Character, admission and the legal profession

'Disclosing Lawyers: Questioning Law and Process in the Admission of Australian Lawyers' by Francesca Bartlett and Linda Haller in (2013) 41(2) Federal Law Review 227 comments that

Australian lawyers are assessed and admitted to practise at a state and territory level. An important part of that assessment is an applicant's 'suitability' for professional practise; also referred to as the 'character test' of personal morality. This test requires applicants for admission to disclose relevant information about themselves including past conduct and (in at least one state) mental health status. Very little information about the process of admission is available. Around the country, we do not know how the character test is currently administered, how many applicants reveal past conduct, and how many are refused admission. 

This article focuses on the three largest jurisdictions of New South Wales, Victoria and Queensland. It traces their varying approaches to admission; from legislative provision, court interpretation to administrative approach. It also examines some rare data about disclosure patterns on applying for admission. The resulting analysis raises concerns about a range of matters relating to admission to legal practice in Australia. It is argued that the secrecy of process is unjustified; and there is lack of confidentiality, certainty, and possibly fairness, ensured for applicants, particularly where issues of mental health arise. Finally, it is argued that there is a great difference in law and process between the states considered. While the ostensible goal of protection of the public is the same, the approach is far from that. ...

Do these discrepancies in state disclosure rates, and process practices, really matter? We would argue, at least, that the consequences of these differences may be significant. For instance, it is possible that in Victoria, and Queensland, authorities consider the admission process an important educative opportunity in which new lawyers reflect on professional and personal ethics, particularly when they conflict with a personal desire to hide embarrassing information. Even the process of admission is considered part of the ethical 'education' of applicants. Applicants are expected to reveal very personal and minor matters and are perhaps judged more harshly should they not do so.  In contrast, NSW admission authorities appear to place greater responsibility on applicants themselves to self-filter and only disclose serious matters. The lack of any need to publish notice of an intention to seek admission in NSW means there is also no threat from third parties of further disclosures in that state. The experience of admission in NSW may consequently be less adversarial, invasive and paternalistic. It may provide a solution to the critiques offered by Rhode and other commentators. On the other hand, if there is some merit in the 'character test', it is arguable on the basis of 2009 national data that NSW potentially has more 'unsuitable' applicants slip through their admission process than in Victoria. At the lowest, it has arguably signalled to the public a negligible role for the character test in that state.  We query whether local legislatures intended to produce substantively different results across Australia. The jurisdictions considered introduced a form of national legislation in the Model Laws. The relevant Acts allow for the common law to concomitantly govern in this area, which is ostensibly similar across Australia. We argue that one explanation for the discrepancies lies in the symbiotic relationship of the courts and those agencies who administer law. In Victoria, the expansive approach in the jurisprudence has engendered a rigorous process adopted by the admitting authority which has been communicated to those applying for admission. Until recently, there was no guidance from the authority and applicants had to rely on case law. This is generated when an applicant appeals a refusal of the Legal Profession Admission Board to issue them with the compliance certificate they require for admission or the NSW Bar Association or Law Society of New South Wales appeals a decision to grant a certificate.There appear to be fewer such appeals relative to the number of applications in NSW, which might actually flow from a less demanding admission process (requiring fewer disclosures) than in other jurisdictions.The NSW picture appears to be that only very significant matters will be relevant to disclose. 

State courts almost exclusively refer to only local case law when deciding admission cases, making the influence of precedent from other parts of Australia opaque. This, together with the confluence of factors described above, has produced large disparities across the jurisdictions considered. At the very least, we argue that there is a need for a more transparent and consistent approach to admission in Australia. Some would say these differences are nothing to be concerned about and simply reflect the healthiest aspects of a federated state-based admission system. We disagree for a number of specific reasons. 

First, we believe there is no justification for the lack of transparency that occurs in most states and territories as to applications processed each year. We applaud the detailed reporting that emanates from Western Australia and efforts of LACC. This not only provides transparency but also guides future applicants as to the sorts of matters that may require further explanation to admission authorities, and the type of procedural steps (decision on the papers, informal chat with the Convenor, or formal adversarial hearing) that they are likely to expect. We do not call for confidential information to be published. Rather we ask for reporting of key indicators such as how many applications are refused each year; generic descriptions of the reasons for denial; rates of disclosure by applicants, the general nature of such disclosures and how they are classified. 

