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Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

*Ronald Alcala

In 2021, when the Taliban recaptured control of Afghanistan, a small museum in Kabul quietly shuttered its doors. The museum contained no famous artifacts or works of art, and it had never hosted an exhibition of national or international acclaim. Rather, the Afghanistan Memory Home Museum displayed modest items once owned by ordinary people. It was dedicated to memorializing the lives of war victims by sharing their stories through objects they once owned. Grouped together in “memory boxes,” these items—a school notebook, a pair of sandals, a child’s drawings—were a testament to lives altered or lost as a result of the ongoing violence in Afghanistan.

When the Taliban entered the city, the museum’s organizers hid or sent away all of the museum’s artifacts. Some were hastily buried in volunteers’ yards while others were smuggled abroad for safekeeping. Today, the museum no longer exists in physical form, but it has reemerged online. Visitors can view the museum’s “memory boxes” in a digital gallery along with descriptions of each item and a narrative of the victim’s story. The digitized artifacts have kept the museum’s mission alive in a way that has become increasingly common in contemporary society: through the use of digital reproductions.

This article explores the value of digital reproductions and the significance of protecting them as cultural heritage. The article examines the law’s emphasis on original creations and argues that preferencing original works unduly burdens the aims of cultural heritage preservation. In some cases, digital reproductions can encode cultural memory as effectively as original creations, and the law should avoid biasing the protection of original works when the preservation of a digital copy can achieve the same result. All digital material, whether born digital or created to reproduce a physical object, should be independently evaluated for its cultural heritage value and protected accordingly.

A Preference for Originals

UNESCO’s adoption of the Charter on the Preservation of Digital Heritage in 2003 marked an important milestone in the protection of digital cultural heritage. The charter recognized that recorded knowledge and creative expression were increasingly “produced, distributed, accessed and maintained in digital form,” leading to the creation of a “new legacy—the digital heritage.” Older agreements that did not explicitly address digital works have now also been interpreted in light of emerging digital technologies. Among these is the 1954 Hague Cultural Property Convention, adopted in the aftermath of the Second World War to protect cultural heritage from damage or destruction in future armed conflicts. As interpreted by the international group of experts who produced the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, the convention’s requirements to respect and protect cultural property extend to “cultural property that may be affected by cyber operations or that is located in cyberspace.” In particular, parties to an armed conflict “are prohibited from using digital cultural property for military purposes.”

The protection of digital heritage, however, comes with a significant caveat. Both UNESCO’s Charter on the Preservation of Digital Heritage and the Tallinn Manual 2.0 express a preference for original works—either “born digital” material or a “digital surrogate”—and prioritize their protection over other digital materials. Article 7 of the Charter on the Preservation of Digital Heritage suggests that the main criteria for deciding what digital materials to keep include “their significance and lasting cultural, scientific, evidential or other value.” Article 7 then declares, without further explanation, that “‘[b]orn digital’ materials should clearly be given priority.” The Tallinn Manual 2.0also preferences original works. Its commentary to Rule 142, which addresses cultural property, explains that the protection of digital cultural property “only applies to digital copies or versions where the original is either inaccessible or has been destroyed, and where the number of digital copies that can be made is limited.”

While a preference for original items may be understandable, this bias is worth reconsidering in an age of digital reproduction. At a time when photography and film were the disruptive reproduction technologies of the day, the German philosopher Walter Benjamin explored the allure of originals in his essay “The Work of Art in the Age of Mechanical Reproduction.” Benjamin explained that originals possessed qualities of “authenticity” and “aura” that could never be recaptured in a copy, even if the copy represents “the most perfect reproduction” of a work. Authenticity and aura were a reflection of a work’s existence in time and space and, therefore, were inapplicable to copies produced. Still, Benjamin questioned the value of authenticity and aura in an age of mechanical reproduction, “from a photographic negative,” he noted, “one can make any number of prints; to ask for the ‘authentic’ print makes no sense.”

