Multilateral treaties and bilateral agreements relating to art, made largely in the latter part of the 20th century. These agreements were set up by nations in response to an unprecedented combination of political, economic, and technological changes affecting the art world, especially the tension between the demand for a free international art market and the need for countries to protect their own resources. This need for regulation is manifested in two important legislative areas: the increasing demand among developed nations for global recognition of their intellectual property rights, and the increasing demand among emerging nations for legislation to protect their cultural properties.
1. Protection of intellectual property.
“Intellectual property” is the legal term used to describe statutorily protected intangible rights of artists to their creations. Intellectual property rights are separate from the property rights that are intrinsic to the tangible work (i.e. painting, sculpture, etc.) when it is sold or transferred, and are inalienable from the creator, unless they are expressly transferred. The three most important intellectual property rights are copyright, moral rights (le droit moral), and resale royalty rights (droit de suite).
Copyright protects the artist from unauthorized copying, sale, or distribution of a work, and provides the artist with a means of participating in the economic exploitation of art. For example, copyright gives the artist the exclusive right to manufacture and sell prints of an original work. Nearly every developed nation has some form of national copyright legislation, and the vast majority of nations are members or signatories of one of the multilateral treaties discussed below.
Moral rights protect the continuing relationship between artists and their works, even after a work has been sold. The most important moral rights are the right of disclosure (to decide whether or not to disclose a work), the right of attribution (to be publicly recognized as the creator of the work), and the right of integrity (to prevent the mutilation or destruction of the work). Legislation on moral rights provides a remedy for the artist’s damaged reputation when a work of art is intentionally defaced. For example, in a notorious case in the USA, the city of Pittsburgh altered a mobile by Alexander Calder installed in its airport—immobilizing the parts, motorizing it to rotate forty times per hour, and changing its original black-and-white scheme to green and gold, the official colours of Pittsburgh. If the USA had recognized the concept of moral rights at that time, Calder would have been able to enjoin the city from displaying the defaced work and might have been able to collect monetary damages from the city. Artists’ moral rights have been recognized in at least sixty-three countries throughout the world and have been codified in the Berne Convention (see below).
Copyright protects the economic rights of artists only on the original sale of a work of art. Resale royalties (droit de suite) give artists the right to share in the appreciation in value of their works by receiving a percentage of the profits when their works are resold in the market-place. The significance of this economic right cannot be overstated, especially in times of spiraling art prices.
Like moral rights, droit de suite is a product of 19th-century France; there, royalties on all works of art sold in the secondary market are collected and paid by the Société des Auteurs dans les Arts Graphiques et Plastiques (ADAGP). Meanwhile, more than sixty countries across the globe are allowing some form of resale royalties. Based on Directive 2001/84/EC of September 27, 2001, resale royalties have been enacted in all EU member states, thus avoiding the former tendency of European art dealers to sell works of art primarily in those EU countries that did not recognize any resale right. Taking effect as of January 1, 2006, Directive 2001/84/EC has been harmonizing national legislations within the EU by obliging all EU member states to introduce resale royalties into their national copyright acts. In the USA, the state of California has taken a leadership role as droit de suite pioneer, passing the California Resale Royalty Act in 1976. Increasing efforts to push a resale right bill on a countrywide basis have not yet been successful.
Global intellectual property rights are governed by two important multilateral treaties: the Berne Convention and the Universal Copyright Convention. The Berne Convention, originally enacted in 1886, is the oldest multilateral copyright treaty in existence and provides the highest recognized standard of copyright protection. It has been periodically modernized through seven revisions, and was last amended in 1979. Most industrialized nations of the world are signatories, including all member states of the European Union, as well as the USA (since 1989), China (since 1992), and Russia (since 1995).
The Berne Convention is founded on a policy of “national treatment,” which means that authors enjoy in other countries the same protection for their works as those countries accord their own authors. In addition to protecting nationals or domiciliaries of member countries, the Berne Convention also protects works by any author first published in a member country. In addition to national treatment, the Berne Convention imposes certain minimum standards on member nations: they must grant authors exclusive rights of reproduction, adaptation, public recitation, and public performance of their works for a term that lasts the life of the author plus at least fifty years. Other central features of the latest revision of the Berne Convention include its prohibition of formalities as a condition of copyright protection, and its recognition of the concept of moral rights, requiring member nations to protect the rights of disclosure, paternity, and integrity.
International copyright is also governed by the Universal Copyright Convention (UCC) and a number of smaller multilateral treaties and bilateral agreements. Protection under the UCC, promulgated by UNESCO in 1952, requires a statutorily prescribed copyright notice, but, like the Berne Convention, member nations are prohibited from making copyright protection conditional on other formalities.
