The Next Moves Forward, part 2

This month’s Artlaw continues and concludes the exploration of the newly-elected Government’s past achievements and future policies in relation to the visual arts, and, in the context of joint European cultural, those policies to which the UK subscribes.

Re-sale Royalties

Most European States, but not the UK, have introduced legislation to ensure that artists share in the appreciation of their works in transactions subsequent to original sales initiated by themselves. Indeed, a modification of the Berne Convention suggests (but does not require) that this right be introduced into the laws of subscribing States. To date, UK Governments have resolutely affirmed their respective intentions not to do so – citing our non-obligation not to do so, as expressed in the Convention.

However, our EEC partners are greatly concerned over the economic imbalance the UK Government’s position creates: most EEC States do have such a law (which involves any seller paying to the artist a small percentage, between 1% and 3%, of any profit made on any re-sale during the artist’s lifetime, and to the artists’ heirs for up to fifty years after their death); the imbalance complained of is that in, say, Paris, Rome, Milan, Brussels and Berlin (where the ‘re-sale royalty’ law applies), the market-place is disadvantaged compared to, say, London, where sellers profits are not caught by this extra ‘tax’.

Sadly, the Government’s White Paper (mentioned last time) re-affirms the present Government’s position: no introduction of droit de suite; its reasons are that ‘others’ (no names, no pack-drill) have argued against droit de suite for the UK, on the grounds that it could only be administered in relation to visible public sales, and would thus lead to an increase in clandestine private sales or to a move away from public to private sales to the detriment of auctioneers and dealers whose loss of business would have an adverse effect on artists themselves; that it is just as logical for artists to bear a share of any losses incurred on re-sales; and that its administration would in any event be too complex.

Similar arguments were put forward at the turn of the century to oppose the introduction of the then novel copyright law – which subsequently was adopted by successive UK Governments as a vital national and international scheme for protecting and advancing the livelihoods of all creators of all works in all art forms. Successively, unimaginative and myopic Governments just cannot perceive, for example, that the administration of such a scheme would be no more complex or costly than running the current VAT scheme – which could be used to incorporate droit de suite or, better still, the tax itself could be abolished for sales of visual artwork and the scheme used to administer droit de suite.

Moral Rights
After ten years of argument and much lobbying, eight years under the present Government, it is pleasing to report the Government’s plan to introduce moral rights legislation into the laws of this country, in fulfilment of our international treaty obligations to do so. The White Paper proposes as follows:

  1. authors will be given the right to claim authorship and to object to any distortion, but not to modification of a work to which they could not reasonably refuse consent;
  2. these moral rights will be independent of economic rights, and will be exercisable only by the author. After his/her death they may be exercised by the person who inherits the copyright or, if the author no longer owns the copyright at his/her death, by the person to whom he/she has bequeathed them. An author will be able to waive moral rights, and such waiver will override inheritance or bequest; and
  3. moral rights will apply for the duration of the copyright.

I wouldn’t argue with that. Let’s hope the voices that made this happen vigilantly see that it passes into law. Refinements for the future, perhaps for Parliamentary debate when the time comes, are two facets of the UK proposals which do not accord with the Berne Convention and ought to be deleted: ‘not reasonably refuse consent’ and ‘waiver of moral rights’.

Public Exhibition Payments
Ministers challenged the long-standing principle that exhibiting an artist’s work was doing the artist a service, and they took the view that the artist was in fact doing the public a service; the idea being that by showing work, even with the object of selling it, the artist was providing a public amenity – and should be remunerated from public funds accordingly. From schemes originated in Sweden in the 1960s, then in Norway, France, the Netherlands, Italy and Germany, most European states introduced schemes for making such payments. In the UK in 1973, artists in the ‘New Art Show’ at the Hayward each received £100 as a loan fee; then the Arts Council of Great Britain looked at the idea of introducing their own scheme whereby payment was made automatically – without application by the artist and not as a fee for loaning work or for services rendered regarding the ex-position – in any gallery or show funded by them; the Regional Arts Associations took this up; but, unlike most of our European partners, the UK has not yet introduced or been pressed for legislation giving artists a legal entitlement to receive such payments. To date, the voluntary exhibition payments schemes, described above and supposedly now operating, do not appear to succeed: funds are simply not available; artists are expected to apply, but are largely ignorant of their ability to do so, or are unwittingly (sometimes wittingly) subjected to maladministration. The very arguments in favour of legislation.

Great strides have been made in recent years, largely initiated by artists themselves, to re-occupy and rehabilitate disused buildings – especially in the UK, where otherwise decaying inner city areas, docklands, and industrial zones have been greatly utilised by artists and groups of artists. In the 1970’s the Arts Council of Great Britain launched the ‘Housing the Arts’ scheme, now sadly no longer able to pump what were large capital funds into the promotion of such schemes; these included the establishment of arts centres as well as studios. Many local authorities today still exercise their discretion to provide Rates Relief or Rebates to such causes deemed worthy of help, and some make available unoccupied buildings they own or lease on a low- or no-cost basis – partly as a policy of supporting the arts and partly to obviate serious risks of vandalism and squatters. Combinations of these thrusts have undoubtedly succeeded in the short term and, in the long term, have caused or seriously engendered a general rejuvenation of such areas which, sadly, has forced such artists or art ventures out of a property market they can no longer afford. Only in France, certainly not in the UK, Central Government has for many years subsidised the building of new studios in financial partnership with regional and local authorities.