Digital reproduction has only magnified this argument. One commentator suggested, “the work of art in the age of digital reproduction is physically and formally chameleon. There is no clear conceptual distinction now between original and reproduction in virtually any medium based in film, electronics, or telecommunications.” A growing list of projects lends support to this conclusion. In one example, a high-quality reproduction of Paolo Veronese’s Wedding at Cana was created to replace the original painting in Venice’s San Giorgio Maggiore. Napoleon ordered the painting’s removal and transfer to the Louvre in 1797. To replace it, the art conservation firm Factum Arte produced a high-resolution photographic rendering of the work and even recreated the raised seams rejoining sections of the painting that had been cut apart when Napoleon’s soldiers transported it to France.

Presented in the painting’s original setting, the near-perfect copy is striking. It reproduces what Veronese envisioned when he composed the work for the space centuries ago. One art critic described it as the “third miracle at Cana,” placing it after only Veronese’s original masterwork and the biblical miracle itself. The sociologists Bruno Latour and Adam Lowe suggested that “the aura of the original had migrated” from Paris to Venice, while another scholardescribed the transfer as flowing from the original work to “an otherwise perfect reproduction with only one shortcoming: being a facsimile.” These reactions are telling. If reproductions can possess this power and even at times feel more authentic than the originals, shouldn’t they also be entitled to independent protection, regardless of the condition or whereabouts of the originals themselves?

The Cultural Value of Reproductions

The law has been reluctant to extend unqualified protection to copies and facsimiles because they are viewed as inauthentic and inferior. This reflexive criticism persists despite the ability of contemporary technologies to encode essentially the same cultural memory that heritage law seeks to preserve. Public response to a proposal to replace the Parthenon Marbles in the British Museum with high-quality reproductions is illustrative. The proposal would substitute the existing works with nearly identical copies carved by robots from detailed digital scans. The project would even use Pentelic marble sourced from the same quarry as the original sculptures.

Critics, however, contend that the iron flecks in the marble “would inevitably fail to match the original” and that viewing the copies would not hold the same “magic” as viewing objects crafted by hand centuries ago. In reply, the Executive Director of the Institute for Digital Archaeology, the group overseeing the project, has argued that “the Parthenon sculptures are a far cry from the ‘real thing,’ at least if the real thing is defined as something that approximates the actual appearance of the work-product of Phidias & Co.” Phidias oversaw the Parthenon’s sculptural program, including the creation of the disputed marbles in the British Museum, in the 5th century BCE.

Viewing a high-quality reproduction with the knowledge that the archetype exists someplace else could be unsettling. Latour and Lowe indicated that the experience could provoke “terrible cognitive dissonance.” Current interpretations of the law anticipate this dissonance and consequently express a preference for originals. Perhaps, however, it is time to revisit the purpose and importance of copies. In an age of digital reproduction, when material can be reproduced with exacting detail, we should adjust our expectations and evaluate copies on their own merit as potential encoders and communicators of cultural memory.

Digital Surrogates and Cultural Memory

The commentary to the Tallinn Manual 2.0 supports protecting digital surrogates as cultural property in armed conflict, but only in cases “where the original is either inaccessible or has been destroyed, and where the number of digital copies that can be made is limited.” To illustrate this, the Tallinn Manual 2.0 provides the example of an “extremely high-resolution” digital image of the Mona Lisa. The commentary indicates that this digital surrogate “might, and in the event of the destruction of the original Mona Lisa would, qualify as cultural property.” On the other hand, “due to the high speed and low cost of digital reproduction, once such a digital image has been replicated and widely downloaded, no single digital copy of the artwork would be protected by this rule.”

Applying the Tallinn Manual 2.0’s rationale to the digital facsimile of the Wedding at Cana would lead to the following result. (Coincidentally, the original painting currently shares a gallery with the Mona Lisa in the Louvre.) First, the digital information used to create the image installed in San Giorgio Maggiore is not entitled to independent cultural property protection. Because the physical original continues to exist and is not otherwise inaccessible, the digital copy is not afforded protection under Rule 142 of the Tallinn Manual 2.0. Moreover, even if the original were to be destroyed or to become inaccessible, the digital surrogate still would not necessarily be entitled to protection. The Tallinn Manual 2.0 insists that if an image has also been widely downloaded, no single digital copy would be granted protection. (Another potentially interesting question, which is outside the scope of this article, is whether the same rule would apply if the original were destroyed or became inaccessible but a singular, high-quality reproduction, like the physical recreation of Veronese’s painting, continued to exist.)

