International Artlaw Research and Education Fund

This month, the International Bar Association Conference at Cannes will review the work carried out to date by its ‘Educational Trust Cultural Property Law and Research and Educational Project’. In other words, its Artlaw Research Project.

The IBA is an organisation of lawyers committed to ‘fundamental ideals like the rule of law, the fair administration of justice and human rights’, which in 1989 established a Cultural Property Committee to consider issues relating to works of art – ancient and modern. This committee’s work has resulted in the allocation of IBA funds to finance – this unique and exciting innovation. There has been increasing international debate about legal issues affecting works of art and cultural property. Throughout the world, nationally and internationally, laws relating to ancient and modern cultural property – artworks such as the Elgin marbles and Ian McCullock’s murals in the Glasgow Concert Hall – are ‘confused and conflicting’. There are many constituencies which have serious vested interests in both the cultural objects and their sites, and the laws affecting them; museums and galleries, private owners, the art trade, the tourist trade, ethnic groups, political parties and so on.

Moreover the debate is fuelled by additional pressures wrought by world change. Eastern Europe has been opened wide since the political and physical razing of the Berlin Wall The European Economic Community is poised to abolish trade barriers. The former Yugoslavia – including its unique cultural treasures – will doubtless metamorphose into further European States. The protection of cultural property has become a major issue, witness in that latter respect the agonising we all experienced over the pounding of Dubrovnik in recent months.

The IBA recognised that these legal issues were complicated by the fact that different countries, recognised at the time of writing as being in existence, have completely different attitudes to the protection of cultural property and that there is ‘no universally recognised system of international law’. Accordingly, the IBA has identified an unmet need to review cultural property laws throughout the world and to make recommendations for possible reform and harmonisation.

To this end, the IBA has established an artlaw research fund to review cultural property laws throughout the world and to recommend options for reform and harmonisation. Preliminary sounding amongst lawyers, museums and galleries produced serious interest in this idea and funding has now been achieved. The initial project has been to review the law relating to national and international loans of works of art and antiquities. The IBA judges that art loans, particularly across international boundaries, are especially important since they benefit public as amenities as well as learned art historians and academics. Legal issues for lenders and borrowers are extremely complex; difficult questions arise concerning titles, physical ownership, copyright, responsibility for conservation and restoration, security, insurance against all risks and the tax liabilities for lenders and borrowers.

In the absence of international treaties or conventions dealing with art loans, the risks involved in their movement usually outweigh the obvious arguments in favour of doing so in order to benefit the viewing public and professionally interested bodies. This first task is being carried out by Norman Palmer; who is Rawe and Mawe Professor of Commercial Law at University College in London. Research should be finished by the end of this year. (Contributions to the IBA Cultural Property Project, 2 Howard Place, Hanover Square, London WIR 9HB.)

This important and innovative initiative is the first of many such projects which the IBA will be pursuing under its ‘artlaw banner’. Specific topics will be identified for future examination. These will be the subject of review this month at Cannes. The Artlaw team has identified a number of issues which would benefit from similar treatment, and will be pressing its case with the IBA. Readers may share concerns over such matters as:

  • the need for harmonisation of laws relating to the conservation and restoration of artworks ancient and modern;
  • the piecemeal and ad hoc existence of schemes promoting the expenditure of public funds on art for new buildings and environment (percent for art);
  • the absence of laws in most countries throughout the world, requiring that a proportion of the profit made on the resale of works be paid to artist or their estates (droit de suite/ resale royalty);
  • the need for international laws requiring that payment are made to artists or their estates whenever their work is exhibited as a public amenity;
  • and the need for harmonisation of all laws which tax the sale of contemporary work as if they were commercial goods or products (in Europe VAT, elsewhere sales or purchase tax).

© The Artlaw Team 1992

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.