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Santander Art and Culture Law Review

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1/2025 (11)

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Publication date: 05.09.2025

Description
Published with the financial support of the City of Bydgoszcz.
 
© Copyright by Bachlaw Foundation and Authors. Artykuły są dostępne na licencji CC BY 4.0.

Licence: CC BY 4.0 licence icon

Editorial team

Editor-in-Chief Alicja Jagielska-Burduk, Anna Koziczak

Deputy Editor-in-Chief Wojciech Szafrański, Andrzej Jakubowski

Issue Editors Alicja Jagielska-Burduk, Andrzej Jakubowski

Issue content

Alicja Jagielska-Burduk, Andrzej Jakubowski

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 9-10

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Interview

Artur Obłuski, Alicja Jagielska-Burduk, Ewa Manikowska, Andrzej Jakubowski

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 11-22

https://doi.org/10.4467/2450050XSNR.25.001.21957
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Articles

Wojciech W. Kowalski

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 23-46

https://doi.org/10.4467/2450050XSNR.25.003.21959
The article will open with a brief outline of the evolution and definition of restitution as a legal concept, which is often used as a general term for all claims and restitution of monuments in various international situations. As a result, this term not only encompasses objects taken during the context of war, but also applies to efforts to remove the effects of colonialism or territorial changes in the field of heritage, as well as the ongoing fight against the scourge of the circulation of illegally exported and stolen works of art. Explaining these situations and distinguishing the legal institutions involved leads to the conclusion that “restitution” has long been known as one of the forms to eliminate the effects of war and, as such, also serves to recover cultural property seized during wartime. On its face, this simple conclusion seems to be self-evident and should not raise any doubts. However, if one looks at the practice of individual states over the last 200 years, one can notice a strong political entanglement in the area of restitution, depending on the broader context of relations taking place between the states concerned. In the article, the author analyzes the restitution policies of countries most relevant to Poland, namely Great Britain, the US, Russia, and Germany. The study ends with the conclusion that restitution is strongly dependent on the current policies of the countries involved. Another example of this dependence includes the war in Ukraine.
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Ewa Manikowska

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 47-68

https://doi.org/10.4467/2450050XSNR.25.004.21960
The focus of this article is the Potocki of Krzeszowice collection, one of the best-preserved yet least recognized Polish historical aristocratic collections. Although it survived the Second World War in an almost untouched state, it was fully dispersed within a few years after the war’s conclusion. Its components were nationalized on various legal grounds and distributed among numerous institutions located in cities as far apart as Krakow, Warsaw, and Wrocław. By examining the sources and documents related to this period through the lens of provenance research, the article proposes a preliminary reconstruction of this forgotten collection, with a particular emphasis on incorporating the perspectives of its creators and original owners. Additionally, the article explores the phenomenon of the nationalization of Polish private collections, along with its complex contexts and far-reaching consequences.
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Tamás Szabados

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 69-92

https://doi.org/10.4467/2450050XSNR.25.005.21961
In the Esterházy case, the plaintiff requested that Hungarian courts establish its ownership over cultural goods located in Hungary that had been part of the collection of the Fraknó castle of the aristocratic family through the centuries. History – through the removal of the goods from the castle; their nationalization; and the change of state borders – had an imprint on the legal status of the cultural goods concerned. By analyzing the case concerning cultural objects whose elements are located in different states but which once belonged to a single collection, this article sheds light on the practical difficulties related to the private international law treatment of such collections, and thereby intends to contribute to filling in a gap in the literature. The difficulties include ascertaining the law applicable to the existence of connections between things, as well as to the main legal issue and the determination of jurisdiction.
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Renata Komić Marn

