Sonia Katyal, Professor of Law at University of California Berkeley has authored a fascinating new article titled, Technoheritage in Volume 105 of the California Law Review. She engages with some of the interesting overlap between cultural property and intellectual property along with the physical and the digital.
Here’s the abstract:
This Article explores the legal revolution that is swiftly unfolding regarding the relationship between technology, user interactivity, and cultural institutions, both inside and outside of the law. At the same time that cultural properties are facing destruction from war and environmental change, we are also living in an age of unprecedented interactivity and reproduction—everywhere, museums are offering their collections for open access, 3-D printing, and new projects involving virtual and augmented reality. With the advent of other sophisticated forms of digital technology, the preservation and replication of antiquities have never been easier.
Today’s archaeological moment demonstrates both the possibilities and limitations behind “technoheritage”—the marriage of technology and cultural heritage. Toward that end, this Article argues that, in order to understand the relationship between technology and cultural heritage, it might be helpful to study the theoretical dimensions behind interactivity itself. Just as technology has the power to preserve and protect ancient artifacts, it also invites a dizzying array of legal conflicts over their digitization and replication, particularly with regards to the intersection of copyright law with cultural identity. Unpacking this further, this Article offers a tripartite taxonomy of interactivity: the first, described as extractive (drawing upon the accumulation and selection of data); the second, immersive (drawing upon new forms of user participation through virtual and augmented reality); and the third, derivative (drawing upon new possibilities of user creation). Normatively, I argue that these models of interactivity provide us with an important framework with which to examine the importance of copyright protection for cultural heritage. In the concluding section, I suggest a potential way of rethinking the museum by drawing on the logic and legal protection extended to databases and archives in an age of unprecedented user interactivity.
Some troubling news in London reveals that Scotland Yard may see an uncertain future for its Art and Antiques Unit. The offices who had been assigned to the unit have been reallocated to investigating the Grenfell Tower tragedy. This is a shame, as the unit is one of the world’s longest-running art crime policing units, with some terrific prosecutions of note, including the Jonathan Tokeley-Parry conviction (which set the stage for the Fred Schultz conviction in the United States), the discovery of the myriad art frauds committed by the Bolton Forgers, and many other notable initiatives.
Martin Bailey reported for the Art Newspaper that:
Vernon Rapley, who led the Art and Antiques Unit from 2001 until 2010, told The Art Newspaper that he is “worried that the closure of the unit is now being considered”. He added: “I am very concerned that the Metropolitan Police is unable to give assurances on when the three detectives who have been temporarily reassigned will be returned to the unit.”
The three officers are detective constables Philip Clare, Sophie Hayes and Ray Swan. There is currently no detective sergeant responsible for the unit, following the departure of Claire Hutcheon last March.
James Pickford in the Financial Times also noted the importance of the unit to the United Kingdom’s licit art trade:
Dick Ellis, founder and former head of the art squad, said: “To close — if it is to be closed — a small but very specialised unit at Scotland Yard, which is there among other things to assist other countries, is madness.” He added the squad had been closed once before, in 1984, for budgetary reasons, but reopened again in 1989 following pressure from other international forces and the art market. One issue at the centre of concerns about the possible closure of the Met art unit is the fight to prevent looted or stolen antiquities from the Middle East being used to fund terrorism. The unit works with overseas forces to identify illicit trafficking of cultural goods, and can take action when UK-based dealers and auctioneers relay their suspicions about objects of questionable provenance. It also maintains the London stolen arts database, which stores information and images of 54,000 items of stolen property. The UK had a 21 per cent share of the $56bn global art market by value in 2016, second only to the US with 40 per cent, according to research by Arts Economics, a consultancy. One art market professional who had dealt regularly with the Met art unit over the past decade described its detectives as “dedicated and knowledgeable”. “If that unit is lost it would be a great concern for the art market,” they said.
Ben Quinn’s piece in the Guardian sheds light on an interesting forthcoming conference which hopes to “establish a permanent display” of Benin material in Nigeria. The Benin bronzes are in many museums in the West, and viewing them gives me to very different reactions. On the one hand, they are terrific to look at, with wonderful detail. But on the other, many of these objects were seized by the British Empire during an 1897 Punitive Campaign. That campaign was as bad as it sounds. To give a brief overview, a British official and his advisors were sent to uncover whether there was ritual human sacrifice taking place in the Kingdom of Benin. When the official and his advisors were killed by the King of Benin, the British responded by destroying the city, and looting as many as 900 of the Benin bronzes to compensate for the costs of the exhibition. Many of these objects were purchased by museums.
Nigeria has requested the return of much of this material, but the museums and collectors who currently possess them have often refused to enter into a dialogue. These negotiations for the return of material can be difficult and contentious, but they do not have to be. Here is hoping the meeting, which will take place in the Netherlands’ National Museum of Ethnology in Leiden will lead to a productive dialogue in the same way that Yale’s return of material to Peru or the Native American Graves Protection and Repatriation Act operates.
