Abstract

Museums. Museum Law

The paper presents the author’s critical views on museums as public institutions in relation to their organisation, management and legal foundations. In particular, it draws attention to the limitations of the law in regulating matters such as: cultural heritage and cultural awareness and their significance in cherishing memory, tradition and a sense of community, as well as issues related to museum ethics and the education of museum staff. While discussing the evolution of museums over the centuries, the paper provides a broad comparative legal analysis. Then, it focuses on the particularities of the Polish case. It explains that the first Polish museum institutions were established in the nineteenth century under foreign (Austrian, Prussian and Russian) rule. Thus, their creation was essentially linked to the process of national self-determination. In fact, they were founded in the wake of civic initiatives and movements, often against organized state cultural policies. The paper also recalls the work of museums during the short period of Poland’s independence, in 1918-1939, followed by the devastating experiences of the Second World War and subsequent ideological policies adopted by the communist regime towards public cultural institutions and private collectors. The final part of this paper discusses critically the reform of museum legislation and management during the period of political and economic transition in Poland after 18. It concludes with a practical assessment of the existing regulations in force, indicating their shortcomings in respect of the responsibility of museums to a broader society and its individual members

 Rzymska Konwencja Restytucyjna (RKR) wzmacnia międzynarodowy system ochrony dóbr kultury przed ich nieregularnym (w tym nielegalnym) przemieszczeniem. Jest elementem rozbudowywanej siatki uniwersalnych regulacji służących ochronie dorobku kulturowego poszczególnych krajów i społeczności – jeszcze niepełnej, ale stale uzupełnianej. Zasadniczą formułą RKR jest zasada bezwarunkowego zwrotu skradzionych lub nielegalnie wywiezionych dóbr kultury, nawet jeśli aktualny ich posiadacz pozyskał je zgodnie z prawem. Konwencja ta określa istotne w postępowaniach restytucyjnych kwestie proceduralne: zasadnicze elementy postępowania w sprawie zwrotu, najważniejsze zagadnienia dowodowe, kwestie wypłaty odszkodowania posiadaczowi w dobrej wierze, a także właściwość organów państwowych. Skutkiem dostosowania się poszczególnych państw do jej wymogów jest zwiększenie przejrzystości reguł krajowych, a przez uniwersalizację standardów – podwyższenie efektywności międzynarodowego systemu służącemu restytucji dóbr kultury na rzecz podmiotów uprawnionych. 

Functions of international regulations protecting illegally exported cultural objects as exemplified by the UNIDROIT Convention of 1995

Abstract

The 1995 Rome Convention on Stolen or Illegally Exported Cultural Objects (UNIDROIT) makes a significant contribution to the international system of protection against the illegal export of cultural goods. It also constitutes part of a network of world-wide regulations that is currently being built up with the aim of protecting the cultural heritage of individual societies. This network, not yet fully complete, is still expanding and developing. The basic formula of UNIDROIT is the principle of the return of stolen or illegally exported cultural property, including cultural objects legally acquired but not transferred to a legally entitled entity.
The Rome Convention specifies procedures that are of material importance in restitution proceedings such as: the principal elements of proceedings in restitution cases, the main evidential issues as well as the competence and jurisdiction of state bodies. The effect of individual states harmonizing their regulations with the provisions of the Convention is the improved transparency of national regulations and the increased efficacy of the international system for the restitution of cultural objects arising from the establishment of world-wide standards.
 

Forty years after the Convention on Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property adopted by the General Conference of the United Nations Educational, Scientific and Cultural Organization gathered in Paris between 12 October and 14 November 1970 is a good occasion to discuss its effectiveness and topicality in today’s world with its threats to the movable heritage. The aim of this article is to discuss the most important provisions of the Convention and their implementation in Poland.

Directive 93/7/EEC: a Twenty-Year Retrospective

Abstract

Directive 93/7/EEC created a legal framework for the return of cultural goods illegally removed from the territory of a Member State. The procedure for the return of cultural goods proved to be ineffective for numerous reasons, including a very narrow definition of a cultural good, flawed instruments of administrative cooperation, or risky court proceedings connected with the indemnification of the possessor. Directive 2015/60/EU is a new step towards the creation of an effective European system of return of cultural goods. Pursuant to the new directive each Member State can now define which cultural goods constitute national treasures. The directive has also provided for the creation of new, electronic means of fostering administrative cooperation, while court proceedings have been amended to minimize the aforementioned legal risks. Thus, once the new directive has been implemented by Member States, the result may be a greater number of returns of illegally exported cultural goods, based on adherence to its provisions.

Acquisition of a title of ownership of a cultural object from an unlawful  vendor: selected issues

Abstract

Acquisition of ownership of movable property is of particular significance in the trade in cultural objects. Legal systems adopt different solutions which either allow or disallow acquisition in good faith of ownership of movable property. Another issue of importance is regulation governing the object of a transaction which is an item of cultural heritage. Under Polish law each item of movable property receives the same treatment with regard to the legality of a transaction. From the point of view of the trade in cultural objects, acting in good faith when purchasing such objects becomes of particular importance. The model of such acquisition is here shaped by legal principle, earlier judicial decisions as well as practices prevailing in the art market. Partial solutions of the issues discussed in the paper will be achieved after the adoption of an amended law on found property, in which objects entered into a national register of lost goods have been covered by a special legal regime.