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 93-120

https://doi.org/10.4467/2450050XSNR.25.006.21962
This article is about the history of Philipp Hugo Baron Wambolt von Umstadt’s collection of family portraits. The collection, currently kept at the National Museum of Slovenia and the Dolenjska Museum in Novo mesto, was stolen from Hmeljnik Castle in Dolenjska in the spring of 1942. As Wambolt was of German nationality, all his property was nationalized in 1945. Yet the portraits were kept in a safe place until the end of the Second World War when centres for the collection of seized cultural heritage were established in Slovenia. Then they were taken over by the National Museum in 1951. The study of the archival and pictorial material, as well as extant literature, has revealed that the portraits originated from three aristocratic residences located in present-day Germany, Slovenia, and the Czech Republic. Indeed, they serve as an exceptional testament to the political, social, and cultural history of Europe from the 17th to the 20th centuries. This article argues that factors that may have hindered research into this valuable art heritage for almost 80 years include post-war museum policies; the overloading of museums with nationalized heritage; and the resulting lack of storage and exhibition space, as well as a lack of interest in the art and culture of the former aristocratic elites. However, the main, and decades-long inhibiting factor, was probably the fact that until recently the Wambolt family, who settled in Slovenia only in 1876, and their collections, were not fully accepted as part of Slovenian national history.
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Aleksander Słysz

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 121-144

https://doi.org/10.4467/2450050XSNR.25.007.21963
Although registered museums operate as non-profit institutions for the purpose of protecting cultural heritage, they are not subject to tax exemptions with respect to property tax. The existing exemption is based on the special status of a registered museum and the “possession” of land or a building. This solution, while opening the possibility of abuses leading to tax avoidance, has a historical justification and is supported by a series of arguments raised during the legislative process. Nevertheless, an analysis of the exemption’s operation over nearly three decades leads to the formulation of two de lege ferenda postulates, i.e., it seems necessary to: (1) specify more precisely the regulations on the exemption for parts of buildings in the possession of registered museums; and (2) extend the exemption to structures (constructions) related to the economic activity of museums, which would affect the coherence and effectiveness of the tax preference under examination. At the same time, both desiderata seem to be consistent with the legislator’s intention so far.
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Przemysław Saganek

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 145-178

https://doi.org/10.4467/2450050XSNR.25.008.21964
The topic of the present paper is a so called “sponsorship tax relief” – a tax preference provided for in the provisions of Art. 26ha of the Personal Income Tax (PIT) Act and Art. 18ee of the Corporate Income Tax (CIT) Act. It provides for the reduction of base tax by 50% of the costs related to supporting sports, cultural activities, and higher education and science. This relief is accessible for PIT taxpayers who obtain income from a non-agricultural economic activity source and CIT taxpayers obtaining income from sources other than capital gains. The text is composed of two parts. The first describes the position of the “sponsorship tax relief” in the system of PIT and CIT – starting from the establishment of the gross revenue to deductions from the amount of tax. “Sponsorship tax relief” is one of the last operations which can be implemented, but not the last in any case, as it precedes the calculation of final tax amount. The second part concentrates on the norms dealing with the support for culture and their application in practice. The author demonstrates that the “sponsorship tax relief” is not dead letter, though sponsoring sport is much more popular than sponsoring culture. The latter can take place by sponsoring a cultural institution or a cultural activity of either an artistic university or a public artistic school. The question of which subjects are to be supported does not give rise to doubts. However, there are doubts concerning the requirement that support can only be deducted if it can be qualified as a cost of obtaining income. This means that sponsoring is not qualified as a donation but rather as a transaction giving rise to mutual rights and obligations. In this sense, CSR is not an act of charity, but a business strategy requiring good legal preparation.
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Artha Dermawan

