And now for our year-in-review. What can be said about 2020 that hasn’t already been said? It was a challenging, unprecedented and heartbreaking year on the whole. The larger issues at play have certainly overtaken what additions and shifts may have occurred in the art law world. In fact, looking over the prognosis we made in January 2020 is a somewhat awkward enterprise. Little did we know that a major pandemic would overtake the world, changing every aspect of our daily lives.
And yet, strangely, some things continued on in their way. As we all approached the ‘new normal’ by summertime, some of the usual aspects of life were beginning to settle down. Court hearings began to proceed online with relative smoothness. Events, courses and conferences also moved online, eventually forcing everyone to reach a level of comfort with Zoom, Teams or one of the other platforms that frankly practically no one had heard about until March. Even at the IAL, we moved our teaching online: our annual Diploma in Law and Collections Management, for instance, ran entirely through Zoom in October, while we had several events on the platform throughout the autumn. Even our co-teaching of the Art, Business and Law LLM at Queen Mary University of London migrated to online lecturing, with biweekly face-to-face tutorials for the students physically based in London. Standing at the end of the year, it’s fair to say that almost all educational and professional interaction is now online – and we have all grown more or less accustomed to it.
As the initial shock of the pandemic subsided (if that’s the right word), things started to move forward in our area. We received the long-awaited decision from the UK Supreme Court in Dill v Secretary of State on listed buildings and the removal of chattels therefrom (in this case two large lead urns), along with confirmations from the Court of Appeal that the challenge to the ban on trading in ivory was dead in the water and that the attempted export of a so-called Giotto was impermissible under UK and EU law. More recently, the Court of Appeal has confirmed last year’s decision requiring the seller of a (seemingly) forged Frans Hals to repay the purchase price at Sotheby’s request. On the whole, these decisions had been expected this year anyway – and were duly delivered. The outcomes were unlikely to have shocked too many onlookers.
On the global scene, there has been movement on restitution matters. Though most would agree that, owing to the pandemic, such movement was certainly not as rapid as many had expected. France has introduced, debated and passed (just last Saturday, officially) a law removing 27 African items from its public collections in order to return them permanently to Benin and Senegal. This is a historic law, the first of its kind in France to restitute objects of cultural heritage to foreign nations. The only two precedent Acts passed in France related to ancestral remains, returned to South Africa and New Zealand respectively. Now that the precedent has been set, the question is whether there will be more artefact returns from France in 2021. Meanwhile, the Dutch seem to be moving forward on plans to return artefacts to former colonies, with an important advisory committee recommendation having been made to the Ministry of Culture in October. Germany’s Contact Point for collections from colonial contexts has also been launched. We will see how the three-year pilot project pans out.
And then of course – amidst it all – came Brexit. The formal withdrawal of the UK from the EU occurred on 31 January 2020, but thereafter followed a transition period that lasted until the end of the year. During the transition period, the situation has remained as though the UK were still a part of the EU, so no actual change has been felt on the ground. This will of course change on 1 January (ahem, tomorrow), when the period will have ended and the UK will no longer be bound by EU rules. At the 11th hour, a trade agreement was reached (just last week, on Christmas Eve) by which the two blocks have agreed to a number of baseline rules regarding trade and cooperation. Interestingly, this includes a few provisions affecting cultural property: there is an undertaking to cooperate in the return of cultural objects and a promise not to impose import duties or tax on items imported for exhibition (I have commented on both of these in the Art Newspaper), the maintenance of the Artist’s Resale Right in the UK and a clear repudiation by the UK of the EU’s copyright scheme for ‘orphan works’ (we wrote about these topics in advance here).
So while a number of things in the UK will remain the same in the New Year, there will nevertheless be certain differences – and more importantly, there will be an adaptation period for dealing with the new cross-border rules and bureaucracy. Finally – and this was not in the agreement, but was released by the DCMS earlier this month – the UK has undertaken to adopt the new prohibition on introducing unlawfully removed cultural goods, deriving from Article 3(1) of the EU Regulation 2019/880 on the introduction and the import of cultural goods, and will maintain it beyond 1 January. The changes this entails were commented on earlier here.
There are of course a number of other developments that happened in 2020. In fact, it turned out to be a rather busy year in art law matters. A number of important US cases were either heard or decided – all commented on ably by our American friend, the attorney Stephanie Drawdy. There were deaccession issues, as museums began to feel the pinch of lockdowns, with their resources drying up. And then there were a few promised changes to the law in the UK around treasure and export licensing for cultural objects. The impact of much of this will be felt in 2021 and beyond. So we will include all of it in our next prognostication for the year ahead. Watch for it in the coming days.
Until then, happy New Year from all of us at the IAL. Looking forward to a much better 2021!