In contrast, the protection of born-digital material is not subject to the same “widely downloaded” restriction as digital surrogates. The Tallinn Manual 2.0 does not explicitly distinguish between born-digital material and digital surrogates, but it does hint at a difference of treatment between the two. It contrasts “objects that are created and stored on a computing device and therefore only exist in digital form” from copies “of which a physical manifestation exists (or has existed).” The “widely downloaded” restriction apparently does not apply to born-digital material, such as musical scores, digital films, and scientific data.

Neither the Tallinn Manual 2.0 nor UNESCO’s Charter on the Preservation of Digital Heritage explain why born digital works should benefit from a more favorable and extensive protective regime than other digital heritage material. Presumably, it is because reproductions are considered less significant than original material. On the other hand, if a goal of cultural heritage preservation is to safeguard cultural memory for posterity, then potentially all material that accomplishes that purpose has cultural value. The preamble of the Charter on the Preservation of Digital Heritage itself declares that “the disappearance of heritage in whatever form constitutes an impoverishment of the heritage of all nations” (emphasis added). In recognition that digital reproductions can preserve heritage, it may be time to decouple the protection of digital surrogates from their physical avatars.

The digital “memory boxes” of the Afghanistan Memory Home Museum and the facsimile of Veronese’s Wedding at Cana attest to the power of reproductions. As repositories and transmitters of cultural information, digital surrogates can be valuable safekeepers of cultural memory. In a world increasingly cultivated and experienced online, linking the protection of digital surrogates to physical objects may no longer make much sense. The law should acknowledge that in some cases, digital surrogates, like born digital material, might merit independent protection as digital cultural heritage.

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*Ronald Alcala  is the Academy Professor and Associate Dean for Strategy & Initiatives, United States Military Academy at West Point. The views expressed here are the view of the author and do not necessarily reflect those of the United States Military Academy, the United States Army, the Department of Defense, or any other department or agency of the United States government.

Cover image credit 

Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

*Livia Solaro & **H. Konstantin Jänicke

Introduction 

In November 2022, an Italian court ordered Ravensburger, a German manufacturer of toys and games, to stop selling puzzles depicting Leonardo da Vinci’s “Vitruvian Man.” The original artwork is currently held by the Gallerie dell’Accademia di Venezia, which, in 2019, sued the German company for failing to comply with Italian cultural heritage law. This law requires prior authorization and the payment of a fee to reproduce artworks from Italian public collections. Ravensburger refused to pay fees on products sold outside the Italian territory. After the Italian court ruled in favor of the museum, Ravensburger decided to bring the fight to its home country, initiating proceedings before a German court. In March 2024, the Landgericht Stuttgart sanctioned the German company’s right to freely use the image outside of the Italian territory. The following parallel analysis of these two rulings highlights important limits to the protection of cultural heritage, its complex relationship with intellectual property law, and the pressing need for harmonization in this field.

The protection of cultural heritage under Italian law

At the foundation of the Ravensburger case lie Articles 107-109 of the Codice dei Beni Culturali e del Paesaggio (CBCP – the Italian cultural heritage law). Art. 107 subjects the reproduction of cultural goods in public collections to the previous authorization of the museums or institutions in their possession. To appreciate the scope of application of this provision, it is important to note that most museums in Italy are State-owned. Art. 108 allows the same entities to decide on a fee according to the following set of criteria: a) the nature of the activities where the image will be used, b) the means with which the reproduction will be made, c) the type and length of the use of the goods and spaces, and d) the use and destination of the reproduction, as well as the profits that the external party will enjoy. No fee is required for creative and non-commercial uses, research and study activities, and the promotion of cultural heritage.

