Legal Issues in Cultural Heritage Management

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I.  “The economics of cultural heritage protection law” or the Loch Ness Monster

It happens very rarely that arguments related with law, economics or cultural heritage arouse the interest among those who are not professionally involved in them. The creation of economic models or the refining of legal concepts can be as boring to the average reader or listener as the fourth hour of a guided tour in a museum. Each of these disciplines not only uses its own hermetic language but also implies a starting point which is not accepted by other disciplines that assume different points of view. Each discipline is quite sensitive about its assumptions and keen to point out mistakes made by researchers from other disciplines. For example, economists sharpen their knives and become quite sensitive about the use of terms such as economy and the economics of culture.¹ Lawyers, in turn, are sensitive about the conceptual ranges of terms such as monument, cultural property or heritage. There are numerous recurring questions e.g. what is heritage management? Can it be distinguished from culture management and, if so, how, etc.?

The situation gets even worse when one tries to combine the three elements and create something in the nature of “the economics of cultural heritage protection law”, a kind of hybrid in which both the assumptions, arguments and conclusions ought to take into consideration the fact that all these elements permeate each other. The hybrid could be compared to the Loch Ness Monster, because everyone denies its existence and at the same time would like to believe that they would be the one to prove its existence, just as they would ‘discover’ an exceptional model of heritage management. Furthermore, even if many researchers claim there is nothing to discover, it is still worthwhile to research, analyse and spend time on it. Just as the very image of the Loch Ness Monster is useful for the tourists and local people making a living from the legend, so is “the economics of cultural heritage protection law” useful for political decision-makers or directors of cultural institutions ← 7 | 8 → for implementing and explaining changes (or stopping them) or for the critics of the current model of heritage protection. Every researcher has his own idea of the importance of law and economics in relation to cultural heritage just as everyone imagines the Loch Ness Monster in their own way and no one really knows which one is the absolutely true and final one. There is only agreement as to its general image and to the general assumptions about the way economics, law and cultural heritage influence each other. The only difference between the Loch Ness Monster and the hybrid of “the economics of cultural heritage protection laws” is the amount of data available, in the former case rather minimal and in the latter in an overabundance which prevents the uniform tracking of the influences of individual factors. Despite the extreme differences the results are the same in both cases as one can never completely recreate reality (you cannot analyse data either too limited or overabundant) but that does not mean that there is no point in studying these issues. On the contrary, each new study in this field allows us to accumulate arguments in favour of the importance of the particular disciplines of economics, law and cultural heritage and the need to fill the gaps that have appeared in the process of their development or their isolation.

It is worth noting here that the Loch Ness Monster as such also belongs to cultural heritage, most definitely to world heritage, which is also confirmed by law (intangible heritage protection law) and by economics (the supremacy of the benefits over the costs of its supposed existence).

In the case of a hybrid such as “the economics of cultural heritage protection law” every researcher representing one of these disciplines will strive to prove the superiority of his or her discipline over the other two as, broadly speaking, law, economics and cultural heritage have always existed as distinct spheres of human interest. Their combination can be accidental (or intentional) but is not of the greatest importance for either of them. A very particular type of personification, which helps to spark the imagination, has been proposed by David Throsby, an economist who specialises mainly in the economics of culture. In his argument, economics could be represented by a not terribly attractive man with a tendency to verbosity, while culture could be personified by a wise and unpredictable woman. These two meet at a party. David Throsby posed a number of questions. To what extent would they be interested in each other? Would they start seeing each other? What kind of relationship would there be between them?² Throsby’s idea is so original and imaginative, even to people not connected with these disciplines, that it is worth further expansion, with the help of personification to demonstrate ← 8 | 9 → the relations between economics, law and cultural heritage. Such an experiment was carried out during a lecture on cultural heritage protection at the Faculty of Law and Administration of Adam Mickiewicz University in Poznań. Following Throsby’s idea, economics would be personified by the not so attractive, slightly dishevelled and talkative man, with a tendency to hypochondria, cultural heritage by the aforementioned interesting woman and law was by a self-confident man, overdressed and probably over the top in other respects too. These three people meet at a party. Which of these two men would the woman choose to talk to first? Which of the two men would approach her first? The students unanimously chose the attractive man, i.e. law. They did not seem to realise that the rightness of this answer cannot only be explained by the personal relationship but could also be translated by the direct ties between law and heritage. It may sound rather paradoxical but it is law that creates cultural heritage by its choice of objects, as well as the scope and subject of protection. The lack of precision in the terminology in statements made by representatives of disciplines such as the history of art, sociology, cultural studies or architecture makes it untranslatable into legislative acts and gives law the dominant position in setting the framework of heritage protection.³ Historically, this relationship is the older one, although not necessarily the more stable, and is still evolving. It is only in the next phases that economics has become interested in cultural heritage.⁴ It was as late as the 90s of the 20^th century that such institutions as the World Bank mentioned culture in their documents as well as cultural heritage as basic elements of economic development.

The woman might flirt with both men as she would find each one interesting and, moreover, useful.

a) She would consider economics as the justification of her existence and an unverifiable form of GDP creation through culture, including cultural heritage. In addition, it is axiomatic in economics that cultural heritage and its most precious monuments can only be viewed in relation to costs; benefits are considered guaranteed because of their practical and also non-practical value (existential, optional and inherited) and other external factors.⁵ ← 9 | 10 → Additionally, economics would work as a type of barrier against the law, which ought to reckon with economics. Sometimes the ideas of political decision-makers to increase standards of heritage protection can lead to catastrophic results for heritage⁶ especially when the financial consequences of protecting too many monuments and direct and indirect costs are incorrectly calculated.

b) She would find law attractive as a way of advertising her own existence but also as protection against economy, which, with easy access to cultural heritage resources without any legal constraints, would try to measure and improve it on the basis of its own criteria of cost effectiveness. Thus the ‘flirting’ of heritage with economy and law would be profitable for the former but could also turn out dangerous if one of these disciplines were to gain total dominance in cultural heritage. We can find examples of this in the modern world.

