Are we protecting our Museums?
Art law has multiple concepts and topics under its umbrella, one of them being Museums and Art galleries. Museums and art galleries have to work with a number of professionals like historians, curators, archaeologists, lawyers and so on, this is because they have to deal with a variety of issues when putting up artworks of different artists. Intellectual Property has a substantial role to play when Every Museum/Art gallery features different types of artworks and their artists. It is a misconception that most of the artwork that is displayed publicly in the museums or art galleries, are part of the public domain. It thus becomes important to get into perspective the kinds of rights that artists have when they showcase their work on the platform.
India has a rich history and culture for all kinds of artworks but where we lack is in the protection and preservation of these art pieces and the owners of these artworks. India’s antiquities laws have failed to promote and uplift the cultural heritage that we have. With the advancement in technology, it has become imperative to integrate modern technology to preserve and promote this culture.
Legislation in India
One of the most important legislations to protect the cultural heritage of the country is the Antiquities and Art Treasure Act, 1972. This Act falls under the Archaeological Survey of India (ASI) which in turn is attached to the Ministry of Culture of the Indian Government. The Act aims to provide a strong structure for the preservation of antiquities in public places. ‘Antiquities’, under the Act includes coin, sculpture, painting epigraph or other work of art or craftsmanship that has been in existence for 100 years or more, or refers to any manuscript, record or other document which has been in existence for over 75 years.(1)
Some of the other features that are specified in this Act include;
- Export of any antiquity is illegal without the authorization of the Central Government
- A license is required for the sale of any antiquity within India. Such license is also issued by the government
Here is a case law that shows the discrepancy in the legislation:
Her Majesty v. Lord Shiva was a landmark judgement delivered in 1982 in which a British high court ordered the repatriation of a Nataraja statue of Lord Shiva, one of the principal deities of Hinduism, to India. The legal battle began after Scotland Yard seized the statue following a tip received from the British Museum. The idol had been sent to the museum by Bumper Development Corporation (“BDC”), a Canadian based firm, for restoration. The company’s chairman and renowned art collector, Robert Borden, bought the idol from London antiques dealer Julian Sherrier, who claimed the idol had been in his family’s possession for years.
The case was brought by the Indian government against the Queen’s counsel (Adrian Hamilton), BDC, and the metropolitan police as co-defendants. The government of India invoked Hindu personal law stating that temple sculptures are considered living beings and legal persons. Interestingly, divine statues may possess a distinct legal personality under Hindu personal law on a case by case basis. This doctrine was adopted by English judges in India faced with the task of applying Hindu law to religious endowments. In one such case, an Indian court held that where an endowment is made to an idol, the idol is considered as the center of jural relations and attracts the status of a legal person. Furthermore, an Indian court has held in another case that the religious deity stands as the representative and symbol of a particular purpose indicated by the donor of the idol and can figure as a legal person. (2)
Cases like these make it necessary to amend the current legal framework around antiquities in India.
A lot of us must have, at some point in our lives, passed through any museum or art gallery in our cities. We go in, take a stroll, appreciate the art that is displayed and leave the premises. The next time we visit any museum or art gallery, let’s take a step ahead and immerse ourselves in that experience. A moral contract is established as soon as we enter such a space and we should respect that not clicking photographs of any of the antiquities; by not copying the works of artists and their artworks.There are a lot of such elements that need our attention, all we need is to start a conversation. The current legislation for Museums and Art galleries fail to keep up with the modern times.
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(1) The Antiquities and Art Treasures Act, 1972