Crucially, this regime also applies to the reproduction of artworks that have already entered the public domain and are, therefore, no longer covered by copyright. Attempts to monopolize the economic exploitation of artworks in the public domain are not uncommon (see, for example, the use of trademark law to “prolong” copyright). From this perspective, Arts. 107-109 CBCP seem to have successfully created a pseudo-copyright, held indefinitely by the Italian State, on an important portion of the world’s cultural heritage. The Ravensburger case effectively tested how far this protective right is enforceable.

The Ravensburger proceedings

The Gallerie dell’Accademia di Venezia’s legal action follows several analogous cases, targeting non-authorized commercial uses of famous artworks from Italian collections. In recent years, the Uffizi Galleries’ suit against Jean Paul Gaultier and the Gallerie dell’Accademia’s legal battle against GQ Magazine have drawn particular attention. Through precautionary proceedings, museums can secure a court order to immediately halt the unauthorized use of a specific image, with the possibility of resorting to monetary penalties for non-compliance or delays.

Following the Italian ruling, Ravensburger requested a negative declaratory judgment (negative Feststellungsklage) against the Italian Ministry of Culture (MiC) from the Landgericht Stuttgart, a German regional court. In German civil proceedings, a declaratory judgment allows plaintiffs to request a court to declare the existence (positive Feststellungsklage) or non-existence (negative Feststellungsklage) of a legal relationship. Accordingly, Ravensburger sought a declaration that the Italian court’s payment order was not enforceable outside of Italy’s territory.

Issues of jurisdiction

In deciding the Ravensburger case, the Venice court assessed its jurisdiction under European Union (EU) private international law. Under the Brussels I Regulation, defendants in tort cases domiciled in an EU member state can be sued in the forum delicti (Art. 7(2)). According to the case law of the Court of Justice of the EU, this may equally refer to the place of the harmful act or the place where the damage occurs. In the court’s view, the damage had occurred in Italy, the place where both the museum and the artwork were located.

The Landgericht Stuttgart also established its jurisdiction over the case. Firstly, the German court observed that the Italian court’s order targeted not only Ravensburger’s Italian subsidiary but also the main company with its headquarters in Germany. Secondly, the German court clarified that, even though the Venice court had already issued a legally binding decision, this did not bar legal proceedings in Germany, as the two cases were not identical. The first case centered on the MiC’s claim for compensation against Ravensburger, while the second focused on the enforceability of this claim outside of Italy.

The principle of territoriality

The most controversial aspect of the Italian ruling was the court’s conclusion that the CBCP, which applied to the case under Art. 4(1) of the Rome II Regulation, also applied to Ravensburger’s conduct outside of Italy. This peculiar decision was justified by referencing the CBCP’s “universal scope and vocation” and the lack of any explicit territorial limitation within that law. However, when deciding on Ravensburger’s request for a negative declaratory judgment, the German court found that the request was justified (begründet), as the question of the enforceability of Italy’s universal claim warranted judicial clarification. Furthermore, the court sided with Ravensburger, finding that the duty of compensation could not be enforced outside the Italian territory. The German court based its decision on the international law principle of territoriality. Accordingly, while the Italian legislation allows for a universal claim, the concept of State sovereignty dictates that a State’s law is only applicable in the territory of that State. Against this background, the court found no other legal basis for the universal enforceability of Italy’s compensation claim, nor did the MiC provide one.

The EU Directive on Copyright in the Digital Single Market

It should be noted that Ravensburger also tried to challenge the extraterritorial application of Italian law in light of EU copyright law. Before the Italian court, they argued that the control exercised by the museum violated the rules on the public domain codified by the EU Directive on Copyright in the Digital Single Market. Before the German court, Ravensburger claimed that the Italian legislation conflicted with the EU Directive 2006/116/EC, which harmonized the duration of copyright protection within the EU to 70 years after the author’s death. Before the German court, the MiC claimed that the Ravensburger’s obligation did not arise from copyright protection, but from the protection of cultural heritage. Interestingly, Italian and German courts avoided addressing these questions, missing the opportunity to discuss this important problem of coordination between national cultural heritage laws and EU copyright policies.