Second, we are concerned that, at the same time that the process lacks transparency, paradoxically, it lacks privacy. For instance, there are examples of the process being far from private. In a recent Victorian professional disciplinary case that identified the individual involved, the Supreme Court mentions oral hearings conducted by the admitting authority and its deliberations as to whether to admit the candidate over an incident of student misconduct. Despite the Board's concerns about character, the Court ultimately admitted the candidate. Thus it seems even matters which do not bar admission can haunt a person professionally and lead to a slippage of confidential information. Relatedly, we have particular concerns about what the perception of a lack of privacy might mean for disclosures relating to mental illness. We are also concerned about the apparently adversarial and invasive nature of such inquiries. We suggest that concerns about maintaining privacy are best dealt with by taking 'capacity' concerns out of the 'character' test. LACC makes a similar recommendation. As Bauer recommends, what is needed is close scrutiny of process. 

Third, we are concerned about the lack of coherence and clarity concerning the implications for applicants revealing a history of mental illness. It appears that there are very different standards and practices across the three jurisdictions considered. Victorian, NSW and Queensland guidelines now state that:

if an applicant makes a full disclosure of a condition relevant to capacity and demonstrates that the condition is appropriately managed, it is highly unlikely that the disclosure will lead to an adverse assessment of the applicant's suitability for admission.

This form of clarification for future applicants is welcomed. However, applicants may read cases like XY v Board of Examiners as a continuing indication that mental illness disclosures will result in differential treatment. In this regime, there may yet be claims of unlawful discrimination as in the United States if decisions are made on the basis of status. While NSW and Queensland apply a different test, we remain concerned about the lack of certainty as to its scope, particularly in the light of Doolan v Legal Practitioners' Admission Board which provides no guiding principle. 

Finally, we are concerned that the admission process discriminates so dramatically between law graduates depending upon the state in which they seek admission. If this becomes well known, it is foreseeable that there may be forum shopping. On the eve of uniform legislation in NSW and Victoria, we should take this opportunity to discuss this as a national issue. One approach is to consolidate the admission standards and process. Under the LPNL, the National Legal Services Board is empowered to decide who will be admitted by issuing 'compliance certificates' to the state court. The state courts would still retain a power to refuse to admit a person, but there would be a strong, public disincentive to act in a way that is unjustifiable as there is a requirement to report reasons. As this process is centralised, more anonymity for applicants can be seen to be, and actually, accorded. We concede that this structural change to admission may not be part of any enacted version of the LPNL next year. However, it provides a useful example of how a 'uniform' legislative approach could produce positive results. As it stands for the foreseeable future, applicants for admission across Australia will continue to be subject to variable approaches to their 'character', if and when they ask to join the legal profession.

Investigation and Privilege

'Data Protection in the Context of Competition Law Investigations: An Overview of the Challenges' (Tilburg Law School Research Paper No. 020/2013) by Monika Kuschewsky and Damien Geradin comments -

The interface between data protection law and competition rules has become a growing area of interest for companies and lawyers. First, in the course of unannounced inspections (the so-called "dawnraids"), European Commission and national competition authority officials typically review company records and search employees’ e-mails and electronic files and records (including those which people thought had been deleted). They will make hard and/or soft copies of relevant documents and in certain cases may even seize entire hard discs. This raises the question of whether such intrusions are compatible with data protection rules and thus which restrictions such rules impose on the ability of competition officials to collect and process data seized during inspections. Another intersection between competition law and data protection law arises where companies need to collect and further process data from their employees to respond to a competition authority’s request for information or a statement of objections in the course of a pending competition law investigation. Companies may also wish to access and review e-mails and other employee records so as to uncover potential competition law infringements (e.g., in the context of a compliance programme) or to prepare a leniency application.

Against this background, this paper seeks to identify the limits that may be placed by data protection law on competition authorities, on the one hand, and companies, on the other hand, to collect and further process personal data in the context of competition law investigations.

This paper is divided into four sections. Section II briefly sets out the legal framework for data collection and processing in the EU. Section III explains the key data protection principles and Section IV identifies the key players in the context of EU data protection law. Section V elaborates on the key data protection principles and how they apply to competition authorities on the one hand and companies on the other hand. Section VI discusses the legal consequences of non-compliance with data protection rules. Section VII concludes.

