached this article in the hope that I could tell a feel-good story about the distribution of wealth to those who most need it in the Australian art world, and allay the concerns of the naysayers.
Given the number of years the scheme has been in operation, enough data has been generated to undertake a measured assessment of its success. My academic research into the art market is based on an examination of data, so I headed off to the Copyright Agency’s (CA) website, where I expected to find all the information I’d need. And that was where I hit a brick wall.
Firstly, the only data available on the site is generalised and filtered to communicate the message CA is obviously keen to promote – that it’s doing its job, and doing it well. Fair enough, that’s what all businesses do, right?
Except that an organisation that’s collecting monies on behalf of the government could be expected to be slightly more transparent. So I persisted. An enquiry to CA’s very helpful Head of Communications and Media Relations, Sue Nelson, resulted in the arrival of a nicely designed, single-page infographic. The problem with that? It contained only eight very carefully worded pieces of empirical information of limited use because, as on the website, the information had been carefully curated to communicate the message CA wants to promote. It did nothing to address the three, relatively straight-forward, pieces of information I requested, which were:
1: The royalties for each of the top fifty-ranked artists in terms of the total dollar value distributed, the number of resales that generated that amount, and whether or not those artists were Indigenous or non-Indigenous. Because I was only interested in the data, I did not need to know the names of those artists.
2: The breakdown of sectors that collect royalties; so, for example, the dollar value amount collected by the auction industry, and by art dealers.
3: Release of the long-anticipated report on the Resale Royalty Review conducted in 2013, which accumulated extensive and detailed submissions from people across the art industry but has not, as far as I can gather, been released publicly. (If any of you out there has ever laid eyes on the report, please let me know where and how you accessed a copy!)
After extensive to-ing and fro-ing via email with Sue Nelson, my query was batted on to the ‘Department’ because, to quote Ms Nelson, ‘the data of the scheme belongs to the Commonwealth.’ I was pleasantly surprised by the speed of the ‘Department’s’ response, but less so by its tenor:
As per Clause 48 of the Resale Royalty for Visual Artists Act 2009, the resale royalty information collected by Copyright Agency is collected for the purposes of administering the Scheme (See: https://www.legislation.gov.au/Details/C2009A00125). Only highly aggregated information on the Scheme’s performance can be shared with third parties, as per the information already provided.
I’m no expert in constitutional law, but as far as I can see, there’s nothing in Clause 48 of the act that would preclude the sharing of the very generalised information I requested. But I thought I’d take another stab at it, and responded:
…any reasonable legal interpretation of ‘highly aggregated’ would presumably permit the release of combined ‘aggregate’ figures for the top ten, top twenty, and top fifty artists, with generalised breakdowns according to which percentage of those groupings are male and female, and Indigenous versus non-Indigenous. Just general figures like these would be very useful to me, and should be very easy to compile.
As yet, I’ve had no response.
And if you intend to peruse the Resale Royalty website for yourself, don’t bother – after I’d been bothering the poor folk at CA for a few days, the site I’d been navigating was suddenly taken ‘down for maintenance’. I was informed it wouldn’t be back up and running until the time I’d stated as my deadline for this article. What an unfortunate, and remarkable, coincidence. As of writing, the site is still not live.
Fortunately, I had made enough notes before the site went down, and through an unrelated internet source I was able to access an archived version of the site. Not that it was much use to me - the information contained on the site is next to useless, tempered as it is by qualifiers and generalisations. So, for example, it’s stated that ‘most artists have received one or two royalty payments’. ‘Most’ artists, meaning who? ‘Most’ in Australia? Or ‘most’ who are eligible under the Scheme? And ‘most royalties are between $50 and $500.’ So, does that mean that ‘most’ artists have received royalties amounting to between ‘$50 and $500’? Although nobody would argue that it’s much nicer to receive ‘between $50 and $500’ than nothing at all, it hardly qualifies as the windfall that impoverished artists were hoping to receive, particularly when it’s understood that this figure is apparently spread across the nine years the scheme has been operating.
Yes, the inaccuracy and vagueness of this data, or the lack of it altogether, is frustrating. After a week of to-ing and fro-ing with CA, the only vaguely useful conclusion I managed to glean from the available figures is the following: Indigenous artists have been given 63% of the royalties by volume, but have received only 38% of the total royalties distributed in dollar terms. To flesh that figure out a bit, I calculated that in 2018/19 when $650,000 in royalties were distributed, Indigenous artists received a total of $247,000. It also means that 37% of the eligible artists, who are presumably non-Indigenous, received $403,000, or 62%, of the cash generated by the scheme. No matter how you interpret those figures, it’s clear that the RSS is perpetuating the same inequity that pervades the broader art marketplace.
The reason for this is that the auction market, which CA acknowledges is the source for the majority of the royalties it collects, is dominated by what’s known in economic terms as ‘superstars’, which is the handful of artists that dominate the lion’s share of auction sales by dollar value. So the same small number of artists whose work regularly appears at the major auction sales will be the same artists who are pocketing most of the royalty payments. The great majority of Australian artists will never, ever have a secondary market of any sort, much less one that will see their bank accounts flooded with royalty cash. As senior Australian artist and outspoken opponent of the RRS, John R. Walker, puts it: ‘If you’ve sold stuff-all, you can’t expect to make anything out of the resale market.’
I would love to give you more specifics about exactly what these figures are, but in the absence of cooperation from the collecting agency and the Department of Communications and the Arts, I, too, can do little more than peddle generalisations.
Back to the apparent reluctance of CA and the Department to publish any data that can be used to evaluate the program, I’m left with one question: if it’s such a good-news story, why are they being so coy about it? Why not bombard us with data that shows us exactly how much money has been flooding into remote Aboriginal communities and lining the pockets of impoverished artists – not the number of payments made, but the actual amounts? Sound-bites and quotes from supporters of the program are not convincing; data and figures are. And a lack of transparency just means that people start to wonder what it is that they’re trying to hide.
What I really wish is that the auction houses and dealers out there who have been collecting royalties over the past nine years would come together and consolidate the information they have on hand, because they have the data that CA and the Department are so reluctant to publish. In his submission to the 2013 Resale Royalty Review, Damian Hackett said that Deutscher and Hackett had collected $92,095 in thirteen royalty payments that benefited just eleven artists, four of whom were living, and none of whom were Indigenous. If that’s a snapshot of what might be shown by figures from the rest of the auction market, they could paint a very revealing picture, indeed.