A critical review of the Italian law

To understand the clash between the German and Italian courts, it is important to consider the specific ruling and law that the Landgericht Stuttgart was asked not to enforce. For example, while the Court of Venice found the sale of the Vitruvian Man puzzle to debase and water down the image and the name of the artwork, it never explained how exactly it injured such rights. According to the Italian system of preventive control, any unauthorized use of the cultural heritage’s imagery is considered tortious, regardless of its specific characteristics. The rationale underlying this law is protecting the integrity of the national cultural heritage, which, as put by the court, represents “an essential interest of the Italian State.” Nevertheless, the regime created by Arts. 107-109 is controversial under at least two profiles.

Firstly, it blends this law’s economic and moral aspects, putting excessive emphasis on the former. It is difficult to imagine that there would have been any issue authorizing Ravensburger’s use of the Vitruvian Man if they had agreed to pay the required fees. This attitude is particularly striking if one considers that the State itself has sometimes made questionable use of the cultural imagery (see, for example, the widely discussed “Open to Meraviglia” campaign with the Venus of Botticelli depicted as a modern-day influencer). The idea that the State might economically profit from the commercial exploitation of cultural heritage is not only anachronistic (as acknowledged by Corte dei Conti, the institution responsible for controlling the State budget), but it also undermines the goals behind the process of digitalization of cultural heritage. Moreover, it does not align with this law’s history. As Italian lawyer Giuseppe Calabi pointed out, the limitation of the right of reproduction was initially meant to ensure the physical protection of the artworks. Later amendments extended its scope to cover images and names, introducing a fee. Nevertheless, this system of control was never envisioned as a proprietary prerogative of the State, but rather as a duty falling upon the objects’ custodians to preserve their integrity.

Secondly, the regime envisioned by Arts. 107-109 is unsuitable for the contemporary realities of international and online commerce. A quick search on Amazon.it, for instance, reveals that numerous brands are actively selling puzzles featuring the Vitruvian Man, leaving the impression that cases like the Ravensburger dispute resemble a game of Russian Roulette. The consequences of this climate of legal uncertainty on the soft power exercised by Italy’s “iconic visual imagery,” noted by Professor Geraldine Johnson, appear to be of little concern to the Italian legislator (perhaps confident in the country’s enduring reputation as a treasure trove of cultural goods). However, by deterring foreign businesses unfamiliar with Italian law from using images of Italy’s cultural heritage, this situation could inadvertently leave the market to unscrupulous actors and their low-quality products, ultimately undermining the very objectives of this law.

Conclusions

In contexts such as the Italian one, some form of control over the use of imagery from the national cultural heritage seems inevitable: its unique historical and artistic importance has made it such a defining trait for this country that the cultural goods themselves enjoy personal rights. A system of ex post, rather than preventive controls, based on the criteria listed in Art. 108, could allow authorities to actually examine the merits of potentially harmful uses (distinguishing, for example, between the commercialization of a puzzle and the promotion of an OnlyFans account). In combination with eliminating the fee requirement, this amendment would remove a significant burden from the users’ shoulders, bring the Italian discipline in line with EU law, and increase the transnational effectiveness of its court orders.

Ravensburger’s choice to challenge the Italian decision unveiled just how crucial the willing cooperation of the succumbing party remains in transnational cultural heritage cases. While the protection of cultural heritage is generally recognized as a fundamental prerogative of sovereign States (see, for example, Art. 36 of the Treaty of the Functioning of the European Union), without proper harmonization, its effectiveness in a globalized environment is inevitably thwarted. Courts will be forced to revert to the principle of territoriality, as did the Landgericht Stuttgart; the resulting fragmentation is bound to jeopardize the proper protection of cultural heritage. The fact that the Ravensburger case took place in the heart of Europe – a region of intense legal harmonization – highlights the need for continuous efforts to develop a system of legal convergence and mutual recognition. For the time being, the legal landscape remains… a puzzle.

