Diritto & Internet

Art through the eyes of the law – 2nd part

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.

[Click HERE for the first part of the interview]

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Scientific Director
Prof. Avv. Giusella Finocchiaro
Editorial Curator
Dott. Giulia Giapponesi

Lo Studio Legale Finocchiaro prosegue la sua attività con DigitalMediaLaws, la nuova società tra Avvocati fondata dalla Prof.ssa Avv. Giusella Finocchiaro e dal Prof. Avv. Oreste Pollicino.

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