Public Commissions: % For Art Legislation
Ministers recognised the desirability, in some countries the environmental necessity, of involving artists in the planning, design or enhancement of the environment through their being commissioned to work in collaboration with planners and architects on public spaces, places and buildings. Many considered such artist involvement to be so vital that legislation was introduced – with public funds to boot – requiring that a percentage (between 1% and39%)of public expenditure on such environmental projects be devoted to commissioning artists: % For Art Legislation.

In the UK, an ‘art and architecture’ movement seriously began in 1982 with the ICA Conference under that banner, followed by the establishment of an ‘Art and Architecture’ Group, the publication of ‘Art Within Reach’ (by Art Monthly in collaboration with the Arts Council of Great Britain and the Crafts Council, through Thames and Hudson) reviewing the extent of public commissions in the UK and the method and manner of their promulgation and execution, plus the related exhibition at the AIR Gallery; and the Public Art development Trust was then established, with funding through the Gulbenkian Foundation, to broke public commissions. The Department of the Environment, the GLC (until 31.3.86), some local authorities and Regional Arts Associations, have tried to promulgate and administer their own voluntary administrative and financial policies and schemes for the better promotion of public commissions. But no steps have been taken to inaugurate ‘% For Art’ legislation.

Remuneration For Artistic Services
Recognition was given to a change in the sociological understanding of an artist’s role in society: no longer merely a producer of ‘goods’ but also a provider of ‘services’; and it was acknowledged that this change stemmed from an abrupt change in the course of the history of art during the second half of this century through contemporary makers themselves increasingly questioning the hitherto traditionally accepted understanding that a ‘work of art’ meant a unique, irreplaceable product, constituting an end in itself. And so, again from Sweden, emerged an acceptance by Government that their artists were no longer ‘deviants’ engaged in luxury pursuits reserved for a privileged few, but were socially productive workers who should be part of society instead of living on the fringes of it. Accordingly, they took steps to create new jobs and projects, with funds to match; similar thrusts spread throughout Scandinavia and then to other European countries. The aim of Governments is simply to recognise that the age of patronage, even State patronage, is gone; that it is therefore no longer appropriate to build up an artistic heritage simply by purchasing and commissioning works; and that the state must provide artists with new ways of making their livelihoods. No such acknowledgements, nor measures reflecting them, have occurred in the UK.

Throughout Europe, artists have traditionally taught in colleges and art schools as a secondary occupation. In the UK, as in some other (mainly Western) European countries, the non-academically qualified practitioner was encouraged to visit and contribute – all states recognising in that tradition a vital symbiosis: students needing dialogue with practitioners (as well as from academic teaching staff); visiting practitioners needing the money. The past eight years has increasingly seen the National Advisory Body (NAB) introduce policies on art education which have meant radical financial cut-backs. This has resulted in the virtual elimination of the traditional hiring of visiting practitioners, and the reduction in fine art courses to the advantage of design courses in an effort to broaden the base of visual art education. The present Government’s White Paper on Higher Education proposes to replace the NAB in 1988 with a centralised Polytechnics and Colleges Funding Council (PCFC): this body will exercise control over visual art education through funding mechanisms, acquisition of assets (such as buildings), and requiring the colleges themselves to raise money through sponsorship (selling courses to industry), fee-paying students and raising mortgages on any assets not compulsorily acquired by the PCFC; staff will be employed by new governing bodies approved initially by the Minister.

Cultural Leaders and Communicators
Distinct from a formal education function, artists have long been recognised by many European countries as having a vital role to play in bridging the serious gaps between the public’s understanding of the notion of ‘work of art’ and their perceptions of non-traditional contemporary works; practitioners are, therefore, variously employed through public funding to work in: compulsory education (primary and secondary schools); community cultural centres; public galleries and exhibitions (accompanying visitors, informing and educating); designing, originating, monitoring, accompanying and presenting travelling exhibitions, and acting as instructors and guides; hospitals, clinics, psychiatric institutions and prisons (in a social, therapeutic, as well as educational, role).

Traditional and Institutional Change
The rationale essentially involves change from ‘museums’ to arts or cultural centres – the aim being to bring creation and distribution of contemporary work together in one place, an underlying principle being that State support for promoting better dissemination and more sales of works will have positive benefits for the socio-economic situation of artists and artistic creation. Various financial and policy measures have been introduced to encourage: classical galleries and museums to hold exhibitions of contemporary works, to make facilities available for artists to meet each other and the public, to work and research, to bring in other art forms such as music, dance and theatre, to establish schemes for loaning works to the public; the establishment of experimental groups and bodies for initiating and disseminating innovations to a participating public; the introduction of training courses for artists in communication, teaching, marketing and public relations; the democratisation and decentralisation of membership of committees for organising and selecting major national and international exhibitions, particularly involving independent professional artists, critics, modern art historians and soon-in some cases lay members of the public.

