Art and Cultural Heritage Dispute Resolution

July 2009

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”, 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 this dispute, allowing in particular consideration of all the cultural and non-legal issues involved.

The potential of ADR

There are instances in which litigation in a national court may be entirely appropriate in art and cultural heritage disputes; for example, when a recalcitrant party is involved (as no consent is needed to start litigation), or when a legal precedent is sought which may have a deterrent effect.

However, in view of the specific needs in art and cultural heritage disputes, litigation may not always be the optimal solution.

Parties to the dispute may have different legitimate interests, and long-term professional relationships may be involved. If they go to court there is normally an overall winner and loser, and the procedure and result are public, which may adversely affect relationships. Further, as legislation in the art and cultural heritage field is not fully harmonized internationally, there is a risk of contradictory outcomes in the courts.

That is why ADR options such as negotiation, mediation, arbitration and expert determination, may, in some circumstances, be more advantageous in this sector. Provided each party agrees to use ADR (e.g., in an ADR contract clause or submission agreement), these private, out-of-court dispute resolution mechanisms allow them to solve their disputes in a timely, cost-efficient, sustainable and responsible manner with the assistance of one or several qualified independent mediators, arbitrators or experts. A mediator can assist parties in settling their dispute through facilitating dialogue and helping identifying their interests but without imposing any decision. An arbitrator renders a final, binding and internationally enforceable decision on the parties’ dispute. An expert makes a determination on a specific matter submitted by the parties, for example on the authenticity of a work.

The potential of ADR for resolving disputes relating to TCEs and TK is being addressed within the context of WIPO’s program on intellectual property (IP) and genetic resources, TK and TCEs. For example, this program, working with the WIPO Arbitration and Mediation Center and other actors such as the United Nations Educational Scientific and Cultural Organization (UNESCO), the International Council of Museums (ICOM), the Food and Agriculture Organization (FAO), and the Convention on Biological Diversity (CBD), is exploring the role of ADR in IP disputes relating to access to and benefit-sharing in genetic resources and the alleged misappropriation of TK and TCEs. Moreover, WIPO is developing a compendium of issues and options for the management of IP in cultural institutions, and ADR is highlighted as a key feature of IP management policies.

The utility of considering ADR has also been raised by Member States participating in the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC).

Benefits of ADR

Some of the benefits of ADR in the art and cultural heritage sector include:

A single, international and neutral procedure – Art and cultural heritage disputes are often international, involving parties based in different countries. Instead of bringing cases to court in different jurisdictions, ADR mechanisms allow parties to solve their dispute in a single procedure, saving time and money.

ADR provides an international and neutral forum in which parties are free to choose a neutral mediator, arbitrator or expert from a third country, the applicable law and language, thereby preventing the possible perception of bias that could arise in national court litigation. Parties therefore have complete control over the dispute resolution process.

Expertise – In an ADR procedure, parties can choose one or several mediators, arbitrators or experts with expertise in the specific legal area and subject matter of art or cultural heritage at issue, as well as knowledge of the cultural and linguistic background(s) of the parties. This would be important in, for example, a dispute involving a museum and an indigenous community from different cultural backgrounds.

Consideration of sensitive issues – ADR provides a flexible forum, allowing consideration of legal as well as sensitive non-legal issues that may arise in art and cultural heritage disputes as described above, and which may be difficult to consider in court.

In mediation, the mediator can identify and address particularly delicate issues with the parties, which can help them to find a mutually agreeable solution that preserves their long-term relationship.

<>A possible option in arbitration is for parties to ask the arbitrator to decide ex aequo et bono, that is on the basis of principles of fairness.

Possibility of considering and applying customary laws and protocols – Where indigenous communities are involved, ADR can be a forum in which their customary laws, protocols and codes can be considered and applied. This is one of the issues addressed in a consultation process on customary law and IP currently conducted by WIPO’s Traditional Knowledge Division. According to this study, customary law could be incorporated into ADR proceedings at different levels, such as for:

providing guidance on substantive issues in a dispute, for example in cases involving custodianship of TCEs;
establishing adapted procedures, for example providing for a community consultation process; and
determining certain remedies, for example acknowledging certain cultural and spiritual concerns.

