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Doc. 8111
6 May 1998
Protection of "incidental collections" against dispersal
Report
Committee on Culture and Education
Rapporteur: Mr Pedro Roseta, Portugal, Group of the European People's Party
Summary
There are many collections in Europe owned by persons or bodies whose main activities are not collecting or caring for collections. Some of these collections have a cultural value considerably greater than that of all the individual objects in them.
The Assembly considers that special protection and measures are needed to prevent the dispersal of these "incidental collections" and proposes measures to be implemented in the fields of conservation, safety, financing, insurance and legal protection, in particular regarding inheritance.
I. Draft recommendation
1. The Parliamentary Assembly of the Council of Europe considers that there are collections of cultural heritage material in Europe which need special protection and measures so that they are not broken up and their unique value lost to future generations.
2. These are collections which have a value greater than that of all the individual objects in them. They are owned by persons or bodies - universities, commercial companies, institutions, religious bodies, local government authorities, private individuals - whose main or major activities are in areas other than collecting or caring for collections. For this reason they are called "incidental collections" to distinguish them from collections owned by institutions of which the major objective is to hold the collection for purposes of study, education or public enjoyment.
3. Incidental collections are often subject to pressures which the owner is not able to stand against. The major problem is usually financial, for example when a university is short of money for building maintenance and sees the sale of a collection no longer used for teaching purposes as a way of making it up.
4. Other questions such as conservation, safety arrangements or certain legal changes can also impact on the continued existence of incidental collections.
5. There are laws in some European states which touch on the protection of incidental collections. However, these are not comprehensive and are usually of limited impact. General legal devices such as the charitable trust and the foundation may be used to prevent dispersal of collections but do not solve the financial and other problems set out above.
6. A proposed scheme of protection and an outline for adapting the legal system are included in the report of the Committee on Culture and Education (Doc. 8111).
7. The Assembly therefore recommends that the Committee of Ministers ask member states:
i. to implement comprehensive legislation designed to encourage the non-dispersal of selected incidental collections;
ii. to establish a general scheme to give assistance, financial and in services, to the owners of collections listed as a result of that legislation when there is a demonstrated need for this;
iii. to ensure that they have no laws of general application which encourage or bring about the dispersal of such collections.
II. Explanatory memorandum by Mr Roseta
Contents
Introduction
What is a collection?
Collections under consideration
Existing protection
Proposed scheme of protection
Legislation
Financial and other assistance
Adapting the legal system
Inheritance
Financial failure
Ownership in perpetuity
Export restrictions
Introduction
1. The need for this report came about following the break-up of a number of important collections of cultural heritage material in various European countries. These had been held by universities, local authorities, churches, commercial companies, other institutions and individuals. The most notorious situation usually was the sale of part of a collection to raise money for maintenance of the remainder or sometimes to relieve the general financial problems of the owner. In other cases, changes in the general law removed legal blocks to dispersal of the collection. The death of the collector sometimes meant that the collection was divided among the heirs or sold to enable the heirs to obtain cash.
2. Public concern at this disappearance of European heritage led to a Motion for a resolution on University and other privately owned collections (Doc. 5711) and then to the matter being given for consideration to the Sub-Committee on the Architectural and Artistic Heritage. A study of the subject by Dr. Patrick J. O'Keefe was introduced and considered at the December 1996 meeting of the Committee. The matter was further discussed in December 1997. This report is based on that study and the discussions. (The study and supplementary material is available from the Committee secretariat)
3. The report recommends that the Member States of the Council of Europe implement comprehensive legislation on the protection of selected collections to ensure their continued existence indefinitely. The legislation should be based on the proposals made in the following paragraphs. It is vitally important that public support is won for the implementation of this scheme. It will be necessary to give an explanation of why the scheme is needed and how it is going to be achieved.
What is a collection?
4. We cannot consider the dispersal of collections without first agreeing on what we mean by "collection". The basic feature must be that the collection have an underlying theme. For example, the collection was formed by an historical figure or one significant in the history of taste; or it may be that, although the creator is not important, the collection itself illustrates a particular aspect of history or taste. There are also collections associated with particular buildings and other structures. Here the theme comes from the association with, for example, a particular house.
5. The collection must be capable of being regarded as an entity in its own right. In other words, the value of a particular collection from the point of view of history, science or art must exceed that of the individual objects of which it is composed.
6. Provided there is the underlying theme, the number of objects does not matter although, for logical reasons, there would have to be at least two.
7. Nor should there be any requirement that the objects comprising a collection be kept in one place.
Collections under consideration
8. This report deals with a particular category of collections which are referred to as "incidental collections". These are collections which are subsidiary to the main interests or activities of their owner. It does not cover collections owned by museums where the sole objective of the institution is to hold the collection for purposes of study, education and enjoyment.