In the UK, some of these changes have been evident, but on nothing like the scale or breadth as has occurred in Italy, France, West Germany and the Scandinavian countries; and certainly not through direct or indirect, but specifically earmarked, new central or local government funding – rather through temporary or occasionally permanent adjustments of administrative policies by bodies in receipt of Government funding which, in real terms, has decreased and is diminishing.

Predominance of the Art Market-Place
Apart from the Scandinavian countries, where democratisation of art distribution, public education and artistic property go together, the rest of Europe’s art market plays a predominant role; so that public intervention is often inevitably conditioned by market requirements. Some governments have tried to introduce measures to create an improved climate in the commercial marketplace – for galleries and purchasers. Some states have introduced lower VAT rates on sales; many have produced new funding for artists’ first exhibitions, help with catalogues and, most importantly, for public purchases to be made from private galleries. In this country, no new Government money can be said to have been provided to the responsible arts bodies at arms-length from the Executive. However, it has been known for public purchases to have been made through private galleries rather than from artists’ studios or private collectors. Again, some States, but not the UK, have provided new funds to assist private purchasers of works, on certain conditions. Taxation has been recognised as a vital role for Government which alone can introduce fiscal measures to promote a financial climate where dissemination and purchase of works can flourish. Such measures in Europe are very limited and are clearly bound up with the overall political, social and economic climate of each State. Here, no real tax incentives have been initiated specifically to encourage more purchases of works; private individuals must purchase works out of their taxed income; individual traders, partnerships, registered companies and corporations can (and are encouraged by the Government to) use existing tax laws to reduce their tax bills by claiming as legitimate business expenditure (deductable in assessing taxable profits) purchases of work or sponsorship of artists or arts ventures. This is not like some European countries which allow taxable individuals and commercial organisations to pay their taxes by purchasing works of art, sponsoring or donating to artistic endeavours, and/or offer exemptions from capital gains or inheritance taxes specifically for donations or bequests of works of art or finance for artistic organisations and ventures.

In the UK, our charity laws do enable arts ventures which qualify for registration as charities to benefit from certain tax privileges (not VAT) and Rates Reliefs; but, despite strong and articulate advocacy and argument for reform of charity law (so as to enable arts ventures which are not necessarily charitable or individual artists who certainly cannot claim charitable status, to receive fiscal support as if they were such creatures), no such change has come about nor is it being seriously contemplated.

The first eight years
Our international reputation in the arts has never been higher. Tourists flock to this country to enjoy the highest standards of theatre, music, artistic excellence and our museums. Art centres have nearly doubled in number since 1979. Attendance at theatres, concerts, cinemas and historic houses have all risen significantly.

Under the Conservatives, spending on the arts has risen by 15 per cent since 1979 after allowing for inflation. Over the same period, the Arts Council grant has risen from £61 million to nearly £139 million. And schemes like the Business Sponsorship Incentive Scheme have pushed the value of sponsorship from £1/2 million to £25 million over the last decade. (Conservative Party Manifesto, 1987.)

In relation to the visual arts- however, no specific comment or claim was or has been made. This is hardly surprising since, constitutionally, UK Governments have consistently pursued a domestic arts policy of keeping the Executive at ‘arms’ length’ from national, regional and local arts authorities established to make and administer policy decisions as to who or what receives financial support – thereby leaving the Executive solely in a funding role. Even the Business Sponsorship Incentive Scheme, referred to in the Manifesto (Central Government will match funds raised by arts ventures from private business sponsors), is administered through the councils and associations responsible in the field. But, of course,’ those very policies, made at arms’ length from the Executive, and their success or failure in the event, largely determine the annual financial support made available by Central Government; together with the Executive’s assessment of the general economy of the country, currently and for the immediate future. So, do the Government’s European cultural commitments, specifically for the visual arts, figure at all in funding decisions?

From this exploration of those obligations and any achievements over the past eight years, they appear not to do so. Moreover, the post-election statements by the new Arts Minister, giving his signals for the next moves forward, make it perfectly clear that certainly new, perhaps even current, funding for the arts generally will be made available only to match business sponsorship funds raised initially by the arts community itself- the BSIS scheme writ large as the Executive’s complete policy package.

Moves forward
Accordingly, the next moves forward for makers and administrators, public and private, in my opinion need to be made immediately, jointly, coherently and strongly. Five years is not long, for these purposes. Particularly pressing agenda items seem to me to be these: of paramount importance is the establishment of a strong national body representing the majority of professional makers (full- and part-time), its immediate dialogue with all bodies representing administrators and with the arts councils and associations and their representative bodies; secondly, to agree a joint agenda of the most essential items drawn from the comprehensive catalogue of methods of support already agreed by the Executive with its European partners, which could therefore be received as truly representing the needs of the arts community in the UK and as being in line with pre-existing cultural commitments made to Europe as a whole for the visual arts.

If this were done, strongly pressed on the Minister, and if he caused the Executive to make a meaningful response during its new term of office, then and only then might it be possible for it properly to claim that ‘Our international reputation in the’ visual ‘arts has never been higher’.

@ Henry Lydiate 1987



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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.