Desart

John Oster
Executive Officer
Desart: The Association of Central Australian Aboriginal Art & Craft Centres

Desart response to draft Australian Indigenous Art Commercial Code of Conduct

Background

This document is a response to a call for public comment concerning the draft Australian Indigenous Art Commercial Code of Conduct issued by the Australia Council in December 2008.

Desart represents some 3,000 Aboriginal artists working in 45 Art Centres across central Australia. This document has been developed following a detailed examination of the draft code and wide distribution of the code across our region.

We make some general comments about the draft and then examine a number of code clauses in detail. We also mention a number of matters not currently included in the code

General comments

1. The background to the development of the code and the issues contained in it are not well understood and there is some understandable resistance to change – particularly this kind of strategic change that will cause organisations to examine the way they operate and require them to respond to an additional administrative burden. Tellingly, there was a more positive response to the code when the content was explained in detail and the many benefits of the code became more apparent. This leads us to highlight the need for detailed and extensive education and promotion of the code.

2. We are in general agreement that the code should be voluntary at this stage. While we acknowledge that many will argue for an immediate mandatory code and that a voluntary code may seem to lack teeth we are mindful of the following:

1. The Senate Inquiry established a context for a voluntary code that we think needs to be worked through;
2. The ACCC is unlikely to move towards a mandatory code before a trial of a voluntary code
3. We believe a voluntary code will draw a significant number of willing signatories who may form an important advocacy group with the potential to influence the language and scope of a subsequent mandatory code should it be required in the future.

3.  Agreements - We believe there is considerable confusion about the number and type of  agreements required in the code. There is reference to an artwork agreement (6), agent agreements (8.2), art gallery agreements (8.3) and an artwork proposal (8.4). The number of agreements needs to be simplified both in their application and in the administrative burden placed on signatories.

Detailed response to code sections

5. Not engage in unconscionable conduct

We have argued consistently that there should be provision in the code to discourage payments in kind – either in this section or elsewhere as appropriate. We believe that there is considerable mischief involved where food, vehicles, blankets and other goods are exchanged for art. There is no way of keeping watch over benefits received by an artist in these transactions. The value of goods can only be estimated and is rarely well founded. We acknowledge that many Aboriginal artists are used to receiving goods in kind but there are elements of unconscionable conduct involved here. Artists are often encouraged to accept goods of lesser value because they suffer the duress of poverty.

We believe that mandatory monetary payments is a measure consistent with the purpose of the code which requires transparency in the sale of artwork.

6. Requirement to have an artwork agreement

Oral agreements - The provision to allow oral agreements is problematic. The agreements required in the code contain many elements; exclusivity, delivery, commissions, IP arrangements, delegation of responsibilities etc. The notion that these can be well understood and sustained as oral agreements is difficult to accept. Written agreements should be mandatory. At the same time we need to acknowledge the difficulties involved in written agreements for Art Centres operating in remote areas with several hundred artists and attendant problems connected with itinerancy, literacy and numeracy. This means agreements need the facility to operate as short and simple templates. (refer General Comments, above)

8. Before entering into artwork agreement

8 (1) All artwork agreements
This section needs to be more generic. A number of the items here do not reflect current practice in our region. For example, (e) timeframes for finishing artwork suggests that artists are operating in a paradigm where a designated number of artworks are being produced. It is more likely here that an artist will enter into an agreement for a number of years covering all works whenever they are produced. We believe this can be handled with a more generic reference to artist obligations as they might apply in each workplace.

8 (3) Additional requirements – art gallery agreements
Generally we wonder if this might be called an Exhibition Agreement. In the code we have artwork agreements, art gallery agreements and artwork proposals. Some confusion might be mitigated by using names that don’t sound like each other. For consistency with the definitions this should refer to commercial art galleries.

8 (4) (b)  Use “provide” instead of “prove”. We also believe there should not be a mandatory requirement to provide a copy of the code. Rather it should be provided on request.

8 (4) (d)  This clause seems to require an unfair open ended obligation on the part of the gallery. They are required to provide an opportunity for an artist to obtain further advice. This might be construed as an obligation to pay for legal advice over an extended period.

9. Cooling-off period

9 (3) This clause caused us to consider the following scenario. An artist is provided with a second hand motor vehicle by a dealer on the understanding that the artist will deliver 5 artworks over the next few months. The artworks are not to the satisfaction of the dealer; meanwhile the vehicle has broken down 300 km. from the nearest town. There is a degree of whimsy here but it does serve to demonstrate again the difficulty for the code in dealing with payments as goods in kind. How is a dealer to retrieve payments made as food, clothing or blankets?

10. Payment to artists

10 (2)  While we agree with the principle of payments to artist within 30 days there may be a need for some flexibility here with reference to a reasonable timeframe in mitigating circumstances. Consider the case of an artist with no bank account details provided where the artist may be travelling and difficult to contact.

