Brexit and the changes to ‘art law’

Posted on: June 29, 2016 by

Of course we need to mention the very real possibility of Britain’s withdrawal from the European Union following last Thursday’s referendum vote. We held a class on Saturday as part of our Diploma in Art Profession Law and Ethics (with some sad faces in the room, it should be said) and listed off a number of instruments and regulations in the UK that are currently affected by EU law and policy. This was either the result of EU Directives, which by law need to be implemented by statute or regulation in the UK, or of EU Regulations, which have immediate application in member states. There are further examples in which British courts have had to follow decisions of the Court of Justice of the European Union, as in the case of copyright ‘originality’.

The list is extensive and will affect many of those areas covered during the Diploma course. These include:

  • the duration of protection for copyright protected works, including artistic works (a number of changes were made to the Copyright, Designs and Patents Act 1988 as a result of the EU’s Copyright Duration Directive 1993/98/EEC, including the extension of the general term of protection from 50 to 70 years following the death of the author);
  • the new(ish) permitted uses for cultural institutions, including museums, allowing them to make available and digitise copies of certain copyright protected works for which the copyright owner cannot be located or identified (regulations came into force in October 2014, implementing the Orphan Works Directive 2012/28/EU);
  • the artist’s resale right, which provides a royalty to visual artists (and their estates) for sales of their works on the secondary market (this has applied to living artists for ten years and to deceased artists for four, as a result of two regulations implementing the Artist’s Resale Right Directive 2001/84/EC);
  • the threshold question of copyright ‘originality’ may be subject to reexamination because following two important judgements of the Court of Justice of the European Union (Infopaq (2009) and Painer (2011)), it appeared as though British courts were beginning to apply the higher threshold for copyright protection implied by EU copyright directives, that of the ‘author’s own intellectual creation’. There is no telling how this standard will be assessed following a departure of the UK from the European court’s jurisdiction;
  • in terms of art disputes, questions relating to choice of law (under the Rome I Regulation for contractual disputes or under the Rome II Regulation for non-contractual disputes) and jurisdiction (under the Jurisdiction and Judgments Regulation) will have to be revisited;
  • art crime, which has always been linked to money laundering, could be affected due to the change of the regime derived from the EU money laundering rules;
  • restitution claims for illegally removed cultural property, in the context of intra-European claims, are currently affected by the EU Directive on the Return of Cultural Objects Illegally Removed from the Territory of a Member State 2014/60/EU;
  • VAT rules emanating from the EU would have to be reassessed, which will undoubtedly have an impact on the UK art market (see Tim Maxwell’s point in the Boodle Hatfield report here);
  • exports of cultural objects outside the EU, which are currently governed by the EU Council Regulations 2009, and which operate in tandem with the export controls placed at a national level, will have to be reassessed.

Now there are a number of ‘ifs’ still in play. First of all, the biggest IF is whether the UK will in the end commence removal proceedings under Article 50 of the Lisbon Treaty. Much would need to happen before this becomes a reality. Secondly, by leaving the EU it is quite possible that many EU policies will still remain in force in the UK, though perhaps under different guises. These would follow decisions by the UK Parliament and the UK government. Certainly, no one could argue that the hot issues in this campaign involved orphan works and artists’ resale rights! So there’s a chance that good enough will be left alone and they will stay as they are.

That said, many of the implementing regulations would have to be amended. To begin, all of them were enacted pursuant to the European Communities Act 1972 – and most make direct reference to this in their preambles. If this statute is to be repealed (as many have rightly pointed out would be required before the UK could fully pull out of the EU) then the regulations in turn would also have to be amended. This may turn out to be a mere formality, although it could give the acting government and/or parliament reason to revisit the underlying policies themselves.

All this to say that even in our little niche of art and cultural heritage law, a good deal is capable of changing as a result of the potential departure of the UK from the European Union. The change, however, won’t happen overnight. That much is certain.