V. THE ART TRADE AND APPRAISERS
The Art Trade
Few people know that the earliest information networks to combat the illicit trade in cultural objects were those established by the art trade. One of the first trade organizations to dis-tribute information about stolen objects was the Art Dealers Association of America (ADAA), which began to circulate notices on art thefts to its members in 1962. The service provided by the ADAA was gradually extended to include non-member dealers and auction houses, museums, police departments, insurance companies, the FBI, U.S. Customs Service, and international law-enforcement agencies. From 1963 to 1969 the ADAA issued its notices on stolen and missing works by memorandum, but in 1969 the system was formalized and a numbering system was established. In 1986 the ADAA published its last notice, at which time it made its records available to the International Foundation for Art Research (IFAR).
IFAR was founded in 1969 as a not-for-profit organization. In 1976, it set up an Art Theft Archive and began to collect stolen art reports. Since 1985, the foundation has published IFAR Reports, a newsletter that provides information about recently reported catalogued stolen art, and carries articles on art theft and authentication. In 1991, IFAR licensed the newly founded International Art Loss Register (ALR) to use its records in that organization's computerized database of stolen art and antiques.
The Art Loss Register, which is based in London and New York, was established in 1991 to provide the following services:
a permanent computerised database of stolen art with images which enables the identification and recovery of stolen art prior to sale when it appears on the art market for auction, when the police recover property believed to be stolen but need evidence to prove their suspicions, and when dealers, museums, galleries and members of the public search the database prior to purchasing works of art, antiques and valuables.1
The ALR is supported by the art trade and includes among its shareholders the major auction houses Sotheby's, Christie's, Phillips, and Bonhams, and a number of trade organizations, including Confédération Internationale des Négociants en Art (CINOA), Society of London Art Dealers (SLAD), the British Antique Dealers Association (BADA), and the Society of Fine Art Auctioneers (SOFAA). In addition, 193 insurance companies in Europe, North America, Australia, and New Zealand subscribe to the ALR.
Another major private sector initiative aimed at recovering stolen art and antiques is Trace magazine, established in 1988 and distributed to readers in 172 countries. Trace provides information about stolen art and antiques and carries articles on aspects of art theft. In 1994 it became part of the Thesaurus group,2 and in 1995 the Tracer database of stolen objects was established. Items registered on this database are checked against Thesaurus's database of auction catalogues from over 450 auction houses in the U.K., as well as catalogues from a number of auction houses in the U.S.
One of the most recent initiatives aimed at combatting art theft to be sponsored by a sector of the trade is the Register of Stolen Antiquities, established in 1994 by the International Association of Dealers in Ancient Art (IADAA). The main purposes of this Register are to help the victims of theft to recover their property, and to protect the antiquities trade from the unintentional purchase of stolen art. In designing its system, IADAA has sought to produce "a tool which is simple and effective in the hands of those who will be the first to be confronted with stolen art, the trade."3
The art trade and the growing number of information-brokering companies that serve both dealers and collectors have begun to recognize the potential of the Internet as a means of communicating with customers. Although the use of the Internet as a commercial market place is still in its infancy, a growing number of auction houses and dealers now have World Wide Web sites. Indeed, organizations associated with the trade have taken the lead in putting information about stolen objects on the Internet, examples of which are the Maine Antique Digest (http://www.maineantiquedigest.com); Trace (http://www.trace.co.uk); and SALVO, an organization representing dealers in architectural and garden antiques (http://www.salvo.co.uk).