 

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* Livia Solaro, PhD Candidate at Maastricht University in the Netherlands

** H. Konstantin Jänicke, PhD Candidate at Maastricht University in the Netherlands

This publication is part of the project PRICELESS (with project number KICH1.VE03.21.003) of the research programme KIC which is (partly) financed by the Dutch Research Council (NWO).

Cover image credit 

Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

*Tanisha Rai & **Rahul Kumar

I. Introduction

India’s rich cultural heritage, spanning thousands of years, is a testament to the country’s diverse traditions, philosophies, and artistic achievements. From ancient sculptures and manuscripts to contemporary works of art, these cultural goods represent the soul of the nation and are integral to its identity. However, this heritage is increasingly under threat due to the illicit trafficking of cultural artifacts. The theft, smuggling, and illegal trade of these items not only robs communities of their cultural legacy but also fuels a global black market that undermines heritage preservation efforts.

In recent years, the problem of illicit trafficking has grown more sophisticated, with rural temples, museums, and archaeological sites becoming frequent targets. International demand for unique artifacts, coupled with inadequate documentation and security at heritage sites, has exacerbated the issue. Contemporary cases such as the theft of S.H. Raza’s Prakriti painting and the smuggling of bronze idols from Tamil Nadu highlight the nature of these crimes.

This study sheds light on the gaps in existing legal frameworks and enforcement mechanisms for combating the illicit trafficking of cultural goods in India. It also highlights India’s successes in repatriating stolen artifacts, such as the Vishnu sandstone sculpture, while addressing the challenges faced in the global fight against cultural crimes. Through a contemporary lens, this study aims to analyse the question of ownership and repatriation, offering insights into the global and local dimensions of cultural heritage preservation. It seeks to emphasize the importance of robust legal frameworks, international collaboration, and community engagement in safeguarding India’s cultural treasures for future generations.

II. Understanding Illicit Trafficking of Cultural Goods

Illicit trafficking of cultural goods refers to the unauthorized removal, smuggling, sale, or exchange of artifacts and heritage items that hold historical, artistic, or cultural significance. Such activities undermine the preservation of a nation’s identity and history, often leading to irreversible loss. Illicit trafficking encompasses theft from sites and museums, clandestine excavations, and the forgery of artifacts sold as originals. The global demand for unique and ancient items fuels this trade, often facilitated by organized crime syndicates, collectors, and auction houses.

Historical Context in India

India, with its millennia-old civilization, has always been a target for the plundering of cultural artifacts. The impact of colonialism looms large in this regard, with the British Empire and other colonial powers systematically removing priceless artifacts during their rule. Items like the Koh-I-Noor diamond and the Amravati sculptures are examples of this historical exploitation.

Post-independence, while efforts were made to safeguard heritage sites, rapid urbanization and inadequate security measures left many artifacts vulnerable to theft. Temples in rural areas, archaeological sites, and poorly guarded museums became hotspots for illegal activities. The cultural treasures stolen from India were often sold in black markets or ended up in international auction houses, far removed from their original cultural contexts.

Contemporary Trends in Illicit Trafficking

In recent years, illicit trafficking in India has evolved in complexity. Advances in technology have made it easier for traffickers to forge documentation, create replicas, and smuggle artifacts. Additionally, the global art market’s high valuation of Indian antiquities has amplified the problem. For example, temples in Tamil Nadu have been frequent targets, with numerous ancient idols being smuggled and later surfacing in museums and private collections abroad.

The involvement of international syndicates complicates recovery efforts. Many artifacts stolen decades ago are now untraceable due to inadequate documentation. Efforts to combat this require cross-border cooperation and adherence to conventions like the UNESCO 1970 Convention.

Moreover, the illicit trade in cultural goods deprives India of valuable heritage assets, impacting not just tourism revenue but also the cultural identity of communities. Losing such artifacts erases links to history, making their recovery and preservation critical.

