Many people ask what got me interested in art law. "It isn't an area one would really think of," they say. "What exactly is it?" they ask. A colleague of mine used to love giving as his favourite answer the following example: the British Museum is governed by law which disallows the museum from giving away anything in its collections.
My last article discussed the artists' resale right. Today I shall focus on a "purer" art law topic: repatriation and return. This is my favourite example. There has been international distress caused by growing demand in art markets for a supply of artefacts from countries such as Thailand, Peru, Egypt and Iran. What has been happening is that artefacts are smuggled (usually after being hacked off temples) out of supply countries into other countries and finally make their way to demand markets such as New York and London.
This was addressed in the 1970 Unesco Convention on the means of prohibiting and preventing the illicit import, export or transfer of ownership of cultural property. It offered countries robbed of their heritage a hope to recover the items. Unfortunately Malta is not a signatory to this convention.
The convention's lack of redress to persons who suffer the theft of items in their private collections was felt. This was catered for in the 1995 Unidroit Convention on stolen or illegally exported cultural objects. Malta is not a signatory to this convention either but has taken part in the negotiations.
Some notable countries that have chosen to stay out of these conventions are the United Kingdom and Switzerland, and they have done so out of choice. They are famously market nations, and house many works of art - many of which are of dubious provenance. They therefore removed the risk of receiving countless requests for return by opting out. But can Malta say that that is the case for its absence?
In 1993, the EU took matters into its own hands and as a result we have a directive on the return of cultural objects unlawfully removed from the territory of a member state. This was done to harmonise the state of affairs of the Community's internal market, highlighting the value of cultural objects. The movement of cultural goods out of a country is subject to the proper documentation from customs authorities. This is catered for in another EU regulation.
The return directive was transposed into Maltese law in 2003, in preparation for Malta's membership of the EU. Even though the directive is not a worldwide solution, since it only applies between EU member states, it is nevertheless a good start. The Maltese embodiment of the directive is the subsidiary legislation passed under the Cultural Heritage Act: the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State of the European Union Regulations.
The core provisions of the regulations require requested member states to return unlawfully removed cultural objects which are now found within their territory. Return is not possible if the removal has ceased to be an unlawful activity.
For the return to occur, the procedure laid out in the directive must be followed. A written request must be made by one member state to another; individuals or institutions do not have direct rights and this is a problem in terms of bureaucracy. The right applies against both possessors and holders of the object, but they must be known. The requesting member state must in fact know the whereabouts of the object and the identity of the person holding it. The regulations appoint the Cultural Heritage Superintendence as the authority in charge.
If it results that the current possessor of the item had exercised due care and attention when acquiring the item, then the requesting member state can recover it but will have to pay the bona fide possessor a sum in compensation. The Unesco Convention provides for the payment of just compensation to innocent purchasers. Unidroit is more vocal on this issue and states that compensation is due if the possessor neither knew nor reasonably ought to have known that the object was stolen and can prove that s/he exercised due diligence when acquiring the object. Proving this may be difficult, so Unidroit provides that all circumstances are taken into account, including for example whether the buyer had consulted a register of stolen cultural objects.
Before anybody gets excited about us recovering La Vallette's beloved sword, the obligation to return is confined to objects removed in or after 1993. But we draw inspiration from Italy's latest successes in having antiquities sent back from museums in the US. I am sure the Maltese population would remain grateful to France if it should decide to follow suit.
Dr Rizzo specialises in intellectual property law and art law with Fenech & Fenech Advocates.
My last article discussed the artists' resale right. Today I shall focus on a "purer" art law topic: repatriation and return. This is my favourite example. There has been international distress caused by growing demand in art markets for a supply of artefacts from countries such as Thailand, Peru, Egypt and Iran. What has been happening is that artefacts are smuggled (usually after being hacked off temples) out of supply countries into other countries and finally make their way to demand markets such as New York and London.
This was addressed in the 1970 Unesco Convention on the means of prohibiting and preventing the illicit import, export or transfer of ownership of cultural property. It offered countries robbed of their heritage a hope to recover the items. Unfortunately Malta is not a signatory to this convention.
The convention's lack of redress to persons who suffer the theft of items in their private collections was felt. This was catered for in the 1995 Unidroit Convention on stolen or illegally exported cultural objects. Malta is not a signatory to this convention either but has taken part in the negotiations.
Some notable countries that have chosen to stay out of these conventions are the United Kingdom and Switzerland, and they have done so out of choice. They are famously market nations, and house many works of art - many of which are of dubious provenance. They therefore removed the risk of receiving countless requests for return by opting out. But can Malta say that that is the case for its absence?
In 1993, the EU took matters into its own hands and as a result we have a directive on the return of cultural objects unlawfully removed from the territory of a member state. This was done to harmonise the state of affairs of the Community's internal market, highlighting the value of cultural objects. The movement of cultural goods out of a country is subject to the proper documentation from customs authorities. This is catered for in another EU regulation.
The return directive was transposed into Maltese law in 2003, in preparation for Malta's membership of the EU. Even though the directive is not a worldwide solution, since it only applies between EU member states, it is nevertheless a good start. The Maltese embodiment of the directive is the subsidiary legislation passed under the Cultural Heritage Act: the Return of Cultural Objects Unlawfully Removed from the Territory of a Member State of the European Union Regulations.
The core provisions of the regulations require requested member states to return unlawfully removed cultural objects which are now found within their territory. Return is not possible if the removal has ceased to be an unlawful activity.
For the return to occur, the procedure laid out in the directive must be followed. A written request must be made by one member state to another; individuals or institutions do not have direct rights and this is a problem in terms of bureaucracy. The right applies against both possessors and holders of the object, but they must be known. The requesting member state must in fact know the whereabouts of the object and the identity of the person holding it. The regulations appoint the Cultural Heritage Superintendence as the authority in charge.
If it results that the current possessor of the item had exercised due care and attention when acquiring the item, then the requesting member state can recover it but will have to pay the bona fide possessor a sum in compensation. The Unesco Convention provides for the payment of just compensation to innocent purchasers. Unidroit is more vocal on this issue and states that compensation is due if the possessor neither knew nor reasonably ought to have known that the object was stolen and can prove that s/he exercised due diligence when acquiring the object. Proving this may be difficult, so Unidroit provides that all circumstances are taken into account, including for example whether the buyer had consulted a register of stolen cultural objects.
Before anybody gets excited about us recovering La Vallette's beloved sword, the obligation to return is confined to objects removed in or after 1993. But we draw inspiration from Italy's latest successes in having antiquities sent back from museums in the US. I am sure the Maltese population would remain grateful to France if it should decide to follow suit.
Dr Rizzo specialises in intellectual property law and art law with Fenech & Fenech Advocates.