At the Paris Convention of 1971 the texts of the Berne Convention and the UCC were both revised, and priority was expressly given to the Berne Convention for nations that are party to both treaties. Despite the fact of having fewer member states than the Berne Convention, the UCC remains an important source of global copyright protection. In nations that do not belong to either the Berne Convention or the UCC, copyright protection for artists is available only under national laws or bilateral treaties, if at all.
Most of the later developments in intellectual property law were stimulated by innovations in the field of information technology. Copyright is the primary means of protecting software applications. As the computer technology market became increasingly international, the technologically developed countries began to demand a global approach to safeguarding these economically significant intellectual property rights. An example is the increasing harmonization of copyright law between the EU member states in the computer technology area, as set forth with Directive 91/250/EEC of May 14, 1991 on the legal protection of computer programs, Directive 93/98/EEC of October 29, 1993 harmonizing the term of protection of copyright and certain related rights, or Directive 96/9/EC of March 11, 1996 on the legal protection of databases. Although the impetus for harmonization came from technology, some of its impact has become equally beneficial in the arts market. For example, Directive 93/98/EEC has harmonized the term of protection for works of photography with other works, while Directive 96/9/EC established the protection of multimedia works. Also, Directive 2001/84/EC harmonizing droit de suite legislation was part of these harmonization efforts.
2. Protection of cultural treasures.
It was the Romans, in about 400 bce, who first glorified the plunder of art. The Roman conquerors believed that collecting booty from a vanquished nation was a legitimate by-product of war. The ancient Roman practice of wartime looting continued long after the fall of Rome, with little effort by the world community to do anything to protect national patrimony from plunder and destruction until the Hague Convention (1899 and 1907).
The Hague Convention established basic moral and legal principles, acceded to by all the major powers, which were designed to protect the world’s greatest treasures in accordance with their origins. These principles were severely tested by World War II, when Adolf Hitler gathered a wealth of cultural objects, of which most were preserved for the instruction and edification of his “superior race”; others were considered degenerate and were therefore destroyed. The Convention reconvened in 1954 for the purpose of re-establishing principles that had been neglected during the war. Its provisions allow for total protection of the cultural properties of any nation, either from the ravages of war or from the pillages that occur during times of peace. By 2018, the Hague Convention of 1899 had been ratified by 71 nations, and the Hague Convention of 1907 had been ratified by 101 members.
It is not only during wartime that works of cultural significance are exported. In 1816, Thomas Bruce, 7th Earl of Elgin, who was serving as the British Ambassador to the Ottoman court, removed eighty-eight sculpted sections from the wall of the Parthenon and shipped the marbles to England, where they were purchased by the British government and placed in the British Museum, London. Lord Elgin received permission from the Turkish government, which controlled Greece at the time, to make his acquisitions. However, the proposal that the British government should purchase them generated lively debate in the House of Commons. Should the Elgin marbles be returned to the Parthenon as part of Greek cultural heritage or ensconced in the British Museum, where they would be preserved and enjoyed by more people? The decision to keep the Elgin marbles was opposed by the English Romantic poet Lord Byron, whose poetry castigated Lord Elgin as a violator of shrines. Most politicians and scholars of the time, however, did not see anything wrong with transferring the antique treasures of poor nations to the museums and collections of richer nations more able to protect them.
In 1982, the actress Melina Mercouri, then the Greek Minister for Culture, demanded the return of the Elgin marbles. She did not file a lawsuit but tried to embarrass Britain by making her plea before a UNESCO conference of cultural ministers in Mexico City. UNESCO urged the British Museum to return the Elgin marbles, but Britain rejected the plea. David Wilson, director of the British Museum from 1977 to 1992, said: “To rip the Elgin marbles from the walls of the British Museum is a much greater disaster than the threat of blowing up the Parthenon.” He accused all those supporting the Greeks of “cultural fascism.”
Unlike Lord Elgin’s “legal plunder,” many international sales of art in the late 20th century were the result of illegal theft and looting. The Italian government estimated that in Italy alone, art treasures worth a total of some £50 million were stolen each year. Interpol statistics showed an increase in art thefts across Europe and stories of grave robberies in Mexico and Central American countries were common. No one really knows how much stolen art has been sold, but most experts believe that plundered treasures remained in wide circulation.