'The Applicability of Privileges to Employees’ Personal E-Mails: The Errors Caused by the Confusion between Privilege Confidentiality and Other Notions of Privacy' (UC Davis Legal Studies Research Paper No. 362) by Edward J. Imwinkelried states -

Americans will generate approximately seven trillion e-mails this year. Each year employees send hundreds of billions of e-mails from their work accounts. Some of these e-mails relate to personal matters, including communications with spouses and confidants such as attorneys and therapists. Yet, many employers have formal policies both prohibiting personal use of the work account and reserving the employer's right to monitor e-mails sent through the work account.

The question has arisen whether the traditional privileges such as attorney-client and spousal attach to e-mails sent through the employee's work account. Does the employer policy negate the confidentiality ordinarily required for the privilege to attach?

That general issue has triggered a number of splits of authority. Two are especially noteworthy. One question is whether the same confidentiality standard applies whether the employee is asserting the privilege against the employer or a third party. Some courts have indicated that the employee may invoke the privilege against a third party even when the employee could not assert the privilege against the employer. A second question is whether the existence of an employer policy automatically precludes privileges from attaching. Some courts have adopted a flexible, multi-factor test including such considerations as whether the employer actually monitors or has made inconsistent representations to the employee. However, other courts -- the majority -- have ruled that the existence of the employer policy is dispositive, precluding any privilege claim by the employee.

This article criticizes the view that the confidentiality standard varies as well as the view that the existence of an employer policy is dispositive. Both views distort the basic concept of confidentiality. The first view is flawed because the concept of confidentiality requires the holder's intent to exclude all parties outside the circle of confidence. The employer is not within the circle including the employee and his or her confidant. Thus, if the employee impliedly consents to the employer's monitoring, there is no privilege to assert -- whether the opposing litigant is the employer or a third party. The second view is equally unsound. That view confuses the normative meaning of reasonable expectation in Fourth Amendment jurisprudence with the factual meaning of reasonable expectation in privilege law.

Confidentiality is the central concept in modern privilege law. Three quarters of the published opinions addressing privilege issues turn on the confidentiality concept. The courts must resolve the modern disputes over the applicability of privileges to employees' e-mails on work accounts without distorting that basic concept.

Juries

'Casual Ostracism: Jury Exclusion on the Basis of Criminal Convictions' by Anna Roberts in (2013) 98 Minnesota Law Review 592 comments that

Statutes in forty-eight states permit the exclusion of those with felony convictions from criminal juries; thirteen states permit the exclusion of those with misdemeanor convictions. The reasons given for these exclusions, which include the assumption that those with convictions are embittered against the state, do not justify their costs. Procedural justice theories indicate that embitterment of those with criminal convictions need not – and should not – be assumed. Rather, policymakers should do what they can to avoid such embitterment. This Article therefore proposes that automatic statutory exclusions on the basis of criminal convictions should be abandoned. If a juror exhibits individual bias, he or she can be excused for cause. If the state presumes embitterment in the absence of any showing of individual bias, it can exercise peremptory challenges. These are finite in number, and thus exact a litigation cost that may incentivize reform. A rich body of recent scholarship proposes adjustments to prosecutorial incentives in other areas of the criminal justice system; this Article adds a focus on jury exclusion to that literature, and to other recent policy critiques.

Smuggling

'Prosecution and Punishment of People Smugglers in Australia 2008-2011' by Andreas Schloenhardt in (2012) 40(1) Federal Law Review 111 offers

an analysis of people smuggling prosecutions in Australia from 2008 to 2011. Based on the available case law, the article develops a profile of 'typical' people smuggling offenders, examines sentencing trends, and analyses the role of smuggled migrants. The article concludes that current prosecutorial and sentencing practice have had no success in deterring people smuggling and develops a number of recommendations for law reform and policy change

Schloenhardt comments that

If prosecutions are to have any impact on people smuggling ventures to Australia, the focus must be shifted from prosecuting those at the end of the chain to those higher up in the organisations who arrange for, and profit from, those ventures. Between 2008 and June 2011, only two organisers — Messrs Ahmadi and Olong, who were extradited from Indonesia and Thailand respectively — were successfully prosecuted, and one of those, Mr Ahmadi, was at most a 'middleman', not a primary organiser. The gaoling of these offenders, whose conduct in organising multiple boats brought hundreds of passengers to Australia, prevented them from engaging in further people smuggling operations, which had been their intention. Although the typical offenders' conduct in undertaking the final voyage to Australia remains important as the final step in the people smuggling process, they are essentially the 'sacrificial lambs of the people smuggling industry', allowing the organisers to profit from their trade while staying out of the reach of Australian authorities. 