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 179-204

https://doi.org/10.4467/2450050XSNR.25.009.21965
As the world contends with social polarization and the erosion of democratic institutions, the stakes are higher than ever. Yet, despite these pressing challenges the future continues to be predominantly framed in economic terms. For instance, in the 400 pages of the Draghi report in Europe: art, creativity, and creative professionals remain sidelined, viewed as “weak” or “less relevant” portfolios. They are conspicuously absent from major global frameworks, such as the Sustainable Development Goals, the Green Deal, and the Democracy Action Plan. Meanwhile, Artificial Surrealism is already transforming the creative industries, posing new challenges to authors and human creativity. This article addresses the challenges posed by Artificial Intelligence (AI), particularly in the context of text and data mining (TDM). It provides an in-depth analysis of the European Union’s legislative response to TDM exceptions under the Copyright Digital Single Market Directive and highlights the need for a more effective remuneration system for authors. The article applauds the establishment of a Collective Licensing with Extended Effect (CLEE) regime, proposing a Training Data Remuneration Scheme administered by Collective Management Organizations (CMOs). Such a regime aims to secure fair compensation for authors whose works are used in training AI models. For the royalty distribution model, the article proposes a pro-rata calculation based on each author’s contribution to the AI training datasets, ensuring an equitable and transparent allocation of revenue.
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Varia

Ewa Kozerska, Tomasz Scheffler

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 205-228

https://doi.org/10.4467/2450050XSNR.25.010.21966
The topic of this article is the position of Pope Francis and the Dicastery for Culture and Education (an administrative unit of the Roman Curia) under his authority towards new technologies and their impact on cultural heritage. The digital revolution has triggered in the Church the need to redefine the place of man and culture in a world dominated by new technologies. In this paper, we aim to show that the statements of the Dicastery and the Pope mark an ambivalent attitude towards the changes signalled. On the basis of the analysed documents and using a descriptive method, we want to prove that the Catholic Church accepts the fact of inevitable changes resulting from the process of digitization of societies, and sees potential advantages and opportunities for civilizational development. At the same time, from the perspective of Christian anthropology, which does not allow for the reduction of man to his biological existence, the Pope and the Dicastery note the negative consequences of algorithmic cognitive processes. Their one-dimensional character significantly alters the educational model of man, which has the effect of distorting cultural heritage. Furthermore, we note that this new and still not fully understood digital reality challenges the Church to develop a philosophical and theological basis to tame it, analogous to what occurred with the legacy of Greco-Roman culture or the Enlightenment.
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Andriy Sendetskyy

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 229-248

https://doi.org/10.4467/2450050XSNR.25.011.21967
This article presents the results of an interdisciplinary pilot study on the role of theatre in the context of cultural diplomacy between Poland and Ukraine over the past decade. The research period was shaped by Russia’s invasion of Ukraine and Poland’s ongoing support for Ukraine in its fight against the aggressor. The study explores the role of theatre in shaping international cultural relations, with a particular focus on its use as a tool of cultural diplomacy in Polish-Ukrainian relations. The analysis centres on the interactions between representatives, governments, and cultural institutions of both countries. The article examines the place of theatre in cultural diplomacy between Poland and Ukraine from 2014 to 2023. The research methodology included induction (comparing empirical data); deduction (hypothesis verification); analysis; synthesis; and analogy. A historical-comparative analysis was also conducted, tracking the evolution of cultural relations between Poland and Ukraine. This analysis compares the development of international theatre practices, including festivals, artistic residencies, and cultural exchanges involving artists from both countries. An institutional analysis further identifies the role of specific organizations, their position in cultural diplomacy, and their efforts to strengthen Polish-Ukrainian relations. The article identifies key challenges and obstacles that hinder the execution of Polish-Ukrainian theatre projects within cultural diplomacy. This analysis will assist in developing strategies to overcome these challenges and improve the process of enhancing bilateral relations between Poland and Ukraine in cultural diplomacy.
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Małgorzata Mizerska-Wrotkowska