14. Provenance

14 (1)  Consideration needs to be given to a value threshold. Many small items of limited value are produced without certificates of provenance. This applies with small items of woodwork, jewellery and fibrework that fit within the code’s definition of an artwork but are traded for small amounts of cash. It is not current practice to identify these works with simple swing tags rather than issuing certificates.

We believe there is a need for an additional clause in this section to stop the practice of galleries interfering with the original certificate from an Indigenous organisation identifying the artwork. This practice sees a dealer discarding the original certificate and replacing it with a certificate generated by their gallery with a new catalogue number and letterhead, while pirating information provided on the original certificate. The effect achieved is that the gallery appears to the purchaser as the place of origin of the artwork and denies the IP moral rights attributable to the artist and the agent. This issue is alluded to in 16 (4), however in the example supplied here the dealer would not use the name and logo of the Indigenous organisation but rather replace it with his /her own.

15. Respect for Indigenous cultural practices and artist’s rights

15 (10 (f)  This is an important statement of principle and we believe it should be elevated in the order of this section.

15 (1) (e)  There are circumstances in which dealers may not know whether a person is deceased. They may have produced an artwork in a non exclusive agreement and moved on. Often notices about deceased persons do not include their names according to traditional custom. There needs to be some flexibility here in terms of making reasonable efforts to gain permissions.

16. Care of artworks

16 (5)  We think this clause should apply to artworks above a certain value. Small wooden items and jewellery of low value are often fragile. They have usually been purchased from the artist. They are unlikely to be covered by a certificate of authenticity and the time and effort involved in tracing the artist and entering into this process is unwarranted.

17. Agent must provide a statement to artist

17 (10 (e) This clause should delete reference to the time and refer to the date only.

We believe there is a need for the code to include a provision for the return of unsold artworks to the artist after a reasonable time. This may be included here or dealt with in one of the agreements. We believe a dealer must return unsold artworks to artists if they are unable to sell them in a reasonable time frame or after the expiry of the agreement.

21/22. Complaints Handling System and Dispute Resolution

We think these sections of the code are highly problematic and a large majority of this material should be deleted.

The code should make reference to a process whereby complaints can be made to the Code Administration Committee against a signatory by an artist, a member of the public or by another signatory. This is not mentioned in the current document. The purpose of the code (c) refers to disputes arising under the code and should be properly dealt with. The purpose of the code does not go to other disputes that may arise from time to time.

Current sections 21 and 22 are more relevant to a system of accreditation than they are to an industry code. While we believe that good businesses should have a robust system for handling complaints, they should equally have sound financial management, good OH & S and sound human resource strategies. But these areas are not the province of the code and are rightly not mentioned. The code makes relevant mention of record keeping only as it applies to the relationship between artist and dealer. The same can be said about financial management. The code does not provide chapter and verse about how a dealer will conduct these matters. Apart from their irrelevance we think these provisions are also unduly onerous.

We think Part 3 (Code administration) should deal with process matters associated with complaints made to the Code Administration Committee and sections 21 & 22 should be reduced to the statement of principle contained in 21 (10 (a).

Additional matters

1. Conflict of interest

We have argued consistently that the code should contain explicit reference to the issues around conflict of interest. In our view much of the mischief in the sector has to do with this issue.

The issue is this. Common understanding is that an agent benefits through a commission based on a percentage of artist earnings. This means the agent benefits in line with the artist and has a fundamental interest in obtaining a higher payment for the artist. Conversely common understanding is that a ‘dealer’ benefits by marking up the price of artworks. The ‘dealer’ has a fundamental interest in obtaining a lower price for the artist. These positions are incompatible with each other in the same transaction.

The code makes passing reference to this in 8 (1) (a) concerning artwork agreements. It is also understood that the remedy for a conflict of interest is full disclosure and the reporting procedures between dealers and artists in the code provide some relief. The code should contain an important statement of principle about this matter in the same way as it does about unconscionable conduct (5.1), respect for Indigenous cultural practices (15. 1a) and complaints handling (21.1a)

2. Artist’s trust accounts

In the past week we have been informed that two commercial galleries have defaulted on payments to artists because their cash flow has been affected by the global financial crisis. They have indicated that their galleries may have to close and that artists are unlikely ever to receive payments owed to them.

It is critical that all dealers, including commercial galleries and Art Centres, maintain a separate trust account for artist payments so that monies owing to artists will be paid and remain unaffected by the management practice of the gallery. Rust accounts should operate from the date the dealer becomes a signatory to the code.

It is common practice to hold client payments in trust in other industries, for example in law firms and in the Real Estate industry. We have heard only one argument against this along the lines that commercial galleries find it too onerous to open a separate bank account. This is a superficial and confected argument.