Squaring the Triangle of Cultural Property Law. Seventy Years of UNIDROIT’s Work

A lot has been written about the “Eternal Triangle of Cultural Property Law”, the sale of a cultural object by a non-owner, and the innovative provisions of Article 4 of the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. This article aims to demonstrate how almost 70 years of UNIDROIT’s work in the field have shaped the principles regulating a non domino sales of stolen cultural objects. The article focuses on the work conducted by UNIDROIT; from the drafting of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and the draft Convention providing a Uniform Law on the Acquisition in Good Faith of Corporeal Movables to the adoption of the 1995 UNIDROIT Convention; and examines its impact on domestic legislation and case law.

In March 2018 the Staatliche Museen zu Berlin-Preußischer Kulturbesitz (State Museums in Berlin) received a significant bequest from the estate of art historian Barbara Göpel (1922-2017), consisting of two paintings, 46 drawings, and 52 prints by Max Beckmann (1884-1950) and one painting by Hans Purrmann (1880-1966). This bequest represents an important addition to the collection of classical modernist works in the Nationalgalerie (National Gallery) and the Kupferstichkabinett (Museum of Prints and Drawings). In 1937 – during the time of National Socialism – the Nationalgalerie lost 505 artefacts as a result of the confiscation of “degenerate art”, among them eight works of Beckmann, who was in those times classified as a “degenerate artist”. But from whom did the Staatliche Museen zu Berlin receive this bequest? And is it generally important to ask from whom a museum receives an artefact? Where did the artworks come from? Is their provenance “clean” in the sense of the 1998 Washington Conference Principles on Nazi-Confiscated Art? Is it legitimate to make a distinction between the person of the collector/estate and the works of art? These are some of the – legal but also moral – questions a museum must address before accepting any cultural object that belonged to a collector who was actively working for a gigantic project like the “Führermuseum Linz”. Or should rejection of the bequest be considered?

Cultural Heritage Management (CHM) is the main vehicle for helping museums to face challenges, secure sustainable competitiveness, and redefine themselves in a constantly changing world. In this context, CHM can support museums in their efforts to play a vital role in fighting the illicit trafficking of cultural property. This article focuses on how museums can benefit from the various advantages offered by CHM, specifically with respect to the fight against the illicit trade of cultural property and its return and restitution to its countries of origin. In this light, it deals with both proactive and repressive policies, discussing how museums can maintain their credibility and ensure that they operate in accordance with high legal and ethical standards. Finally, the article discusses how museums and countries have dealt with return and restitution claims in recent years. In this context the use of cutting-edge technologies, such as 3D printing, is also discussed. This work derives from the research project “Redefining the future of cultural heritage, through a disruptive model of sustainability” (ReInHerit), which has received funding from the European Union’s Horizon 2020 research and innovation programme.

Blockchain could be used as a mechanism to certify the provenance and movements of cultural goods and contribute to the fight against illicit trafficking of cultural property. By strengthening the traceability of cultural goods, blockchain can simplify due diligence requirements and facilitate prosecution and convictions for all the relevant offences of illicit trafficking in cultural goods. However, such an impact is necessarily tempered due to the specificity of this kind of illicit trafficking, as well as the technical and conceptual constraints of the blockchain itself. Even though blockchain in its current form cannot overcome the legal obstacles which hamper the efficacy of the fight against illicit trafficking, such as the lack of harmonization of legal systems, its value in this area should not be dismissed altogether. An overview of the relevant international and European norms, highlighted using national law examples, reveals the complementary role that blockchain can have in this field, not only in terms of best practices but also in terms of an increased visibility for cultural goods and their international movement.

