EVENT: Highlights from the IAL study forum held in London on 29th June, 2013

LONDON. Last Saturday I attended the study forum organised by The Institute of Art and Law ("IAL") as part of the "Diploma in Art Law" distance learning course I am currently enrolled in. The day-long forum was focused on the protection of cultural heritage in times of war and national panels (UK and France as the representative from the Dutch Restitution Committee was unable to attend on the day) established to consider and, where appropriate, recommend the restitution of cultural objects looted during the Nazi era of 1933 to 1945, or, in the case of the CIVS in France, pursuant to anti-Semitic laws passed by the Vichy Government. Attendees included Professor Norman Palmer QC (3 Stone Buildings, Lincoln's Inn), Jeremy Scott (Lipman Karas LLP), Kevin Chamberlain and Dr Barbara Lauriat (King's College London).

 

The presentations were, without exception, highly informative and stimulating and one of the highlights for me was Julia Cornett's talk on the evacuation of artworks by the National Gallery and the Tate Gallery (now Tate Britain) before WWII (by the time war was declared on September 1, all major works had been evacuated) and the continued safekeeping of evacuated works until the end of the hostilities in 1945. The plans were initially drawn-up as early as 1933 which, notwithstanding developments in Germany, seems surprisingly early given the government's policy of appeasement during the 30s. It is also worth noting that no legal documents of any kind were entered into by the institutions with the various "bailees" of works (largely stately homes and the Manod quarry in Wales) in respect of the "exiled masterpieces".

 

The recent developments in copyright law discussed by Dr Lauriat also warrant a special mention:

•  Full term of copyright protection for "design derived from artistic works": under section 52 of the Copyright, Designs and Patents Act 1988 (the "CDPA"), artistic works that also constituted registered/unregistered design were entitled to a reduced term of copyright protection of 25 years. The Enterprise and Regulatory Reform Act 2013 (the "ERRA") will, however, repeal this section of the CDPA such that the full term of copyright protection under the Act (i.e., life plus 70 years) will apply to many forms of industrial, mass produced design. Professor Lauriat noted how IP academics and practitioners have opposed this change to the copyright regime in the UK on the basis that there is no (economic or other) reason why the design and "knock-off" markets cannot continue to coexist.
 
• "Orphan works": a high proportion (in some cases up to 31%) of public collections are made up of "orphan works", namely works whose copyright owner either cannot be identified or located. These works pose a direct threat to the mass digitisation projects of museums, libraries and archives and the root of the problem, said Professor Lauriat, lies in the fact that since 1911 copyright is not a registerable interest in the UK (cf. Berne Convention). The European response in the form of Directive 2012/28/EU was described as narrow in its scope by permitting only certain publicly accessible bodies use of orphan works following, inter alia, a "diligent search" of such works but the UK's implementation under section 116A of the ERRA will be considerably wider as private as well as public bodies or persons may rely on this provision and the related regulations (yet to come) for the licensing of orphan works. Professor Palmer asked whether the test for "diligent search" under section 116A(3) would be objective or subjective to take into account the resources of a particular person/institution and while the Secretary of State has yet to provide regulations in this regard, Professor Lauriat was confident that the test would be objective. Finally, it is worth noting that section 116A does not affect the publication right in respect of unpublished works though under section 76 of the ERRA, the Secretary of State has the power to reduce the term of protection (currently under the CDPA's transitional provisions unpublished works are protected until 2040 so long as they remain unpublished).
 
• Originality: copyright protection in the UK is grounded in the concept of "originality" which is not defined in the CDPA but rather developed (albeit inconsistently) in the jurisprudence. The test that has traditionally been deciphered from the relevant case law is whether a work "originates" with an author/creator meaning whether its creation is the result of "the skill, labour, judgment and effort" employed by such author/creator. The 2009 CJEU decision in the Infopaq case (and in 2012 the Football Dataco case) appeared to introduce a different, European test for originality though the court in NLA v. Meltwater stated that the test applicable under English copyright law remained unchanged in practice. Nonetheless, Dr Lauriat was of the view that perhaps the Infopaq case represented a fresh opportunity to revisit the concept of originality and in particular consider if the standard is met in photographs of three dimensional works such that copyright protection vests in these photographs (museums and galleries have long argued - and exploited - the copyrighted nature of these photographs; cf. The Bridgeman Art Library Ltd. v. Corel Corporation in which the district court reconsidered the Graves' case and held that no copyright vested in the photographs though note the higher standard of originality in the US vis-a-vis the UK).

"Armenian restitution claims on the rise"

Most restitution claims relating to wartime looting are in connection with the World Wars or the Holocaust but The Art Newspaper has reported that, according to Loyola Law School, legal claims of looting during the Armenian "massacres" (which many would characterize as "genocide") are on the rise. Not surprisingly, the claims are said to be following the approach adopted in Holocaust restitution claims. The case of the Armenian Apostolic Church against the Getty Museum in Los Angeles is thus far the most notable but it may only be the "tip of the iceberg." The Church has sued the museum for the return of seven pages from a medieval Armenian Bible "almost a century ago" but the museum argues that it bought them legally. Even if the case does settle out of court, it's predicted to open the door to more cases of this kind. Two big obstacles to all restitution claims are whether the end buyer is a bona fide purchaser for value without notice (usually protected at law) and the statute of limitations (the key question being from which date should the statutory period start to run in these cases).