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 249-272

https://doi.org/10.4467/2450050XSNR.25.012.21968
The research problem of the article relates to one of the most important elements of Spain’s cultural heritage – its linguistic diversity. The author has set two objectives: (1) to show the linguistic policy of Spain from the regional to the international level; and (2) to carry out a preliminary diagnosis of the effects of the September 2023 reform of the Spanish Congress of Deputies’ rules of procedure, which provide for the ability to use all languages with official status at the regional level in the work of this chamber. The primary research method while writing the article consisted of an analysis of the available literature on the subject and source materials in Polish, Spanish, and English. In the light of the research carried out, the author has come to the conclusion that it is still too early to assess the effects of the reform unequivocally. However, pros and cons can already be identified. Positives include the promotion of minority languages and the appreciation of their users, while the negatives include the too rapid pace of change and the lack of consensus among major political forces, the high cost of translation, the deprivation of Castilian (the only official language in Spain under the Constitution) of its superior position, the possibility of inaccurate translation, and disputes and misunderstandings among politicians.
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Bartosz Szolc-Nartowski

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 273-296

https://doi.org/10.4467/2450050XSNR.25.013.21969
Roman jurisprudence developed several literary genres as well as a distinctive language and vocabulary. For centuries, legal Latin was the international language of lawyers, passed down from generation to generation. Today, legal Latin is not as significant, but it is still taken into account in legal education. It is present in both legal practice and contemporary legal literature. The aim of this article is to answer the question of whether legal Latin can be recognized as intangible cultural heritage within the meaning of the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage.
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Debutes

Paula Mroczkowska-Król

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 297-316

https://doi.org/10.4467/2450050XSNR.25.014.21970
This article aims to analyse the legal issues involved in bringing an action for the return of lost cultural property, with particular reference to international law norms. The starting point for consideration is the discussion of the case of the Wassily Kandinsky watercolour stolen from the National Museum in Warsaw and found at the Grisebach auction house, but the conclusions and postulates formulated are of a general nature and can be applied to improve procedures for the general recovery of cultural property or to strengthen the protection of such objects from permanent loss. The first part of the paper discusses the case of the Wassily Kandinsky watercolour based on newspaper articles and online information, and analyses the artwork’s provenance. The second part of the paper focuses on presenting possible legal solutions leading to the recovery of cultural property, discussing potential problems and risks related to restitution. The next, concluding part of the paper draws conclusions about the level of legal protection of cultural property and proposes tools that would protect cultural property in a more effective way.
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Zagrożenia dziedzictwa kulturowego na świecie

Olgierd Jakubowski

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 317-330

https://doi.org/10.4467/2450050XSNR.25.002.21958
Various methods may be used to analyse crimes against cultural heritage, including determining the level of risk. A comprehensive study covering all instances of crime against cultural goods throughout a one-year period allows us to note tendencies in criminals’ behaviour and helps to develop methods to counteract similar crimes in the future. The article presents selected cases of crime from 2023, based on statistics prepared by the police, the National Revenue Administration, and border police. Different types of crimes against national heritage such as theft, robbery, and damage to valuable cultural objects are briefly described.
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Wydarzenia

Joanna Kotulska

Santander Art and Culture Law Review, 1/2025 (11), 2025, pp. 331-333

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Słowa kluczowe: restitution, cultural property, state policy, international relations, provenance research, Second World War, integrity of collections, nationalization of private collections, private international law, cultural goods, collections, rights in rem, ownership, fideicommissum, nationalization, portrait collections, Wambolt family, provenance research, Hmeljnik Castle, Břežany Manor, museum, real estate tax, exemption, preference, culture, sponsorship tax relief, cost of obtaining income, support of culture, cultural institution, base tax, artificial intelligence, copyright, remuneration, arts, Training Data Remuneration Scheme, digital technology, artificial intelligence, education, culture, cultural heritage, Dicastery for Culture and Education, Pope Francis, cultural diplomacy, theatre, Polish-Ukrainian relations, cultural dialogue, international relations, Spain, cultural heritage, linguistic diversity, co-official languages, General Courts (Cortes Generales), Congress of Deputies, reform of the rules of procedure of the Congress of Deputies (2023), legal Latin, Roman law, intangible cultural heritage, cultural goods, work of art, restitution, international law, civil proceedings, claim for return, applicable law, Wassily Kandinsky, Grisebach auction house, crime, statistics, national heritage, robbery, theft, damage

Funding information

Published with the financial support of the City of Bydgoszcz.