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Copyright (Artist's Resale Right) Amendment Bill (Consistent) (Section 14) [2007] NZBORARp 57 (23 November 2007)
Last Updated: 7 January 2019
Copyright (Artist’s Resale Right) Amendment Bill
23 November 2007 Attorney-General LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
COPYRIGHT (ARTIST’S RESALE RIGHT) AMENDMENT BILL
- We
have considered the Copyright (Artist’s Resale Right) Amendment Bill (the
‘Bill’) (PCO 12774/3), for consistency
with the New Zealand Bill of
Rights Act 1990 (the ‘Bill of Rights Act’). We understand that this
Bill will be considered
by the Cabinet at its meeting on 3 December 2007.
- We
have concluded that the Bill appears to be consistent with the Bill of Rights
Act. In coming to this conclusion we considered whether
an issue arises with
section 14 of the Bill of Rights Act.
PURPOSE OF THE BILL
- The
Bill amends the Copyright Act 1994 to introduce an artist’s resale royalty
right. The resale right will entitle visual artists
to receive a royalty payment
each time an original art work is resold on the secondary art market.
- A
compulsory collective management scheme will manage the resale right by:
- creating a
liability for payment of the royalty under the Bill;
- empowering a
private copyright collection agency to collect the royalty; and,
- creating a right
to information concerning the resale.
- The
liability for payment is joint and several between the seller and one of the
following, as appropriate: the agent of the seller;
if the seller does not have
an agent, the agent of the buyer; or if there are no agents, the buyer.
CONSISTENCY WITH SECTION 14 OF THE BILL OF RIGHTS ACT
- Section
14 of the Bill of Rights Act provides:
"Everyone has the right to freedom of expression, including the
freedom to seek, receive, and impart information and opinions of any
kind in any
form."
- The
right has been interpreted as including the right not to be compelled to say
certain things or to provide certain information.[1] We also note that freedom
of
expression should be defined widely and questions of limits on
the right should generally be determined pursuant to section 5 of the
Bill of
Rights Act.
- Clause
204M of the Bill creates a right to information for the collection agency. The
information must be necessary for the purpose
of securing payment of the resale
royalty that is due. In addition the collection agency may request, if the
request for information
is not made to the correct person, the name and address
of a person who is liable for resale royalty payment.
- Clause
204N creates an obligation that a person to whom a request is made under 204M
must make his or her best endeavour to supply
the information within 60 working
days of receiving the request. The collection agency may apply to a court of
competent jurisdiction
for an order requiring the person to whom the request is
made to supply the information.
- Information
about who purchased, and the price paid for, a particular artistic work is
factual information and is not normally expressive.
This factual information,
however, may create an inference as to the opinion of the buyer concerning the
quality and worth of the
work and possibly support for the message contained in
the art work.
- In
the Canadian Supreme Court case of Slaight communications inc. v.
Davidson[2] the Court considered
whether compelling an employer to provide a reference letter containing on its
face uncontested factual information
infringed the freedom of expression under
the Canadian Charter of Rights and Freedoms. The majority held that an order
directing
the employer to give the employee a letter containing factual
information could be considered, because of the inferences that could
be drawn
from the letter, a prima facie limit on the employer’s freedom of
expression.
- We
note that the idea that there may be expressive content associated with the
resale of a good is unique to artistic works and more
particularly to
controversial works of art. We further acknowledge that the possibility that the
requirement to provide information
about who purchased, and the price paid for,
an artistic work would cause a chilling effect on dissemination of controversial
art
is remote.
- But
the possibility, however small, does exist and for this reason we have
considered whether, if the provisions place a limit on
freedom of expression
they are justifiable in terms of section 5 of the Bill of Rights Act.
- Where
a provision is found to be prima facie inconsistent with a particular
right or freedom, it may nevertheless be found to be consistent with the Bill of
Rights Act if the
inconsistency is considered to be a reasonable limit that is
justifiable under section 5 of that Act. The inquiry under section 5
is
essentially two-fold:[3]
- does the
provision serve an important and significant objective; and
- is there a
rational and proportionate connection between that objective and the
provision?
- The
resale royalty right for visual artists is essential for visual artists to
realise an economic return on their work similar to
the copyright benefits
available to writers and composers. The provision looks to those liable to pay
the royalty to provide information.
The information is necessary for the scheme
to work. In our view, this is a significant and important objective.
- The
Bill appropriately balances the concerns about compelled expression and possible
chilling effect with the economic rights of the
artist. The information to be
provided by those liable to pay the royalty is limited to factual information
necessary to find out
who will, in fact, pay the amount and how much. The Bill
also provides that this information must be treated as confidential. Moreover,
without this information, it would be impossible to determine when the artist
would receive the royalty and the amount of the royalty.
- We
consider the provision for compelled information to be rationally connected and
proportionate to the need to ensure that visual
artists have meaningful
economic
rights in their artistic work after the work’s first
sale.
CONCLUSION
- Based
on the analysis set out above, we have concluded that the Bill appears to be
consistent with the Bill of Rights Act.
Jeff Orr
Chief Legal Advisor Office of Legal Counsel
|
Stuart Beresford
Acting Manager
Bill of Rights/Human Rights Team
|
1 Butlers The New Zealand Bill of Rights Act: A
Commentary (Wellington: 2005) at 13.27. 2 [1989] 1
S.C.R. 1038.
3 See Moonen v Film Literature Board of Review
[1999] NZCA 329; [2000] 2 NZLR 9 and R v Oakes [1986] 1
S.C.R. 103.
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the
Copyright (Artist’s Resale Right) Amendment Bill. It should not be used or
acted upon for any other purpose.
The advice does no more than assess whether
the Bill complies with the minimum guarantees contained in the New Zealand Bill
of Rights
Act. The release of this advice should not be taken to indicate that
the Attorney-General agrees with all aspects of it, nor does
its release
constitute a general waiver of legal professional privilege in respect of this
or any other matter. Whilst care has been
taken to ensure that this document is
an accurate reproduction of the advice provided to the Attorney-General, neither
the Ministry
of Justice nor the Crown Law Office accepts any liability for any
errors or omissions.
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