Leaving questions of the effectiveness of incarceration and recidivism aside, the people smuggling activity which Australia's laws are designed to 'target and deter' could be more effectively disrupted by tracking down the organisers, incapacitating their operations (at least temporarily), and preventing them from continuing the practice of recruiting poor fishermen to take the passengers to Australia. The time, money and effort involved in prosecuting and gaoling hundreds of Indonesian fishermen would be better invested in investigating, extraditing and prosecuting the organisers who put them to the task in the first place. 

Second, the prosecutions have not been successful in deterring individuals from engaging in offending of this type. Many impoverished fishermen continue to be targeted and continue to be persuaded by the offer of large sums of money to take passengers to Australia. Australian policymakers should take note of the reservations in relation to the effectiveness of general deterrence in the context of people smuggling offences expressed by some sentencing judges. It is extremely doubtful that the fishermen who are targeted by organisers, who are often illiterate and living in isolated villages, will be aware of, let alone be deterred by, the tough penalties imposed for people smuggling offences. This concern has been expressed in many sentencing remarks and is shared by many experts in the field.  

Australia must therefore rely on other means to ensure that Indonesians are aware of Australia's tough penalties for people smuggling offences, particularly those who are at risk of being targeted by organisers. It is worth noting that the Commonwealth government launched an AUD4 million education campaign in Indonesia in 2010 intended to reinforce the message that there are tough penalties for people smuggling offences, but this has been met with a mixture of enthusiasm in some of the villages that have been targeted and cynicism in others. Those formulating public awareness campaigns must bear in mind Indonesia's diversity of language and culture, and the poverty afflicting many of the small islands comprising its archipelago. 

Third, the mandatory minimum penalties provision has forced sentencing judges to impose sentences which are greater than the circumstances would otherwise justify. Because, according to the usual principles of sentencing, the appropriate sentence in these cases was frequently a lesser sentence than the mandatory minimum, the mandatory minimum sentence has been applied to all offenders who fall within that class. As a result, principles of parity between people smuggling offenders have been compromised. The recent decision in Bahar v The Queen has allayed these concerns somewhat, but this has come at the cost of potentially even more unjust sentences for individual offenders (which is what the earlier approach sought to avoid). 

Given that the two organisers who were prosecuted during the period studied, Messrs Ahmadi and Olong, were sentenced according to the usual sentencing principles and were given head sentences equal to or greater than the mandatory minimum now required, there is little support for the view that courts would impose lighter sentences on organisers, whose culpability for the offending is substantially greater than the typical offender, in the absence of a statutory minimum. 

The fear, it seems, is that courts would return to the pre-2001 practice of applying the usual sentencing principles in relation to the offenders who make up the majority of people smuggling prosecutions and impose sentences which, in the eyes of the Commonwealth government and the Opposition, appear too lenient. It is, however, implausible that Parliament genuinely considers these typical offenders deserving of sentences 'completely out of kilter with sentences handed down ... for offences of the same or higher maximum sentences involving far greater moral culpability including violence causing serious harm to victims',  as the mandatory minimum provision requires courts to impose. Rather, the retention and extension of the mandatory minimum sentence to a broader range of circumstances for people smuggling offences by a government which is — rightly or wrongly — popularly blamed for the surge in people smuggling ventures since September 2008, seems designed for the same purpose which motivated the introduction of mandatory minimum sentences by the former government in 2001: to appear 'tough' on people smugglers. 

That is wrong. Judges' sentencing discretions should not be curtailed for political purposes. In the context of people smuggling offences, it has required courts to impose heavier sentences than would be proper according to the circumstances. The mandatory minimum provision should be removed so that offenders can be sentenced appropriately and according to basic principles of fairness and justice.

Adoptions

The Australian Institute of Health and Welfare has released Adoptions Australia 2012-13 [PDF], its annual report on adoptions.