After World War II, the leaders of many countries became increasingly concerned about the loss of national treasures and works of art that form part of their homeland’s cultural heritage and enacted laws to protect these objects and keep them within their borders. Most countries of the modern world have some form of export restrictions on works of art. For example, Britain introduced the Waverley regulations in 1947 (codified in 1950), which stipulate that licenses must be obtained for certain types of art to be exported (see Art market). By 1983, many communist countries and developing nations, including Brazil, Bulgaria, China, and the Democratic Republic of the Congo, had established wholesale embargoes on all art from their borders. Others, such as Greece, Iran, Mexico, Turkey, and the countries of Central and South America, adopted wide-ranging restrictions covering art and artifacts from certain areas, which date back to a certain number of years.
The problem facing drafters of such legislation is how to balance the desirability of allowing unrestrained international commercial freedom and cultural exchange against a government’s wish to protect cultural property within its borders. On the one hand, the international movement of art is a good ambassador, generating goodwill and international understanding. In addition, many curators argue that museums have the means to preserve art that might be ruined by the elements if left in place. On the other hand, the argument can be made that it robs countries and their people of cultural heritage.
The growing recognition of the importance of cultural property is exemplified by an important court decision handed down in the USA in 1989, ordering an American art dealer to return four rare Byzantine Christian mosaics to the Greek Orthodox Church of Cyprus. The case arose in 1988, when Peg L. Goldberg, an art dealer from Indianapolis, arrived in Amsterdam and was shown photographs of four sections of a large Byzantine mosaic dating to the 6th century. A Dutch art dealer told Goldberg that the mosaics had been removed from the rubble of a church on the island of Cyprus that had been destroyed in the fights between Turkish and Greek Cypriots. He claimed that they were owned by a Turkish archaeologist, who had received permission from the Turkish Cypriot government to take them with him to Munich. Goldberg got a loan and bought the mosaics for £1.08 million. About six months later she offered them to the J. Paul Getty Museum in Malibu, CA, which not only refused the offer but also alerted the government of Cyprus. The Greek Orthodox Church of Cyprus, joined by the Cypriot government, filed suit in a district court in the USA demanding return of the masterpieces, which it claimed were chiseled from Panagia Kanakaria, an ancient Cypriot church. They claimed that the mosaics disappeared after Greek-speaking residents were forced from the village in 1976 by Turkish forces. In 1989, District Judge James Noland ruled that the Greek Orthodox Church of Cyprus was the rightful owner of the mosaics, rejecting Goldberg’s claim that she purchased them in good faith. The decision was hailed by art experts as a landmark in the international art trade, discouraging museums and collectors from acquiring works of art of questionable provenance.
After the 1960s, international concern over the destruction of archaeological sites and the looting of art treasures resulted in numerous international treaties and laws to stem the black-market trade. In 1970, UNESCO adopted a convention prohibiting “the illicit import, export and transfer of ownership of cultural property.” The UNESCO Convention makes it illegal under international law for cultural artifacts to be taken from their homelands for sale to another country. The UNESCO treaty has no retroactive effect, however, and does not demand the return of art that has already been stolen. It applies only to museums and similar institutions that are financed by governments, not to private museums. The country that has been robbed must prove that the stolen object is an endangered national treasure.
In 1979, the United Nations General Assembly adopted a resolution encouraging governments to ratify the UNESCO Convention and to return cultural property to the countries of origin. The Secretary General’s report stated that one of the chief difficulties in the return of cultural property is that many countries do not have proper facilities to care for the works of art once they are returned. UNESCO therefore requested the International Committee of Museums (ICOM) to study problems raised by the return of cultural property lost during colonial or foreign occupations. ICOM suggested that repository nations give an absolute priority to returning only objects of ethnographic interest or of historical or religious importance. ICOM also suggested that, before a repository nation returns cultural property, it should convince itself that the requesting nation can ensure the property’s conservation, security, and display.
By 1993, sixty-five nations had signed the convention, but only one, the USA, is a major purchaser of Classical and archaeological art, and the USA subsequently dropped its membership of UNESCO. Because the USA was a strong supporter of the UNESCO convention, the American Senate ratified it unanimously in 1972, although it took eleven years for Congress to pass legislation implementing the act: the Cultural Properties Implementation Act to stop illegal trade in cultural artifacts was signed by President Reagan in 1983. Despite this ratification, however, some experts say that the USA is still the largest market in the world for trade in illicit antiquities.
The UNESCO convention has been criticized because of its cumbersome procedures and ineffectiveness in protecting the cultural property of member countries. In response, UNIDROIT (the International Institute for the Unification of Private Law at Rome), an international organization of some seventy nations dedicated to harmonizing the laws of different countries, drafted a convention with innovative approaches to the cultural property problem. The UNIDROIT convention, adopted in 1995, considerably expanded the rights of foreign governments seeking the return of cultural property from private as well as public entities, and, in certain circumstances, allowed for compensation to be paid to a good-faith purchaser of stolen or illegally exported cultural property. Furthermore, it shifted the burden of proof for the legitimacy of a cultural object’s origin to the dealer.