Over the years, our perspective on cultural heritage has undergone changes. The field has become more diverse, requiring solution-focused approaches to address the underlying problems associated with cultural heritage. One significant challenge is the issue of restitution, which is considered a major failure of international cultural heritage law. How can international cultural heritage law completely heal historical wounds instead of merely offering empty hopes to those who have suffered? Simply acknowledging past wrongs by offending states is insufficient, and it does not align with the fundamental legal principle that where there is a wrong, there should be a remedy (ubi jus ibi remedium). Despite the considerable growth in the jurisprudence of international cultural heritage law, there remains a pressing need to consolidate the legal framework to facilitate the restitution of stolen or looted cultural objects. This article argues that the prohibition of plunder and pillage of cultural property constitutes a jus cogens rule of international law. Its violation therefore gives rise to an unconditional obligation to restitute such property.

Previous decades have witnessed the widespread use of human rights discourses in explaining cultural heritage issues. The content of the cultural heritage right (a term used interchangeably with “right to cultural heritage” in this text), and the relationship between cultural heritage and human rights are diversely demonstrated in international cultural heritage instruments and previous studies. Some of them may overlap or even contradict each other, causing confusion about the relevant concepts. This article aims to answer the twin question: What is the relationship between the “right to cultural heritage” and “rights related to cultural heritage”, which together comprise the cultural heritage rights system? The main feature of cultural heritage is its spiritual significance, which constitutes the basis of the human right to cultural heritage. The core content of the right to cultural heritage is the right to enjoy the intangible value of; meaning of; and interests inherent in cultural heritage. The holder of the right to cultural heritage is “everyone” – a concept so vague that it results in the intractable tension between the right and the rights of states, communities, individuals, Indigenous peoples, humanity as a whole, and so on. “Rights related to cultural heritage”, which are not cultural heritage rights per se, include public participation rights, the right to education, ownership rights, the rights to a livelihood, development, human dignity, equality, and other basic human rights. Some of them may promote the right to cultural heritage, while some may conflict with or limit the same right.

This article argues that personal data may have a commercial value in the European legal systems, and as such it can function as a consideration and has a quid pro quo character. It claims that the European Data Protection Board (EDPB) should not exclude that data concerning the data subject can be used as contractual consideration, especially in the world of the Internet. In particular, it cannot be excluded solely on the basis that the right to privacy is not transferable, a position taken thus far in the EDPB’s practice. This proposed new approach is supported by the fact that in some EU Member States the property aspects of the general right of personality have been recognized, a stance which may also apply to personal data, without the need to recognize a kind of data ownership or sui generis intellectual property right in the data. Thus, the theory of commercial aspects of personality rights can be linked to the commercial value of personal data. The quid pro quo function of personal data may also be recognized in line with the provisions of the General Data Protection Regulation (GDPR). In fact, maintaining the interpretation of the EDPB – which denies the quid pro quo character of personal data from a fundamental rights perspective – means that the dangers of such data processing cannot be assessed. This affects cultural heritage in many aspects – from the sending of newsletters to selling merchandise products in museums. The EDPB’s guidelines, as soft law, have no direct impact on the case-law of the national courts, thus this also significantly increases the risk of a collision between the simultaneously available remedy regimes established by the GDPR.

The 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions states outright in its guiding principles that culture is one of the main aspects of development, which is as important as its economic aspects, and which individuals and people have the fundamental right to participate in and enjoy. Theatrical productions are one of the best-selling forms of entertainment. From a cultural and artistic perspective, they are one of the oldest methods of expression which, in addition to self-expression, is also a mirror of the social and political order. The aim of this article is to present the theoretical, legislative, and jurisprudential positions on the copyright situation of the theatre director. The focus of the article is on the question of how the legal status of the theatre director is settled and regulated in different European legal systems. In several European countries there are no specific legal provisions on this matter. This article is organized as follows. First, the historical and cultural aspects of theatrical productions are introduced. After that, the most important copyright law features of dramatic works are reviewed, together with an overview of some European laws. In the core of the article, the current legal situation – and possible copyright law solutions for theatre directors – are elaborated.

