If nothing else, the end of a calendar year offers the chance to step back and review the larger developments in a particular area or field. This is certainly true about the world of art and cultural heritage law where it can often be hard to see the forest for the trees. So many legal areas are encompassed; and changes are often discrete and sporadic. This year, for example, we saw developments in the field of restitution and the introduction of new controls for the art trade, as well as a number of interesting cases on art export, contracts and copyright. I’ll try to give a high-level view of all of these in my précis below.
First, restitution. Following the November 2018 release of the Sarr Savoy Report on the restitution of cultural objects to Sub-Saharan Africa, the matter grew somewhat quiet in France over the course of 2019. This was likely the result of the discreet pushback amongst some French institutions against the more radical proposals of the report, as well as the terrible tragedy of the Notre Dame fire in April, which no doubt consumed much energy and many resources in the French cultural sector. A flicker appeared at the end of the year when France ‘returned’ a historic sabre to Senegal (on long-term loan, at least for now) and the Culture Minister gave a fairly precise timeline for returning the long-promised items from Abomey to the country of Benin.
Not to be outdone, the Germans have been more proactive. The various cultural ministers established a largely pro-restitution framework in March that will guide public policy on the issue of restituting colonial-era artefacts. German institutions have returned two artefacts once belonging to a storied opponent of colonial occupation in Namibia, a monumental maritime cross also to Namibia and countless human remains to Australia. British museums have also been active, with the Manchester Museum sending back over 40 objects to Australian Aboriginals in November, Edinburgh University sending back nine ancestral skulls to Sri Lanka and the National Army Museum sending back two locks of hair taken by British troops from an Abyssinian ruler over 150 years ago.
We always endeavour to stay on top of these returns, as well as their accompanying changes in policy, in order to provide a wide-lens view of the larger trends of transitional justice and geopolitical relations. I presented on some of the results over the course of the year: for the Gilbert Seminar Series at the Victoria & Albert Museum in July, at our IAL study forums and at the first of three Restitution Dialogues conferences in Israel earlier this month (the second will take place in Toronto in October 2020 and the third in London in spring 2021).
But restitution does not merely affect artefacts in museums acquired long ago. The attempt to do justice for past or continuing wrongs can be seen in new controls of the art trade, especially notable in the UK and more generally in the EU. Under the Ivory Act 2018, for instance, controls in the UK on the trade in pre-1947 ivory objects will commence shortly, which has caused much dissatisfaction in certain parts of the art market. As we’ve reported, a dealers’ association has challenged the new measures in court, but so far to no avail. At the EU level, the long-feared regulations on money laundering will come into force in a few days, and these will add a layer of bureaucratic requirement onto most mid-range-and-up dealerships, who will now be forced to ask certain uncomfortable questions of clients prior to undertaking transactions.
And lastly is the most dramatic instrument of all, even if its far-reaching provisions have not yet come into force. This is the EU Regulation on the Introduction and Import of Cultural Goods, passed by the EU Parliament and Council in April. This will result in a new system of import controls for foreign acquired cultural goods, plus a general restriction on introducing unlawfully exported cultural material into the EU. There’s a reason why my colleague Emily Gould refers to this, with more than a hint of sarcasm, as ‘the EU’s parting gift to the UK’ (the Regulation has made it in under the Brexit wire).
On exports, we saw the usual sparring between exporters and states seeking to maintain objects of value within the territory. In Canada, the Federal Court of Appeal settled an important dispute over the country’s ability to block exits on the basis of ‘national importance’, though this result is not without its own problems (as I’ve commented on here and here). More recently, France has tried to claim a medieval Cimabue (an Italian artist) as a French national treasures. These controversies will no doubt continue well into the new year, especially as we await the anticipated appeal of the Giotto wrangle before the English Court of Appeal in early 2020.
In contract law, the Simon de Pury case over an expensive Gauguin came to a close with a decision from the English Court of Appeal upholding a lower court decision. The question was whether art dealer de Pury was owed an incredible $10 million commission for his role in helping to secure the eventual sale of the painting, with the courts answering emphatically in the affirmative. More recently, we have seen Sotheby’s judicial success in obtaining compensation from a seller who consigned a work that turned out (most agree) to be a forged Frans Hals portrait.
And in copyright, a succession of decisions over the summer from the Court of Justice of the European Union will largely affect how copyright exceptions are applied throughout the EU. To put it simply, the rights of users (like DJs or appropriation artists) appear to be downgraded to the benefit of copyright owners.
At the IAL we’ve been keeping busy too. In the first half of 2019 we ran our Diploma in Art Profession Law and Ethics in London. We also offered our Diploma in Intellectual Property and Collections twice, in London (in June) and in Sydney (in July), and our Diploma in Law and Collections Management twice, in Melbourne (in July) and in London (in October), as well as several in-house training courses at different institutions. As for distance learning, we have a nice batch of students who enrolled on both the Diploma in Art Law and the Foundation Certificate in Art Law over the past year. And a hearty congratulations to all those who completed IAL courses this year! Not to mention the latest cohort of the LLM in Art, Business and Law, who graduated two weeks ago.
That’s it for 2019. Much more could be said, but of course there isn’t space (or time) to report on it all. Besides, attention spans are not what they used to be. We will have our predictions in early January, as well as announcements about upcoming events for 2020. So stay tuned. Until then, happy New Year from us at the IAL.