THE widow of painter John Brack is ambivalent about it. Wendy Whiteley says in theory it is a good thing. Gallery owner William Mora, who has an enduring interest in the paintings by his artist mother, Mirka, says while he supports the idea morally, the federal government's proposed resale royalty scheme for artists will be difficult to administrate.
Who'd have thought Arts Minister Peter Garrett's plan to boost income for artists and their estates could generate such a divided response, even among those set to benefit most?
"For just about every artist (the legislation) is of dubious value, except possibly for indigenous artists," says painter John R Walker. "It's the old adage about special causes make bad law."
Walker was outspoken against the legislation when it was drafted earlier this year. On the eve of it being signed off by the House of Representatives, as is expected when parliament resumes next week, before what is expected to be a smooth passage through the Senate, Walker is resolute that the resale royalty scheme could harm the very artists it is intended to aid.
"The reason why it's not going to benefit anybody is because when I sell an artwork I get 60 per cent," he says.
Walker argues that if the 5 per cent royalty causes just one person to not buy one of his works, it would take the resale royalty on a dozen paintings to make up for that lost sale.
Garrett intends the resale royalty scheme to benefit indigenous artists in particular, but the industry is divided about the extent to which that will happen. Indigenous artists are, however, likely to be the first to see any possible returns when selling directly through community-owned art centres.
Under the scheme, which will be managed by a central administration, a flat 5 per cent royalty would go to the artist or their estate at the second resale after the legislation is introduced. For existing works, it will not apply to the first transaction after the legislation but for all subsequent sales.
The royalty is uncapped, and will cover works resold during an artist's lifetime and for 70 years after their death. Artists can also elect to opt out of the scheme for individual paintings.
"The legislation won't be backdated," Garrett says in response to some confusion in the industry that legislation could be retrospective to July, when it was scheduled to have been passed.
"We don't know how long the Senate process will take," he says, "but once that bill is passed it will be some months while we (assign a collection agency)."
So future transactions, possibly from early next year, will begin to count as an initial resale, from which point thereafter the royalty will apply.
Tamara Winikoff, executive director of the National Association for Visual Arts, has argued against the second resale clause, which is unique among resale royalty schemes worldwide.
NAVA says the government should have pushed harder to apply the scheme to the first resale of works. The Attorney-General's Department is understood to have advised the government that this model would have been unconstitutional because it would affect the value of property at present held by individuals. "It will mean that it will be many more years before artists see returns flowing through," Winikoff says.
Indigenous artists, who often sell work for far less than it is subsequently sold for, should benefit, she says. And this should happen more quickly, as those initial community centre sales will count as the primary sale. Purchases from the community centres will then count as the first resale and when those buyers sell the works the purchaser will be eligible to stump up the royalty.
But NAVA harbours concerns about the opt-out option of the legislation.
"We fear artists will be leaned on to waive their right; this is at odds with our belief this law was about establishing inalienable rights," Winikoff says.
Walker disagrees, and intends to opt out of the scheme every time he sells a painting: "People who bought my paintings 10 years ago, I have no right whatsoever to expect a return on those paintings now."
But consider the famous case of Clifford Possum Tjapaltjarri, whose painting Warlugulong sold in 2007 for $2.4 million. The artist received $1200 for it in 1977.
Michael Fox, an accountant with Lowensteins Arts Management, which provides financial advice to the arts sector, is adamant the scheme will damage the indigenous art industry, which is already experiencing softening demand following the boom that peaked in 2007. "It's not going to be easy to distribute money to Aboriginal artists and (this) will lead to a decline to overall sales of Aboriginal art," he says.
Melbourne gallery owner William Mora expects to abandon his gallery's trade in Aboriginal art once the legislation is introduced. He says the market is too fragile to cope with a 5 per cent impost.
"Many of the indigenous art centres are nervous about it," says Beverly Knight, president of the Australian Commercial Galleries Association.
"If they are serious about assisting living artists, take the GST away," she says, claiming this would immediately increase the incomes of artists.
Galleries and auction houses are particularly unhappy about the scheme, in part because they will have to collect the funds.
Sotheby's has argued that because the Australian scheme does not have an upper limit akin to the E12,500 ($21,400) threshold of the British scheme, sales of bigger art works will be transacted in markets where there is no royalty scheme, such as Hong Kong, where its regional head office is located.
Knight expects some rogue traders will be squeezed out of business, others may reinvent as "antiques dealers" to escape the royalty and emerging companies could struggle with onerous compliance regimes.
"It's not necessarily a bad thing but in the arts you've got to encourage the new and the fledgling so you've got to make sure you keep that energy going," she says.
In contrast, one serious collector says he thought 5 per cent was a fair price to pay for the peace of mind that will accompany better record-keeping, which should reduce the likelihood of fakes and better establish provenance.
And Mora says buyers who have hitherto demanded privacy will need to get used to the idea their purchase is now on the public record.
According to an analysis of resale royalties by Access Economics, the estates of Brett Whiteley, John Brack and Fred Williams are expected to be the biggest beneficiaries of the Australian scheme.
Fox also points to claims that in France five families share 75 per cent of the proceeds of its scheme and the top 20 artists in Britain receive almost half of all proceeds there.
Joanna Cave, the chief executive of visual arts copyright collection agency Viscopy, has heard it all before. She was instrumental in the creation of the British scheme before she came to Australia, and she says such figures are untrue and "miss the point".
Research by the British government after its resale royalty was introduced could not find a single buyer who wanted to pay less, she says.
For his part, Garrett is unwavering in his support for the scheme.
"I am very, very confident the desirable benefits (will) flow to artists in the medium and longer term," he says.
"I'm confident we've got the right mix of legislative measures to provide both certainty for the art market and provisions for artists to have rights that thus far they have been denied but Australian authors and composers have had."
Brack's widow, Helen, thinks the scheme will make her family's life more complicated. She already receives copyright earnings and expects this will be "just something else you have to keep track of". Still, her family should benefit considerably.
"It's a very good idea for artists' families in tragic circumstances," she says. "It's a bit disgusting when you've sold something a long time ago for pound stg. 40 and on the secondary market it gets $1 million."