Thus in cases of the pre-eminence of economy we have witnessed closures of public museums in the German Lands because of excessive costs and a lack of interest on the part of the general public which favours private museums (offering more interesting museum architecture or art narrative)⁷, or the idea of selling museum exhibits by the Detroit Institute of Art (DIA) as a result of the bankruptcy of the city itself.

In the scenario where law is pre-eminent we have seen a new form of heritage protection in Poland, known as the List of National Treasures, with no definition of heritage treasure as such and with violations of the principle of proportionality between heritage protection and private ownership, which allows for an ex officio entry on the List of a movable monument despite the owner’s objections or, in special circumstances, the takeover of a movable monument by the State.⁸ ← 10 | 11 → It can thus be said that relationships and processes in the field of heritage protection exist also in the economic and legal spheres and are interpreted accordingly in their respective categories. This is why it is so important to prevent, on the one hand, heritage being turned too much into a commodity (a tendency of economists who like to ask about the economic value of heritage) and, on the other, the process of ”tethering” by law practised by lawyers who invent more and more new forms of protection or who introduce new concepts without establishing their relations with existing ones or who overinterpret heritage protection in view of a lack of clarity in legislative acts.

At this point it is worth noting another process which has been intensifying along with the ‘heating up’ of the discussion on the economic importance of culture and the systematisation of the cultural and creative industries. Owing to the conventionality and ambiguity of the term ‘heritage’, many researchers like to create new cultural spheres and a hierarchisation of this sector in their search for ever stronger ties between culture and economy. These studies are based on the research carried out by KEA European Affairs for the European Commission and show how culture and the creative sector significantly influence information and communication technology as well as tourism and related sectors. Thus cultural heritage seems to be embedded in the cultural and creative industries and makes full use of the economic benefits of the culture sector.⁹ Although the hierarchisation of the sector might raise some objections, in practice it is beneficial for cultural heritage as it implies an imperative to:

– finance heritage as if it were a type of kernel of the creative industries and consequently to have to draft heritage protection finance policies;

– justify the need for state intervention in this sector;

– create and sustain public awareness of the importance of culture in its broadest sense but also of cultural heritage as essential not only for future generations but also for contemporary generations because of their ability to create symbolic, historical, and also economic added value.

The observations made at the ‘party’ attended by cultural heritage, economics and law allow us to see the role of law as constitutionalising heritage by defining its protection and its importance in relation to the economy. It is worth noting here that law wears two types of suits at the same time when meeting heritage. The first is made for all sectors of the economy, including cultural heritage, the ← 11 | 12 → second has been cut specifically for heritage itself. That is why law often looks ridiculous wearing two suits between which there are certain inconsistencies, which might have adverse consequences for heritage. Such a situation has occurred in Poland with respect to the purchase of a work of art (cultural property) from an unentitled vendor. Under Art. 169 § 2 of the Polish Civil Code purchasing an object of art from a vendor who is not its legal owner (unentitled vendor) may be deemed legal and result in the purchaser acquiring ownership of the object if the following conditions determining the validity of the sale have been fulfilled: i.e. the transfer of the object and good faith on the part of the buyer. Until 1990 these regulations had not been used in the evaluation of the disposal of state-owned properties. At that time Article 171 of the Polish Civil Code covering these situations was waived and now Article 169 of the Polish Civil Code applies to any type of ownership, including the trading of cultural property. No specific regulations similar to the Italian or French ones were introduced at that time either. Neither the amendment of the existing Act on the Protection of Cultural Property from 1990 nor the new Act of 2003 (APGM) or the very new regulations on museums have interfered to any degree in the principles of acquisition of cultural property based on the civil law regulations. The numerous problems that have appeared as a result of applying these articles and the unfavourable situations for the ‘primary’ owners have been pointed out and criticised in studies of this subject.¹⁰ Changes in this legislation were introduced only in 2015 in connection with the introduction of the new legislation on unclaimed property and with the establishment of the National Register of Lost Cultural Property.

The dominant position of economics in the modern world has turned the economic type of reasoning into an indicator of rational thinking which is why it is possible to talk about the culture of ‘economic self-confidence’. However, the ‘culture of self-confidence’ is not alien to law and, in my opinion, is more and more reinforced, not by the strength of the argument (the ‘rational employer’ which seems to be the only assumption first year law students have drummed into them has been turning into a myth) but by the force of the ‘legislative authority’ of the ← 12 | 13 → state, represented in the first place by political decision-makers and less so by the lawyers. The culture of the ‘self-confidence’ of law creates a mental barrier preventing full understanding of the consequences of cultural heritage protection law. One could quote here the system of export permits of cultural property which operated in Poland between 2003 and 2010 and certificates stating that no permit is required to export an object. The simultaneous existence of a high fee payable to obtain an individual export licence and the inability to control the export of cultural property in practice via the southern and western borders of Poland since 2007 has created a discrepancy between the legislative aims (i.e. increased heritage protection by restricting export) and reality. The number of export permits has gone down but the rate of smuggling out of cultural heritage property has gone up. Already at the stage of formulating these regulations many experts pointed out their ‘paper’ value; nevertheless political decision-makers paid no heed to those objections when passing the new laws.