Because cultural heritage is a significant aspect of identity, it is often targeted during conflict or periods of repression. The danger may diminish with peace or transition, but it does not evaporate. Heritage is inherently contentious post bellum, so communities fear for the ongoing safety of their heritage, either because conflict might recur or because past patterns of cultural chauvinism or neglect might be repeated. The material integrity of heritage has gradually become a matter of concern for transitional justice. It has long been a maxim of transitional justice that dealing with the past implies preventing in the future. There is a need for regulatory schema and administrative structures serving the goal of preserving and protecting the tangible cultural riches of the state and/or communities of origin from the lingering threats that the politics of power might again be played out over heritage. Guarantees of non-recurrence (GNR) offer both an ethos and a framework in which to prioritize and think through this work of protection, conservation, and safeguarding. This article argues that the World Heritage Convention, notwithstanding its circumscribed emphasis on material and places of outstanding universal value, is nevertheless applicable to all heritage to which a GNR might be attached and provides an achievable “good enough” practice model, provided there is a threshold level of domestic political will.

This article focuses on the legal and technical challenges of protecting intangible cultural heritage in Nigeria. Over time, Nigeria and its population have focused heavily on the petroleum industry as the primary source of the country’s economic sustainability, ignoring other viable economic sectors such as heritage preservation, protection, and management for sustainable tourism. This is because the country’s heritage legislation has been severely eroded and rendered ineffectual in protecting Nigeria’s heritage resources, in particular its intangible cultural heritage. Various stakeholders have expressed concern about the need to maintain and protect cultural assets all around the world. This has thus led to the promulgation of laws governing their protection. These regulations, however, did not begin in Nigeria until the colonial period, when the necessity to acquire and conserve heritage objects became recognized. Therefore, this article uses an exploratory research design with key informant interview methodologies as a data-gathering instrument. As a result, it demonstrates that numerous intangible cultural heritage resources in Nigeria are negatively impacted by political and societal instability, the increasing demand for antiquities and artworks, and socioeconomic challenges, amongst other human-induced factors. The existing heritage law in Nigeria, Decree No. 77 of 1979, is insufficient in terms of currency, enforcement, and efficiency, rendering its provisions ineffective.

This article seeks to introduce a brief description of the rules of protection of cultural heritage goods in the Spanish Law, using the example of a mediatic case of illicit trade, where the regulations of civil law, criminal law, and administrative law were applied and where the freedoms inherent in the right of ownership collided with the rules on properties of cultural interest. First, it provides an overview of the Spanish cultural heritage law, beginning with the constitutional mandate of assuming and promoting the protection of Spanish cultural heritage, and thereafter focusing on the concept of private ownership and its limits, in accordance with the social function of all property rights under the 1978 Spanish Constitution. Second, it describes a well-known case of illicit trade, focused on a valuable painting by Pablo Picasso. The work Cabeza de mujer joven (Head of a young woman) belonged to a private owner who decided to sell it internationally, using the services of a well-known auction house. When the required permission for exportation was denied by the Spanish public administration, the owner commenced a court proceeding aimed at changing the decision, but also planned to send the painting abroad using a yacht on his property. Thirdly, the article’s conclusion reflects on the level of severity of the Spanish legislation as applied in the case, in the context of the balance between cultural heritage protection and the freedom of disposition inherent to the right of property ownership.

Under Polish law objects that are archaeological cultural heritage discovered, accidentally found, or acquired as a result of archaeological research, are the property of the state. This is the situation of the original acquisition of the monument. As a further consequence, archaeological monuments are excluded from trade (becoming res extra commercium). Besides trade, the export of archaeological cultural goods is also highly problematic. In the case of permanent export of a monument abroad, the law imposes the obligation to obtain a permit for such permanent export, issued by the minister responsible for culture and the protection of national heritage. The regulation in Polish law makes it almost impossible for any archaeological cultural goods to be legally exported. The restricted freedom on the market of works of art and monuments in relation to archaeological finds, together with the limited options of mainly temporary export, have created high activity in the black market, calling for a change of approach of the national law towards archaeological heritage. This leads to the question: Should we introduce some legal changes in the ownership rights of archaeological heritage to bring it closer to people?