Myths and pathologies of  the trade in works of art

Abstract

The specific conditions of the art market constitute a perfect place in which crime can function well and flourish by making use of increasingly more sophisticated mechanisms used in the international trade in these objects. There are certain myths, such as the myth of the dual market (legal and illegal), the myth of faith in national law and in soft law, or the myth of a young market. However, reality shows a poor understanding of the mechanisms that are present in the art market and a spreading of those myths, which in consequence leads to a further strengthening of the pathologies that do exist in the market, such as, among other things, corruption, price manipulation, or the legalization of stolen or excavated objects. In this paper, the pathologies occurring in the art market are categorized and the case study presented shows the practical difficulty of solving the conflict that arises between a seller (owner) and a buyer in good faith as well as the shortcomings of the new model referred to as an eternal rhombus.

Abstract

The recent amendments to the Civil Code of the Republic of Poland regarding the liability of a seller for the lack of conformity of delivered goods with the contract of sale will have a significant impact on the art market. Until recently the Code provided for a distinction between the seller’s liability in the case of a consumer (liability for lack of conformity of goods) and liability in other types of sales (“rękojmia”- warranty). As a consequence of the recent amendments to the Polish Civil Code both types of liability have now been amalgamated. Currently, the seller’s liability is based on the concept of warranties and conditions, which makes a significant difference, particularly in the case of the sale of forged artworks or antiquities. Surprisingly, new amendments to the Civil Code and to the Antiquities Protection and Care Act aimed at combating art theft have led to unexpected results, depriving many buyers of stolen works of their right to rescind the contract and to claim money back.

Holiday entitlement of librarians who are not academic teachers

Abstract

The misinterpretation of the provisions of Article 264 section 7 of the Act of 27th July 2005 – Law on Higher Education resulted in the unlawful attribution to librarians who are not academic teachers of an entitlement to annual leave of 36 days, whilst a proper interpretation of the same Article reads that library staff as well as workers employed as library curators, senior librarians and senior documentalists are entitled to 26 days of annual leave. This interpretation, however, encountered criticism from the librarian community. Nevertheless, pursuant to the applicable law in Poland, as of 1st September 2005 librarians who are not academic teachers are not entitled to annual leave of 36 days and their entire holiday entitlement is 26 days.

Polish self-portrait

Abstract

An artistic portrait is a gate to immortality. It builds an image and serves as the calling card of the model. All over the world, lawyers have always commissioned their portraits, nothing has changed in that for generations. In this paper, an attempt is made at answering questions of how, for whom and for how much to pose for a portrait and of how to revive the old Polish tradition of commissioning portraits.

Abstract

The main purpose of the article is to outline the role of the local authority monument conservation officer and give a comparative analysis of agreements on the management of cases within the competence of the Pomeranian Monument Conservation officer dealt with by the local government structure of the City of Gdańsk, Sopot and Gdynia. The article begins with a discussion of the process of appointing the local authority monument conservation officer, the operating principles of the post, assessment procedures and main duties as determined in the 1996 Acts and those resulting from the officer’s own objectives. The agreements entered into are presented as the main tools of the local authorities, which should streamline and improve the supervision of monuments in a given commune. Next discussed are the legal grounds of such agreements followed by a detailed analysis of the most substantial differences which are the subject of further discussion. Additionally indicated are areas specific to the provincial monument conservation officer, despite their location in an area covered by a given commune. Final conclusions comment on the differences and, taking the above considerations into account, their application by local government monument conservation officers. The article concludes with a subjective evaluation of the office itself and its operation.

Restitution issues as exemplified by the dispersal of the Gołuchowska Collection

AbstractThe article focuses on the issue of the restitution of the Gołuchów Collection, one of the most important private art collections in Poland. During World War II a large part of the Gołuchów Collection, founded by Princess Isabella Działyńska née Czartoryska (1830-1899), was looted by the Nazis and the Soviets. In the communist period (Polska Rzeczpospolita Ludowa 1945-1989), as a result of a deliberate museum policy, the surviving items of the collection were dispersed to National Museums in Cracow, Warsaw and Poznan and have remained there till now.

Criminal threats to the national heritage – an analysis   of the events of 2014

Abstract

There is a variety of methods that may be used in the analysis of crimes against the cultural heritage which allow us to determine the level of risk. A case study covering all instances of crime against cultural goods during a year allows us to note tendencies present in the behaviour of criminals and helps to develop methods of counteracting similar crimes in the future. Based on the results of a number of such case studies it is then possible to assess the risk of crime against the national heritage in a much more complementary manner and minimise its occurrence.