9. Past discussion of this category of collection emphasised the problems of "university and other privately owned collections". However, this is both too narrow and too broad to describe the category. University collections are certainly vulnerable to dispersal as their holders seek funds for general maintenance and running costs or when the collection is no longer relevant to teaching purposes. But these are only one category of collection among many which are subject to financial pressures and in need of protection. On the other hand, private ownership in itself does not adequately describe the field. Large museum collections may be in private ownership legally but they are not the subject of our concern. Accordingly, the term "incidental collection" has been adopted to cover those collections which may be owned by a university or may be in private ownership but are essentially outside the main activities of their owner.
10. The range of bodies holding incidental collections is large. They certainly include both what the law calls natural and legal persons. The former are living persons while the latter comprise entities created under a legal system so that they have an existence independent from that of the natural persons who found and run them. They include commercial companies, religious bodies, universities and other places of learning. They also include local government authorities who may have under their control collections of important cultural heritage material but, for the purposes of this report, do not hold these as a major activity.
Existing protection
11. Some European countries already have legislations affecting incidental collections. There is no pattern in the way this applies. In Greece it is limited to collections of antiquities whereas in Austria, Italy and the Netherlands it applies generally. In Austria and the Netherlands the decision to protect is made by the authorities but in Poland the owner of a collection has to apply to have it registered. Most of the legislation has provisions requiring the reporting of transactions involving protected collections and their conservation.
12. General law may enable an owner to use legal structures such as the charitable trust in Common Law or the foundation in Civil Law that have the effect of limiting the dispersal of objects in a collection.
13. Existing international instruments have little relevance to the objective of this report.
14. Codes of ethics exist only for those incidental collections that also happen to fulfil the definition of a "museum" which is a member of an organisation such as the International Council of Museums (Icom).
15. In these circumstances the Member States of the Council of Europe should implement comprehensive legislation on the protection of selected incidental collections. This has to provide a framework within which these collections can continue to exist free of the pressures that are currently leading to the dispersal of their contents. States need to educate the public in the benefits to be derived from the continued existence of such collections. Finally, comprehensive legislation is necessary to show that governments regard the matter as a serious one.
Proposed scheme of protection
16. Protection means the establishment of a system for selecting particular incidental collections it is desired to keep intact together with the creation of a regime - both legal and financial - which will ensure the collection continues as an entity indefinitely.
Legislation
17. Legislation should incorporate the following features :
18. Eligible collections should be placed on a list, at which stage they should attract the legal and financial benefits set out below.
19. The decision to put them on the list should be made by the relevant Minister or a person authorised by that Minister, on his initiative or following a proposal of the owner of the collection.
20. In the former case, the owner must first be notified of the proposed action. If there is a danger the collection will be dispersed, the Minister should be able to list it immediately and then notify the owner. The latter should have the right to object and such objection must be considered by the Minister. There should also be a right of appeal against the Minister's decision for failure to consider any objection or if the decision is not supported by reasons.
21. Where the owner requests listing of the collection, the Minister must make a decision on whether it meets the necessary criteria. Removal of the collection from the list should require the consent of the Minister.
22. The relevant criteria will be whether the collection is of significant historical, artistic or scientific importance. In assessing this, particular attention should be given to archaeological site collections; archives; collections held by religious and scientific institutions; complexes of movable and immovable objects where there is an inter-relationship between the two. The Minister should decide, at the time of listing, precisely what the collection includes. In reaching this conclusion, the advice and opinions of the owner should be accorded the greatest weight.
23. A collection still owned by its creator cannot be compulsorily listed unless the owner consents. In cases where the owner is an institution with an indefinite legal life or one of at least 99 years, compulsory listing can take place if more than 30 years have passed since the last item determined to be included in the collection was acquired.
24. The rights of the creator of artistic works may need to be curtailed. Thus, the right to destroy a work or withhold it should no longer apply when it has become part of a protected incidental collection. As for the right to prevent change to the work, this will have little relevance because, being part of such a collection, individual objects will be protected against change. Although the collection is a creation, and possibly even an "artistic" creation, there should be no possibility of applying "moral rights" rules to it even by analogy.
25. The fact that the creator of an object included in a collection under consideration for listing is still alive should have no bearing on the decision whether to list or not.
26. The legislation and implementing administrative practices should stress that all documentation relevant to the collection and its component objects must be preserved and kept with the collection. This does not necessarily mean that the physical location has to be identical. In fact, it is highly desirable that at least one copy of the documentation be kept in a different place to avoid destruction from natural disasters such as fire and flood and those of human origin such as war. What must be avoided is separation of documentation from the objects and collection it covers due to legal or economic considerations.
