Here is the second part of the interview with Giusella Finocchiaro recently published in “Il giornale dell’arte”.
What are the limits to the circulation of works of art in the light of the growth of national collections?
The provisions of the Cultural Heritage Code, which assure the international circulation of works of art, determine which of these works are under restriction, namely, withheld from permanent transfer abroad. In accordance with Italian legislation, those wishing to export cultural assets either temporarily or permanently from Italy must require some form of authorization. In addition, the Italian State can exercise its right of first refusal over all purchasers, who will then be under the obligation to return the goods purchased illegally. The aim of the current system is to safeguard the national historic and artistic heritage, and the licensing mechanism works in the attempt to discourage its dispersion. However, over the years the notification system has come in for harsh criticism due to the effects of the exaggeratedly drawn out time scale of the procedures and the arbitrary nature of the evaluation criteria, to the point of being considered a contributing factor to the phenomenon of black market activity in the art market. In the coming months a new reform may be introduced, aimed at increasing the mobility of art works, which foresees the introduction of a value threshold for the export of works and notifications, the provision for the free circulation for works up to one hundred years after their creation (compared to the current fifty years), a mandatory time limit for issuing export licenses and a redefinition of the criteria for the granting of licenses by the export office.
In your opinion, what are the possible remedies for the illegal trade in cultural assets? How do you see the issue of stolen assets?
Illegal trafficking of artworks has grown in terms of the complexity of the causes and the players involved. It is criminal trade that exploits the weakness in the control mechanisms and creates clever transaction channels in countries where there is less strict regulation of the protection of the cultural heritage. It is not feasible to implement a national strategy? in the absence of proper supervision of the international circulation of such goods. Collaboration, starting from the European Union countries, would therefore seem to be extremely valuable in the case of monitoring, protection and recovery activities. Currently, despite the efforts of the European Commission, a shared collection of data on the trafficking of cultural assets has not yet been compiled, nor has coherent legislation been defined, which would not only facilitate relationships within the union, but would also guarantee greater strength to international agreements on recovery operations. Italy is particularly vulnerable as its cultural heritage is only partially kept in museums. Therefore the fight against illegal misappropriation and trafficking in cultural goods cannot limit itself to recovery operations. Preventive measures need to work on public awareness with regard to the perception of cultural assets as belonging to the community and not simply being considered as merchandise.
Can the authentication of works of art contribute to the protection of the artist from alterations to art works and from fakes? What role and responsibilities can experts in this field have?
Certainly it can help. The responsibility of the experts is fully-fledged professional responsibility and is therefore subject to possible liability claims. A famous case in question is that of the fake De Chirico, decided by the Supreme Court in 1982, in which a painting was certified as authentic by De Chirico himself, despite being a fake. As is well known, De Chirico was sentenced to pay damages to the misled purchaser. However, it is also useful to remember that for the digital circulation of art works, not only technology, but also the law now allow the use of techniques that guarantee the origin and integrity of the works. This is, by way of example, the electronic seal and the timestamp, also regulated under recent European Regulation 910/2014, as well as the digital brand, which has been known for some time.
In your opinion, what are the positive and negative sides to the Italian legal framework regarding the arts and our cultural heritage?
Italian legislation, consisting mainly in the Copyright Law and the Cultural Heritage Code is wide ranging and complete. It is also mostly applicable to the current market, online included, and to the safeguard of digital artworks. Of course some adjustments and updates would be welcome, for example those aimed at providing broader authorship criteria, including those works which are the result of a shared creative process, as is increasingly the case online. The limit, as often happens in Italy, is the at times overly formalistic approach to the application of current legislation.
Here is the interview with Giusella Finocchiaro recently published in “Il giornale dell’arte”.
As a lawyer, how would you define art and its various forms of expression today?
There is no legal definition of artwork. Art itself defies definition. This does not mean that there are no legal instruments to protect the original creation, leaving aside all critical or aesthetic assessments, which belong to other fields of expertise and knowledge. The main Italian law which may be applied to art is that regarding copyright dating back to 1941, which models itself on the romantically based approach of French legislation, focussing on the author, in contrast to the Anglo-Saxon approach. The law on copyright, framed in such broad terms that it can also be applied to contemporary art and its various forms of expression, states in art. 1 that “(the following) are protected (…) intellectual works of a creative nature pertaining to literature, music, figurative art, architecture, theatre and cinematography, whatever be their mode or form of expression”. The same law goes on to list in art. 2: literary, dramatic, scientific, educational and religious works, both in written and oral form; musical works and compositions; works of choreography and pantomime; works of sculpture, painting, drawing, engraving and of similar figurative arts, including scenic design; architectural designs and works; works of cinematographic art whether they be silent or with sound; photographic works; and then also software and databases. Therefore any form of expression, provided it is of a creative nature, can be protected.
How do you see the circulation of cultural assets and the transformation of the art market and its players in the Internet age?
The Internet has widened the market and made it more mobile, but also more accessible to those with less experience, who therefore need adequate protection and information. This situation once again raises issues well known to operators in the field of e-commerce: namely the problem of the applicable law, the competent court, the electronic form of the contract, the protection of the weaker party and so on. Specialized law firms already have extensive experience of all these issues, but the online market is also a great opportunity for companies and artists. Nor should we forget either digital art, which creates a form of expression of digital technology, or its target market.
What windows are opportunities are created by new funding methods in the art market such as investment funds and cultural crowdfunding, for example?
In the last decade we have seen a growing interest in investment funds in the art business that reached peak levels in 2014. These investments are highly attractive as they allow diversification of investment portfolios and, at the same time, they give the individual investor the feeling of being the owner – even if partially – of great masterpieces that would otherwise be the prerogative of only an elite few. However, it is just as well to remember that these investments are not risk-free. This type of financing has certainly brought an injection of new blood to the traditional art market. Of quite a different nature, crowdfunding for art projects is usually reserved for financing non-commercial cultural projects. At a time when public funding for artists is constantly decreasing, crowdfunding represents a form of survival for non-profit projects.
In recent years thanks to this type of financing, innovative projects have been developed, which would have had great difficulty attracting interest on the part of traditional investors. For example the Nikola Tesla Museum in New York comes to mind, which was built thanks to a crowdfunding campaign on the Indiegogo platform, on which almost two million dollars were collected in six days. In Bologna we have had an interesting crowdfunding campaign in support of the restoration of the famous Portico di San Luca, which has been most successful.
What is the role of artistic patronage and what are the current trends?
Italian legislation promotes donations directed to art and facilitates their tax deductibility. However, individual private donations are related to the state of the economy and do not always put the art and culture sector first. In the contemporary art system traditional cultural patronage has already undergone significant changes, characterized by the appearance of art foundations, which are able to merge together private resources for the implementation of projects and activities in support of the public cultural heritage. In recent years, a new type of patronage has created an opening for particular forms of collaboration and hybridization, involving cultural institutions with new business skills and advising large groups to invest in works of considerable cultural value. It is well known that some of the most famous historical monuments have been restored thanks to donations. The interesting formula of “adoptional” patronage can also be added to these solutions, which is a miscellaneous category of concrete cases still in search of a precise fiscal and juridical arrangement. In fact, while the different varieties of sponsorship are governed by a negotiable contract and in the case of simple patronage the investor’s return is measured in terms of prestige, the case of “adoptional” patronage stands out on account of the absence of any return linked to the use of the image of the artwork or of its “privatization”. In the adoptional formula, in the absence of contractual ambiguity and of the provision for compensation, the contribution of the private individual should simply look to protect and increase the value of a cultural asset.