A natural pairing: restitution and the jurisdictional question, this time with a twist

WASHINGTON, DC. In virtually every restitution claim filed in federal court against a defendant foreign nation, the defendant challenges the basis of the court's jurisdiction. In December it was Spain and now it's Hungary who claims that neither the "expropriation" or the "commercial" exceptions to the Foreign Sovereign Immunities Act (the "FSIA") apply to give the federal district court in DC jurisdiction to hear and adjudicate the suit instituted by Baron Herzog's heirs against Hungary and four state-owned museums for the restitution of "at least 40 works" looted by the government and its Nazi collaborators in 1944. From a litigation strategy perspective, it's not surprising that, where the defendant is a foreign sovereign nation, the initial response is to seek dismissal on the grounds of lack of jurisdiction. This is because if successful, it avoids having to mount a defense on the merits of the claim. However, the "jurisdictional question" in this particular case is unique due to the 1973 US-Hungarian Claims Settlement Agreement which, according to Hungary, overrides the FSIA exceptions should these even apply to give jurisdiction (Hungary says they do not). 

Modeled on the Rumanian and Bulgarian lump sum agreements of 1960 and 1963, respectively, the US-Hungarian Agreement was aimed at the "preadjudication" of claims of the United States and its nationals against Hungary for property claims arising out of the Hungarian government's actions during WWII. By its terms, the Agreement was "in full and final settlement" of claims against Hungary in respect of which the United States received a lump sum of $18.9 million (as settlement for claims allegedly worth $80,296,047), payable in 20 equal installments starting June 30, 1973. In return, the United States agreed to waive all claims against Hungary upon full payment, whether on its behalf or on behalf of its nationals, existing or prospective. The distribution of the funds received fell within the exclusive competence of the United States with Hungary incurring no liability whatsoever in respect thereof and US nationals looking to their own government for compensation.

Aside from contesting jurisdiction, Hungary has also argued that plaintiff De Csepel's relatives already received compensation under a US 1955 programme constituting another possible ground for dismissal. Counsel for the plaintiffs has "urged the court to reach an independent decision on the merits of the family’s claim and disregard the technical roadblocks once more being raised by Hungary." But this is not a winning argument in favor of invoking the court's jurisdiction: the court cannot legitimately find jurisdiction based on its own view that the plaintiffs deserve adjudication of their claim. Likewise, emphasising Hungary's current Presidency of the EU and its obligations under the Washington Principles and the Terezin Declaration may put pressure on Hungary to compensate the plaintiffs but it has nothing to do with resolving the jurisdictional question. The plaintiffs' response is due April 1.

Russia retaliates

MOSCOW/WASHINGTON D.C. The Chabad organization (based in Brooklyn, New York) has for decades sought the restitution of the Schneerson Library, "a collection of 12,000 books and 50,000 religious documents assembled by the Chabad-Lubavitch Hasidic movement over two centuries prior to World War II, and kept since in Russia." The New York Times reports that just before the collapse of the Soviet Union, a court in Moscow ordered the return of the artifacts to the organization but the judgment was subsequently set-aside by Russian authorities. The District Court for the District of Columbia then ordered Russia to repatriate the collection in July 2010 but Russia took no part in the proceedings and contested the court's jurisdiction to adjudicate a claim based on "Russian" assets, located in Russia (I suspect the court's jurisdiction was grounded in the "expropriation exception" under the FSIA - cf the Pisarro claim on the jurisdictional question). Russia retaliated by putting pressure on state-run museums in the country (including the Hermitage and the Pushkin) to cancel scheduled loans to US museums alleging that the loaned works could be seized in the US to compel compliance with the Schneerson judgment. American diplomats insisted that was not the case and I believe that's a correct statement of the law - the loaned works would be immune from seizure under the FSIA and since title over these works is not contested, I don't think they could be attached. Nevertheless, the scheduled loans have been canceled as a result of the fallout which will now be noticeably felt in the US this year as several blockbuster shows miss out on promised loaned works.

"Returning the missal seemed a symbolic gesture to help heal the wounds"

LONDON/BENEVENTO. The return of the Benevento Missal marks a milestone -- it "will be the first item of Nazi-era loot from a UK national museum to be restituted to its pre-war owner." Astonishingly, legal restrictions had prevented the enforcement of the Spoliation Advisory Panel's original decision in 2005 recommending that it be returned to its rightful owner. In the UK, artworks that form part of a public institution's permanent collection are owned by the State (as is generally the case in all European countries) and "it is not within the power of the collecting institution to deaccession any of its collection unless it is legislatively empowered to do so; it is not a matter for the discretion of the institution" (see MLA). Non-statutory bodies lacking the power to deaccession normally obtain the necessary power by looking to the Charity Commission for an order and/or consent but the British Library was created by statute, the British Library Act 1972, and is governed by its terms which constrain the Board's deaccessioning powers in several ways. Such constraints prohibited the deaccessioning of the missal and a change in law would inevitably be needed if it was ever going to be returned to Benevento (I wonder why it is that counsel spent 3 years preparing and pursuing the claim presumably aware of the enforcement issues that would ensue if the Panel adjudicated the claim in their favor). The change finally arrived with the passing of the Holocaust (Return of Cultural Objects) Act 2009 conferring power to bodies including the British Library Board "to return certain cultural objects on grounds relating to events occurring during the Nazi era." The name of the statute is misleading since it is drafted broadly enough so as to include non-Holocaust cases such as this one provided the "event" (undefined but usually the misappropriation of the object) occurred during the "Nazi era" (widely defined as the period beginning January 1, 1933 and ending December 31, 1945). The claimant is still required to seek an Advisory Panel's recommendation and its approval by the Secretary of State but the barriers to enforcement of the recommendation have been completely removed. The Benevento Missal restitution is therefore likely to be only the first case of its kind to culminate in the successful return of the looted object.