Quinn’s story highlights the ethical case driving the dialogue, but also some of the challenges:
“I think that among this generation of curators there is an eagerness to find ways towards reconciliation,” said Dr Michael Barrett, senior curator at Stockholm’s Världskulturmuseet. “We are one of the smaller participants in this and it is very early but we are eager to continue with discussions.”
Among the issues still to be resolved are insurance costs and security arrangements. European curators and their west African counterparts are also keen to establish a legal framework that would guarantee the artefacts immunity from seizure in Nigeria.
John Picton, a professor at Soas University of London (formerly the School of Oriental and African Studies) and a former curator of the National Museum in Lagos, said: “The moral case is indisputable. Those antiquities were lifted from Benin City and you can argue that they ought to go back. On the other hand, the rival story is that it is part of world art history and you do not want to take away African antiquity from somewhere like the museums in Paris or London, because that leaves Africa without its proper record of antiquity.”
Yesterday Tom Mashberg reported in the NY Times that the Met would be returning this Greek krater to Italy. The Met has returned many objects to Italy in recent years, because they have been looted from tombs and archaeological sites before being smuggled abroad.
The interesting aspect of the story here appears to be the very slow response on the part of the Met to questions presented by Tsirogiannis. Tsirogiannis told the NY Times that the evidence: “[S]uggested that the item was disinterred from a grave site in southern Italy by looters,” before it passed on to Medici.
Medici was an antiquities dealer, convicted of trafficking in illicit cultural objects, and many objects which passed through his gallery/collection/storehouse have been deemed illicit. Reached by Mashberg for the story, Medici said:
[H]e had no recollection of having handled the vase in question. “Absolutely not,” he said. He said he had been released from house arrest last year after serving half of an eight-year sentence that was shortened by time off for good behavior and a two-year amnesty provision granted to all Italian prisoners.
“I am a free man,” Mr. Medici said. “I went on trial, it lasted years, I was convicted for some of the objects” that Italian prosecutors believed had been looted, “and now I have nothing more to do with the justice system. The story is finished.”
Antiquities dealer Hichaam Aboutaam brought a civil libel complaint against the Wall Street Journal on Monday. That article, which according to Aboutaam’s complaint had been in the works since at least January of this year, discussed the antiquities trade and ISIS involvement in it. The article reported on the separate investigations by Belgian and Swiss authorities of antiquities dealers, including Phoenix Ancient Art, the antiquities gallery with locations in New York and Switzerland which Aboutaam runs with his brother Ali. Sourcing for the Wall Street Journal perhaps came from law enforcement officials in those countries, though they are not named. The article also reported on the looting taking place in Iraq and Syria, and on the efforts by ISIS to profit of antiquities looting. The piece made no allegation that the antiquities sold or controlled by ISIS are handled by Aboutaam or Phoenix ancient art. But the complaint alleges that the juxtaposition of the two stories amounts to libel. The allegation by Aboutaam was that the piece:
[P]urported to link Plaintiff with ISIS funding through defamatory statements and manipulative juxtaposition of information about Plaintiff with unrelated information about ISIS funding activities.
Federal prosecutors in Brooklyn have announced a civil forfeiture proceeding against 5,500 objects from Iraq. The current possessors of the objects have also quickly announced they will not contest the forfeiture, and have agreed to pay a $3 million fine. The objects were imported by Hobby Lobby and its president, Steve Green, to create the Museum of the Bible in Washington D.C.
The Museum of the Bible, set to open in November near the National Mall in Washington D.C., has been rapidly acquiring antiquities from the Middle east for the last several years. History shows this kind of rapid acquisition with generous financial backing will inevitably lead to buying objects which may be looted, illegally exported, stolen, or orphaned. The questions surrounding the quick acquisition of all these objects has generated speculation for many years that these objects would cause legal difficulties for the museum.
The government’s civil forfeiture complaint tells a fascinating story of how Green traveled to the United Arab Emirates in July of 2010 and agreed to purchase 5,548 objects, including “500 cuneiform bricks, 3,000 clay bullae, 35 clay envelope seals, 13 extra-large cuneiform tablets, and 500 stone cylinder seals”. These objects were then then shipped via Federal Express to Oklahoma City to various different addresses of Hobby Lobby and its subsidiaries. The complaint notes an important reality of customs—not every shipment raises suspicion. Only some of the shipments of this material were seized by customs agents. Five shipments which traveled through Memphis, Tennessee were seized between January 3-5 of 2011. Other shipments successfully reached their destination in Oklahoma City.
I have a few initial thoughts on the Council of Europe’s proposed antiquities convention at the Georgetown Journal of International Law online. Here’s just the introduction:
On Friday, May 19, the Committee of Ministers of the Council of Europe will meet to open a new treaty for signatures on a new Convention on Offences relating to Cultural Property. Given that the Council of Europe now has 47 member states, including both Russia and Turkey, the impact of this new Convention could be immense. This is particularly true given that the member states of the Council of Europe include art-acquiring states, transit states, and states with ancient monuments. The Convention may even allow any non-Council state to sign on to the Convention. The work of this draft Convention could catapult the member states of the Council of Europe to the head of the pack in embracing the complementary international conventions aimed at stemming the illicit trade in cultural property.