The trade is also actively involved in a number of not-for-profit organizations that have been established to combat the illicit trade. These include the Council for the Prevention of Art Theft (CoPAT), established in the U.K. in 1990, and the Society to Prevent Trade in Stolen Art (STOP), established in 1995 and based in Washington, D.C. CoPAT is an independent organization that promotes crime prevention in art, antiques, antiquities, and architecture.4 It comprises a number of specialist committees that draw their membership from the art trade, owners of historic houses, the insurance industry, the legal profession, the media, police, and experts in various aspects of crime prevention. STOP works to combat the illicit trade in stolen and fraudulent works of art "through a variety of educational, referral, and organizational programs."5
The associations representing art dealers also seek to combat the illicit trade by encouraging proper business practices, for example, through codes of ethics and codes of practice. A num-ber of national and international organizations representing the trade now have such codes.6 These non-statutory codes are not legally enforceable, and rely on non-legal sanctions to ensure compliance with the norms of conduct they require. They are taken into consideration by a court only insofar as the code is accepted as indicative of good practice in a particular sphere of activity.7
Increasingly, courts refer to codes of practice and codes of ethics to establish whether or not due diligence was exercised in particular cases. In the context of buying art objects, exercising due diligence has been defined as "a phrase which, by usage and custom, has come to mean taking care by all reasonable means available that you do not knowingly purchase an item which has been reported as stolen property or which by its very nature, may have been illegally obtained."8 In recent years the concept of due diligence has become more clearly established through written decisions in various court cases concerning personal property.
The importance of practicing due diligence is underlined by the European Union's Regulation on the Return of Cultural Objects, article 7(2) of which states that a court shall not order payment of compensation to a possessor of a returned object "unless it is satisfied that the possessor exercised due care and attention in acquiring an object."9 Similarly, article 4 of the UNIDROIT Convention on Stolen and Illegally Exported Cultural Objects (1995) states that the possessor of a stolen cultural object who is required to return it shall be entitled to fair compensation only if it can be proved that he or she "exercised due diligence when acquiring the object."10 In 1996 the Council for the Prevention of Art Theft (U.K.) undertook to establish the principle of due diligence in all transactions through art and antique dealers by providing them with a voluntary code of conduct.11
The existence of adequate descriptions of objects is an essential prerequisite for any workable system of ascertaining whether due diligence has been exercised. The UNIDROIT convention, for example, states that "In determining whether the possessor exercised due diligence, regard shall be had to the circumstances of the acquisition, including the character of the parties, the price paid, whether the possessor consulted any reasonably accessible register of stolen cultural objects, and any other relevant information and documentation which it could have reasonably obtained."
Questionnaire Survey of the Art Trade
The views of the art trade and appraisers of personal property were ascertained by two major questionnaire surveys. In conducting the survey of art dealers, the Getty Information Institute was greatly assisted by the cooperation of the following organizations: Art and Antique Dealers League of America; l'Association Syndicat Suisse des Antiquaires et Commerçants d'Art; Chambre Syndicale de l'Estampe, du Dessin et du Tableau (France); Associazione Antiquari d'Italia; British Antique Dealers Association; Confédération Internationale des Négociants en Art (CINOA); Dansk Kunst og Antikvitets Handel (Denmark); International Association of Dealers in Ancient Art; Irish Antique Dealers Association; London and Provincial Antique Dealers Association (U.K.); Private Art Dealers Association (U.S.A.); Private Art Dealers Association of Canada; Society of London Art Dealers; Swiss Art Trading Association; and the Syndicat National des Antiquaires (France). Responses to this survey were received from 181 dealers' associations and individual dealers in 13 countries.
The survey revealed strong support for those categories of information identified for inclusion in the Object ID checklist. Eight categories were agreed to by 90 percent or more of respondents, and two by between 80 and 90 percent. Only one of the elements of Object ID, the recommendation to write a Description of the object (79%), was agreed to by less than 80 percent of those surveyed (see Table 6). Object Name (94%) and Related Written Material (82%) were the only categories agreed to by more than 80 percent of respondents that were not included in Object ID.
A number of respondents wrote of their concern about Normal Location of object and Estimated Value, arguing that both were unacceptable from the point of view of security and confidentiality. In any case, there was no consensus on the importance of either of these categories, with Normal Location scoring only 64 percent and Estimated Value 56 percent. Suggestions by respondents for additional categories of information that might be useful to dealers included the following: provenance and exhibition history, brief biographies of makers, and information about any restoration work that might have been carried out. A point made by several respondents was that the new standard should be as short and simple as possible to use. One dealer pointed out that "the more questions you put, the fewer replies you will receive."