27. The use of prohibitions must also be considered. Logically, there should be a prohibition against any action causing detriment to a listed incidental collection including its dispersal among different owners and inaction leading to deterioration of the objects. There could also be prohibitions on any transfer of ownership, conservation efforts and change in location of the collection without notification to the responsible authorities.
Financial and other assistance
28. States will have to implement a range of measures giving assistance where needed by the individual owner of a listed incidental collection.
29. Foremost is the necessity to deal with the owner's financial problems that, in normal circumstances, would lead to sale of the collection or part of it. Rather than dealing with this on an ad hoc basis, a general scheme of recourse for owners with financial problems should be devised and implemented.
30. Another form of assistance is the provision of specialist advice and/or services on matters such as security and conservation. These often raise highly technical issues but ones that may be solved relatively simply provided one knows where to go for help. The State should provide guidance here and be prepared to assist with the funding of such services in circumstances where the owner is not able to afford the necessary work. Funding of insurance premiums should also be considered, especially insurance against damage caused by natural forces or human interference.
31. If it is possible under the legislation for objects to be added to a listed incidental collection, arrangements might be put in place for the owner to obtain free advice on authenticity and attribution from specialists in State run institutions. However, no assistance should be given in locating material to add to the collection or in providing funds to purchase them.
32. Where special assistance is given to the owner of a listed incidental collection or public funds spent on it, public access should be required. It could mean access by scholars or limited access by other interested persons. Guidelines need to be prepared in accordance with local conditions.
Adapting the legal system
33. States should ensure that they have no laws of general application which encourage or bring about the dispersal of listed incidental collections.
Inheritance
34. This may require examination of inheritance laws and their adaptation so as to allow such collections to descend as an entity. If this is regarded as too radical a step, then consideration should be given to the implementation of a system whereby the collection is ceded with due compensation to the inheritors, to a body able to ensure its survival.
Financial failure
35. The legal implications of the owner's financial failure have to be considered. The listed incidental collection has to be insulated from this. It does not necessarily mean that the collection cannot be sold to meet the owner's debts. It means that the collection must not be broken up by selling selected objects from the collection for this purpose.
Ownership in perpetuity
36. The owner should have the option of placing the collection in the hands of a legal entity which has the capacity to continue its life indefinitely under conditions established by the owner. In many Member States of the Council of Europe the foundation has the ability to do this. Where this is not the case, the States concerned should do everything possible to establish the necessary legislative framework.
Export restrictions
37. Rules on export should not apply in such a way that they lead to the dispersal of listed incidental collections. Such a collection must be regarded as an entity. Thus, its export should be regarded as the export of one item and not an assembly of objects. It should be subject to the same rules as any other significant item of the cultural heritage.
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Reporting committee: Committee on Culture and Education
Budgetary implications for the Assembly: None.
Reference to committee: Doc. 5711 and Reference No. 1563 of 4 May 1987
Draft recommendation unanimously adopted by the committee on 23 April 1998.
Members of the committee: Lord Russell-Johnston (Chairman), Mr Probst, Mrs Verspaget, Mr Zingeris (Vice-Chairmen), MM Arnason, Arzilli, Bartumeu Cassany (Alternate: Alis Font),Bauer, Baumel, Mrs Camilleri, MM Corrao, de Decker (Alternate: Staes), Diaz de Mera (alt: Varela), Dumitrescu, Mrs Fehr, Mrs Fleeetwood, Mrs Fyfe, Mrs Garajova, MM Gellért Kis, Glotov, Gül, Hadjidemetriou, Mrs Isohookana-Asunmaa, MM Ivanov, Jakic, Jarab (Alternate: Mrs Stepova), Mrs Katseli, MM Kiely, Kollwelter, Kofod-Svendsen, Koucky, Kriedner, Lachat, Mrs Laternser, MM Lazarescu, Legendre (Alternate: Mignon), Lemoine, Libicki, Liiv, Mrs Maximus, MM O’Hara, Pereira Marques, Polydoras, Mrs Poptodorova, MM de Puig, Radic (Alternate: Domljan), Ragno, Risari (Alternate: Gnaga), Rockenbauer, Roseta, Mrs Rugate, Mrs Saele, Mrs Schicker, Mrs Stefani, MM Sudarenkov, Symonenko, Tanik, Mrs Terborg, MM Urbanczyk (Alternate: Wittbodt), Vangelov, Verbeek, Mrs Wärnersson, MM Yavorivsky.
NB: The names of those who took part in the vote are in italics
Secretaries to the committee: Mr Ary, Ms Theophilova, Ms Kostenko