There are several other multilateral art conventions, including the European Cultural Convention, the Pan-American Treaty of 1936 (binding only Pan-American nations), and a similar convention approved by the Organization of American States (OAS) in 1976. UNESCO’s international treaty was also followed by several bilateral agreements that helped reduce smuggling by tightening up security at customs. Apart from international conventions, unilateral import restrictions have also become an important means to reduce illicit trade in cultural property. For example, under the impression of systematic plunder of historical sites in Iraq, between 1990 and 2008, many jurisdictions have imposed import restrictions on cultural property originating from Iraq. In 2015 and 2016, a number of countries adopted similar import restrictions for archaeological objects from Syria.
At the beginning of the 21st century, the center of debate over cultural artifacts, as with intellectual property law, was taking place in the EU and the emerging nations of Eastern Europe. Article 36 of the Treaty on the Functioning of the EU (TFEU) allows member states, despite the free flow of trade goods under Articles 34 and 35 of the TFEU, to prohibit or restrict trade in “national treasures of artistic, historic or archaeological value.” There was much concern among some member countries of the EU, however, that its free-movement rules would nevertheless lead to massive exports of cultural heritage, especially through a proposal to abolish all trade controls for works of art less than fifty years old and valued at under £64,000. Beginning on January 1, 1993, the EU relinquished all border controls to create one single market. From April 1, 1993 onward, a harmonized EU license system for exporting works of art beyond the EU entered into operation. The EU regulation requires exporters of works of art located in a member state and falling within certain categories and above a certain value to obtain a license from their respective national authorities. For intra-Community trade, national systems apply as before. In the United Kingdom, the Department of National Heritage (DNH) has worked out a special system for Britain, whose categories and monetary limits are not identical to the EU, and has given assurances that British historic portraits, textiles, arms, and armor more than fifty years old will continue to receive extra protection (Marsan, 1993). Other EU countries, such as the Netherlands, are less strict in protecting their national heritage. France and Italy, in contrast, are traditionally known to have very strict regimes to protect their national heritage. Among the most recent European countries to adopt fairly strict legal regimes to protect their cultural property are Switzerland (2003) and Germany (2016).
- Bogsch, A. L. The Law of Copyright under the Universal Convention. Leiden and New York, 1968.
- Meyer, K. The Plundered Past. New York, 1973.
- DuBoff, L. D., King, C. O., and Caplan, S. H. The Deskbook of Art Law. New York, 1999.
- Masouye, C. Guide to the Berne Convention. Geneva, 1978.
- Feldman, F., Weil, S. E., and Biederman, S. D. Art Law – Rights and Liabilities of Creators and Collectors. Boston and Toronto, 1986.
- Ricketson, S. The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986. London, 1987.
- Nimmer, M., and Geller, P., eds. International Copyright Law and Practice. Albany, 1988.
- Lerner, R. Art Law. New York, 1989; updated version edited by R. Lerner and J. Brissler. New York, 1992.
- Meisler, S. “Art & Avarice: In the Cutthroat Art Trade, Museums and Collectors Battle Newly Protective Governments over Stolen Treasures.” Los Angeles Times Mirror. (Nov 12, 1989): mag. p. 8
- Basic Documents of International Economic Law. Oxford, 1990.
- Boyes, R. “Eastern Europe Plunders for Art Treasures.” The Times (May 30, 1991): 20.
- Cobe, D. J. “People’s Republic of China to Protect Copyrights.” Client & Times (Oct 1992): 2–3.
- Nimmer, M. B., and Nimmer, D. Nimmer on Copyright: A Treatise on the Law of Literary, Musical, and Artistic Property, and the Protection of Ideas, 4 vols. New York, 1992.
- Copyright Laws and Treaties of the World, WIPO and UNESCO, 3 vols. 1992.
- Marsan, J. “European Community Law: How to Get your Art Export Licence as from April.” The Art Newspaper. (Apr 27, 1993): 23.
- Kaufman, R. S. Art Law Handbook. New York, 2000.
- Duret-Robert, F. Droit du marché de l’art. Paris, 2004.
- Gerstenblith, P. Art, Cultural Heritage, and the Law: Cases and Materials. Durham, NC, 2004.
- Merryman, J. S., Elsen, A. E., and Urice, S. K. Law, Ethics, and the Visual Arts. London, The Hague, and Boston, 2007.