Art And Cultural Heritage Dispute Resolution

The pursuit of the arts and the preservation of cultural heritage are noble causes, but that does not make them immune to dispute. Quite the contrary - conflicts in this area are as abundant and multi- faceted as the wealth of works they concern. From fine or applied arts to sculpture or musical creations, from historical or contemporary works to traditional cultural expressions (TCEs, or "expressions of folklore") or commercial blockbuster films - no area is untouched by discord.

Because these disputes often have distinct features, stakeholders tend to look for creative approaches, such as alternative dispute resolution (ADR).

Stakeholders and subject matter

A variety of players are concerned - anthropologists, archivists, art and antique dealers, artists, collective rights societies, auction houses, collectors, cultural institutions, distributors, art experts, galleries, indigenous communities, individuals, industries, libraries, museums, publishers, states, universities - the list is endless. Opportunities for dispute are also endless, and on a multitude of subjects.

Contractual disputes, for example, may arise over artist representation agreements, copyright licenses and assignments, donation, loan and sale agreements. Non-contractual disputes may pertain to access to and benefit-sharing of TCEs and/or traditional knowledge (TK), authenticity, control over a work or cultural object, digitization, documentation, resale rights, restitution, unauthorized representation, reproduction or use.

For example, disputes may arise between:

a museum and a researcher over the reproduction of a work from the museum's collection;

an auction house and the seller of a work of art over its authenticity; or

an indigenous community and a museum over the digital reproduction of confidential traditional ceremonial songs.

Nature of issues

A single dispute may combine issues both tangible and intangible in nature. An indigenous community, for example, may be in conflict with a museum regarding the return of an object (tangible) they believe was originally created by their community but which is now in the museum's collection. Copyright questions (intangible) may arise if the museum has reproduced the cultural object in publications.

Art and cultural heritage disputes are often multidimensional, involving not only complex legal issues, but also sensitive, not necessarily legal elements, of an emotional, ethical, historical, moral, political, religious, or spiritual nature.

For example, sensitive issues arose in the Australian "carpet case", ¹ where industrial carpet manufacturers were reproducing works of indigenous artists without their authorization. The artists' works incorporated images and TK belonging to their community. This was a very delicate case, because according to customary law, the artists could be held responsible by their community if a third party makes inappropriate use of the traditional images, resulting in communal sanctions of the artists. In addition, a moral issue arose, as the carpets did not reproduce the artists' works in their integrity.

While this case was decided in court, which applied copyright law, ADR could also have been an appropriate avenue to settle...