Table 6. Summary of Findings of Questionnaire Survey of Dealers in Art, Antiques, and Antiquities Category of Information Percentage
Measurements 98 Materials & Techniques 97 Inscriptions & Markings 97 Date or Period 96 Type of Object 95 Maker 95 Object Name 94 Photographs 93 Title 90
Distinguishing Features 88 Subject 85 Related Written Material 82
Description 79 Date Documented 79 Condition of Object 74 Place of Origin/Discovery 73 Cross Reference to Related Objects 73 Object ID Number 72
Normal Location of Object 64 Recorder's Name 64 Custodian of Object 62
Estimated Value 56 Legal Status of Object 52
Object ID categories are in bold.
1 International Art & Antique Loss Register Ltd., 1993/1994 Annual Review (London, 1994). For more information about the Art Loss Register, contact The Art Loss Register, 13 Grosvenor Place, London, SW1X 7HH, UK, Tel: +22.214.171.12493, Fax: +171.235.1652, E-mail: GBNV5BH5@IBMMAIL, or The International Foundation for Art Research, 46 East 70th Street, New York, NY10021, USA, Tel: +1.212.879.1780, Fax: +1.212.734.4174, or visit the ALR's Web site at http://www.artloss.com.
2 Thesaurus was established in 1989 to monitor sales catalogues on behalf of collectors. For more information contact: Thesaurus Information, Mill Court, Furlongs, Newport, Isle of Wight, PO30 2AA, U.K., Tel: +44.1983.826000, Fax: +44.1983.826201.
3 For more information about the IADAA Register contact David Cahn, IADAA Archives, H.A.C. Kunst der Antike, Malzgasse 23, CH-4052 Basel, Switzerland.
4 For more information about CoPAT write to the Secretary, CoPAT, 17, Whitcomb Street, London, WC2H 7PL, U.K.
5 Society to Prevent Trade in Stolen Art: Our Mission (Washington, D.C.: STOP, 1996). To find out more about STOP write to STOP, 918 16th Street, NW, Suite 400, Washington, D.C., 20006, U.S.A., or visit STOP's Web site at http://www.stop.org.
6 Confédération Internationale des Négociants en Art (CINOA), Syndicat Suisse des Antiquaires et Commerçants d'Art, Association du Commerce d'Art de la Suisse, Comité des Galeries d'Art, Chambre Syndicale de l'Estampe, du Dessin et du Tableau, Syndicat National des Antiquaires Négociants en Objets d'Art, Professional Art Dealers Association of Canada, National Antique and Art Dealers Association of America Inc., Art and Antique Dealers League of America, International Association of Dealers in Ancient Art, United Kingdom Code of Practice for the Control of International Trading in Works of Art (parties to this code are Christie's, Sotheby's, the Society of London Antique Dealers, the British Antique Dealers' Association, the Society of Fine Art Auctioneers, the Antiquarian Booksellers' Association, the Royal Institute of Chartered Surveyors, the Fine Art Trade Guild, the British Association of Removers, and the Antique Dealers' Association). See P. O'Keefe, Feasibility of an International Code of Ethics for Dealers in Cultural Property for the Purpose of More Effective Control of Illicit Traffic in Cultural Property (Paris: UNESCO, 1994).
7 R.B. Ferguson, "The Legal Status of Non-Statutory Codes of Practice," Journal of Business Law, Vol. 12 (1988), 12-19.
8 Trace, February 1996, 5.
9 The Return of Cultural Objects Regulations 1994, European Union, Statutory Instruments, No. 501, 1994.
10 UNIDROIT Convention on Stolen and Illegally Exported Cultural Objects, Rome, 1995. UNIDROIT (the International Institute for the Unification of Private Law) was created in 1926 at the instigation of the League of Nations as an independent body to work on the harmonization of international laws. For more information about the work of UNIDROIT, contact the International Institute for the Unification of Private Law, via Panisperna 28, 00164 Rome, Italy.
11 Trace, February 1996, 6.
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Protecting Cultural Objects in the Global Information Society Copyright © 1997 The J. Paul Getty Trust