Creative solutions and preservation of long-term relationships – ADR allows parties to adopt mutually satisfactory solutions and remedies that can preserve their relationships and provide a basis for future collaboration. In art and cultural heritage disputes, such solutions have included the provision of works of art in lieu of monetary damages, the conclusion of long-term loans, shared ownership or custodianship, the formal recognition of ownership, or capacity-building programs in exchange for the lending of an object.

Confidentiality – Except where otherwise required by law, ADR mechanisms allow parties, to a large extent, to keep the proceedings and results confidential. The different actors involved in the international art market usually know each other, and reputation is key. Hence, confidential dispute resolution may help them to settle disputes in a more discreet manner. Also, where sacred traditional material is involved, confidentiality may be crucial. Depending on the circumstances, parties can also agree to balance confidentiality provisions with public interest requirements.

Issues for consideration

Certain issues in art and cultural heritage ADR, which cannot be developed in detail here, require consideration on a case-by-case basis.

While “arbitrability” in general does not present issues in ar and cultural heritage disputes, certain issues of a public policy nature, or inalienable rights, may be difficult to submit to arbitration in certain jurisdictions.

While not unique to ADR, consideration may need to be given to how public cultural institutions are represented in ADR proceedings and whether they are capable of disposing of the cultural object at stake.

Also, where indigenous communities are involved, due consideration needs to be given to their identification and representation.

WIPO Arbitration and Mediation Center

The Center provides WIPO mediation, (expedited) arbitration and expert determination rules, as well as model ADR clauses and submission agreements, which can be, and have been, used in art and cultural heritage disputes. The Center maintains a special list of “neutrals”, including mediators, arbitrators and experts who combine expertise in art and cultural heritage law with dispute resolution experience.

In addition to its standard procedures, the Center develops adapted ADR procedures. For example, it recently developed an expedited arbitration procedure at the request of the Association of International Collective Management of Audiovisual Works for disputes between their right holders (see, www.wipo.int/amc/en/arbitration/agicoa/).

Mindful of the specific needs in art and cultural heritage disputes, the Center, in collaboration with the divisions within WIPO that deal with TK and copyright, is exploring the development of specifically adapted ADR services for this sector.

WIPO arbitration in an artist promotion dispute
The following is a recent example of a WIPO arbitration in an artist promotion dispute, and illustrates how an art-related dispute can be creatively resolved in a manner satisfactory to all parties. A European art gallery concluded an exclusive cooperation agreement with a European artist in order to promote the artist on the international market. The agreement contained a WIPO arbitration clause providing for a three-member tribunal. Three years after the agreement was signed, the parties’ relationship began to deteriorate and the artist sent a notice terminating the agreement. At that point, the art gallery initiated arbitration proceedings at WIPO. Following consultations between the parties and the Center, three arbitrators experienced in art law issues were appointed. After studying the parties’ pleadings, the tribunal considered there was potential for settlement. With the agreement of the parties, the tribunal issued a preliminary case assessment encouraging the parties to resume the settlement negotiations they had attempted at an earlier stage. The parties reached a settlement and asked the tribunal to render a consent award incorporating the settlement agreement. The terms of the settlement included the termination of the cooperation agreement and the provision of a number of works by the artist to the gallery in final settlement. This and other case summaries are available on the Center’s website at: www.wipo.int/amc/en/arbitration/case-example.html

WIPO arbitration in an artist promotion dispute

The following is a recent example of a WIPO arbitration in an artist promotion dispute, and illustrates how an art-related dispute can be creatively resolved in a manner satisfactory to all parties.

A European art gallery concluded an exclusive cooperation agreement with a European artist in order to promote the artist on the international market. The agreement contained a WIPO arbitration clause providing for a three-member tribunal. Three years after the agreement was signed, the parties’ relationship began to deteriorate and the artist sent a notice terminating the agreement. At that point, the art gallery initiated arbitration proceedings at WIPO.

Following consultations between the parties and the Center, three arbitrators experienced in art law issues were appointed.

After studying the parties’ pleadings, the tribunal considered there was potential for settlement. With the agreement of the parties, the tribunal issued a preliminary case assessment encouraging the parties to resume the settlement negotiations they had attempted at an earlier stage. The parties reached a settlement and asked the tribunal to render a consent award incorporating the settlement agreement. The terms of the settlement included the termination of the cooperation agreement and the provision of a number of works by the artist to the gallery in final settlement.

This and other case summaries are available on the Center’s website at: www.wipo.int/amc/en/arbitration/case-example.html

By Sarah Theurich, WIPO Arbitration and Mediation Center