In summary

• Australian adoptions increased while intercountry adoptions declined, with the number of finalised adoptions in Australia increasing slightly to 339, up from the previous year's all-time low of 333. Compared with 2011-12, the number of children adopted from Australia in 2012-13 increased by 26; the number adopted from overseas decreased by 20. In 2012-13, more Australian children (62% of all adoptions) were adopted than children from overseas (129, excluding expatriate adoptions). 
• Despite the small increase in the number of adoptions in 2012-13, there has been a substantial long-term decline, down 32% since 2003-04, and down 77% since 1988-89 (when there were 1,501 adoptions). This is attributed by the AIHW in part to legislative changes, such as the increased use of alternative legal orders in Australia, and to broader social trends and changing social attitudes which have made it easier for children to remain with their birth family or within their country of origin. 
• The proportion of infants adopted from overseas continued to decline.  Although 78% of children adopted from overseas were aged under five, the proportion of infants aged under 12 months continued to decline-from a peak of 47% of all intercountry adoptions finalised in 2005-06 to 19% in 2012-13. 
•  The number of finalised intercountry adoptions has declined from most countries of origin in recent years. However, the number from Taiwan has increased substantially-from 3 adoptions in 2003-04 to 37 in 2012-13. This meant that Taiwan became the main country of origin for overseas adoptions for the first time in 2012-13 (overtaking the Philippines and China, which have shared this position over the last decade), comprising 29% of all intercountry adoptions. 
• Intercountry processing times continued to rise, with the median length of time for the overall adoptions process increasing from 37 months in 2007-08 to 61 months in 2012-13. This was due to an increase in processing times in countries of origin. The time taken from when an applicant's file was sent overseas to when a child was allocated to the applicant increased from 19 months in 2007-08 to 37 months in 2012-13. 
•  Children in local adoptions tended to be younger:  in 2012-13, children who were the subject of a finalised local adoption tended to be younger than those adopted from other countries - all were aged under five and 48% were aged under 12 months. 
•  Adoptions of Australian children by 'known' carers continued to increase The 81 adoptions in 2012-13 by 'known' carers, such as foster parents (52% of all known adoptions), represented a 10-year high for this type of adoption and was more than triple the 25 such adoptions in 2003-04.

Capacity

'Capacity to Consent to Sexual Risk' by Elaine Craig in (2014) 17(1) New Criminal Law Review 103 comments

 In delineating the legal boundaries of capacity to consent to sexual touching, law makers and jurists must grapple with tensions between sexual liberty, morality, sexual minority equality interests, and public safety. Legal rules that stipulate that an individual cannot consent in advance to unconscious sexual activity or to sado-masochism, or that an individual under a certain age or with a particular intellectual capacity cannot consent to sexual touching have an impact on sexual liberty and should be justified. This paper argues that establishing these limits based on normative assessments about specific sexual acts poses too great a threat to the liberty interests of women and sexual minorities. A better approach is to accept that in sex, as is probably true of all complex human interactions, an accurate application of the definitional turns on the particular. Context is everything. No sexual act, including one that objectifies, is inherently harmful. The paper offers an alternative approach by suggesting that laws defining capacity to consent should be justified on the basis of assessments of risk rather than moral assessments about sex. This stands to circumscribe law’s limits on sexual liberty in ways that are better for women and sexual minorities. What this approach does not resolve is the paradox presented by the reality that although sex is inherently contextual, criminal laws prohibiting violations of sexual integrity should not be applied contextually. The paper explores how a recent legal ruling in Canada denying the capacity to provide advance consent to unconscious sex reveals this paradox. The discussion concludes by asserting that the failure of law to exclude morally inculpable unconscious sex between ongoing sexual partners reveals the limits of law and in doing so suggests the need to reevaluate the law’s conception of the relationship between sexual liberty and sexual integrity.

a US Droit?

The US Copyright Office has released a 112 page report [PDF] that broadly favours establishment of a national droit de suite regime in the US.

The report states that

A well-functioning copyright law must provide robust support for authors, who are, after all, the first beneficiaries of the copyright system. Indeed, U.S. copyright law derives fundamentally from the principle that authors’ interests are inseparable from the broader public interest. While “[t]he immediate effect of our copyright law is to secure a fair return for an ‘author’s’ creative labor,” the “ultimate aim is . . . to stimulate artistic creativity for the general public good.” Accordingly, to the extent that the current copyright system is not working effectively for authors – or is disfavoring a discrete class of authors – Congress should be concerned. 

In the framework of the resale royalty discussions, the authors at issue are certain visual artists, including painters, illustrators, sculptors, and photographers (hereinafter “visual artists” or “artists”). Based on the information and comments provided during the preparation of this report, as well as the Office’s independent research, the Office agrees that, under the current legal system, visual artists are uniquely limited in their ability to fully benefit from the success of their works over time. The distinctive nature of the creation and marketing of visual art has not changed since the Office’s main study on the topic, published in 1992. At the same time, recent developments – including in particular the adoption of resale royalty laws by more than thirty additional countries since the Office’s prior report – would seem to warrant renewed consideration of the issue. 

In general, visual artists do not share in the long-term financial success of their works. Instead, the financial gains from the resale of their works inure primarily to third parties such as auction houses, collectors, and art galleries. Moreover, the income typically available to other authors through reproduction and derivative uses of their works is more limited for artists. Although the Internet has provided artists with greater opportunities to exploit derivative images and/or sell mass-produced copies of their works, stakeholders agree that “for most visual artists . . . the amounts involved in reproduction or representation are generally insignificant.” Indeed, it appears to be common ground that reproduction rights represent a “very minor aspect of [most artists’] careers” and that the first sale of a work is “the main or exclusive source of income for almost all American artists.”

The Copyright Office agrees that these factors place many visual artists at a material disadvantage vis-à-vis other authors, and therefore the Office supports congressional consideration of a resale royalty right, or droit de suite, which would give artists a percentage of the amount paid for a work each time it is resold by another party. A large and growing number of countries around the world – more than seventy in total – now follow that approach. Other potential responses might include the facilitation of voluntary initiatives among stakeholders in the art market, amending the copyright law to give artists a continuing economic interest in their works through, for example, greater interests in public display or commercial rental rights, and increased federal grants for visual art programs. 

That said, an “information problem” in the art market – something that many have acknowledged – does present certain challenges. Any assessment of the treatment of visual artists under U.S. law suffers from a lack of independently verifiable data about the operation of the art market and a resulting difficulty in determining whether a resale royalty in particular would truly operate to place artists on equal footing with other authors. At the same time, the Office recognizes that many of the arguments against the right are overblown. Moreover, according to the most recent studies, a number of the adverse consequences that this Office’s previous report predicted might follow from implementation of the right have not materialized in countries that have adopted droit de suite since that time. Accordingly, the Office finds no clear impediment to implementation of a resale royalty right in the United States and supports the right as one alternative to address the disparity in treatment of artists under the copyright law. 

The Copyright Office makes the following observations and recommendations:

• Although visual artists possess the same exclusive rights under copyright law as other authors, they are disadvantaged as a practical matter by certain factors endemic to the creation of works that are produced in singular form (or in very limited copies) and are valued for their scarcity. There are sound policy reasons to address this inequity, including the constitutionally-rooted objective to incentivize the creation and dissemination of artistic works. 

• While a resale royalty could be one of many factors affecting the location of auctions and other art sales, there is no evidence to conclusively establish that it would harm the U.S. visual art market. Studies produced since this Office last examined the issue in 1992 belie earlier assumptions that a resale royalty would substantially reduce prices in the primary art market or shift the secondary art market away from the United States. 

• Although adoption of a resale royalty right is one option to address the disparate treatment of artists under the law, it is not the only option, and more deliberation is necessary to determine if it is the best option. The Office’s 1992 report highlighted the fact that resale royalties appear to benefit only an extremely small number of artists. Current studies and reports remain consistent with this view. In light of the potentially limited benefits, the costs of the law (e.g., administration and enforcement), while not insurmountable, suggest that Congress should approach this issue with some caution. 

• Should Congress wish to adopt a resale royalty right in the United States, the Office recommends that the legislation:

o Apply to sales of works of visual art by auction houses, galleries, private dealers, and other persons and entities engaged in the business of selling visual art; 

o Include a relatively low threshold value to ensure that the royalty benefits as many artists as possible; 

o Establish a royalty rate of 3 percent to 5 percent of the work’s gross resale price (i.e., a range generally in line with royalty rates in several other countries) for those works that have increased in value; 

o Include a cap on the royalty payment available from each sale; 

o Apply prospectively to the resale of works acquired after the law takes effect; 

o Provide for collective management by private collecting societies, with general oversight by the U.S. Copyright Office; o Require copyright registration as a prerequisite to receiving royalties; 

o Limit remedies to a specified monetary payment rather than actual or statutory damages; 

o At least initially, apply only for a term of the life of the artist; and 

 o Require a Copyright Office study of the effect of the royalty on artists and the art market within a reasonable time after enactment.