Furthermore, the lack of knowledge and awareness among local communities about the value of these cultural artifacts significantly contributes to their illicit trafficking, making these artifacts vulnerable to exploitation by traffickers, who purchase them at nominal prices before selling them at exponentially higher rates in the global black market. In many rural areas, particularly in temple towns and archaeological hotspots, locals often view these items merely as old religious or artistic objects without fully understanding their historical, cultural, or monetary worth.

Traffickers, often posing as collectors or intermediaries, manipulate local villagers or temple caretakers by offering small sums of money for sculptures, manuscripts, and other heritage items. Since these individuals may not be aware of the global demand or the true significance of the artifacts, they accept these meagre payments, unknowingly aiding in the destruction of their own cultural legacy. For example, an intricately carved Chola bronze idol that could fetch millions in an international auction is sometimes sold for just a few thousand rupees at the local level.

The consequence of these low selling prices extends beyond mere financial loss. By keeping the local supply of stolen artifacts inexpensive, traffickers ensure a steady flow of goods, making it easier to sustain and expand their networks. This, in turn, incentivizes further thefts and illegal excavations, as criminals recognize the ease with which artifacts can be acquired cheaply from uninformed sellers.

III. Contemporary Issues in India

India’s cultural heritage is under constant threat due to the growing incidence of illicit trafficking of cultural goods. In recent years, the theft and smuggling of cultural artifacts has garnered widespread attention. For instance, in September 2024, a painting by renowned Indian artist S.H. Raza, titled Prakriti, was stolen from an auction house’s warehouse in Mumbai. Valued at over ₹2.5 crore, this theft exemplifies the vulnerabilities in safeguarding even contemporary artworks.

One challenge stems from how Auction houses and private collectors often purchase stolen goods, sometimes unknowingly, perpetuating the cycle of theft and illegal trade.

Furthermore, one of the most pressing issues is the absence of a comprehensive, centralized database to document India’s vast array of cultural assets. Rural temples and historical sites, which house countless artifacts of immense historical and artistic value, often lack detailed inventories or photographic records. This makes it difficult to identify and recover stolen artifacts once they are smuggled abroad.

Another challenge is the advanced methods employed by traffickers. Sophisticated techniques, such as digitally forged provenance documents, make it increasingly difficult for authorities to trace the origin of artifacts. These fake records often deceive both collectors and auction houses into believing the artifacts are legitimate, further complicating repatriation efforts. The lack of real-time data-sharing mechanisms between Indian authorities and international agencies exacerbates the issue, allowing stolen artifacts to move across borders undetected.

IV. Repatriation Litigation

Repatriation litigation refers to legal efforts to recover stolen or illegally exported cultural goods from foreign territories. This convention obligates signatory countries to take measures to prevent the illicit import, export, and transfer of ownership of cultural property. India, a signatory since 1977, has leveraged this agreement in numerous cases to reclaim its cultural heritage.

Another vital mechanism is the role of bilateral agreements between India and countries like the United States.These agreements enable direct collaboration for the identification and return of stolen artifacts. Additionally, Interpol’s Stolen Works of Art database and partnerships with organizations like the International Council of Museums (ICOM) have been critical in tracking and recovering artifacts.

Case Studies

1. The Return of the Nalanda Buddha Statue: The Nalanda Buddha statue, a 12th-century bronze artifact, was stolen from a Bihar Museum in the 1960s. Decades later, it resurfaced at a London auction house. Following legal and diplomatic efforts, the Indian government successfully reclaimed the artifact in 2018.

2. Repatriation of the Vishnu Sandstone Sculpture: In 2024, India repatriated a 10th-century sandstone sculpture of Lord Vishnu, smuggled out of Rajasthan and sold to a U.S.-based collector. The artifact’s return was facilitated through a bilateral agreement and negotiations involving the U.S. Department of Homeland Security.

3. Australian Museum Returns: Over the past decade, several Australian museums have returned stolen Indian artifacts, including Chola-era bronze idols and a 6th-century Shiva statue. Many of these artifacts were linked to notorious art smuggler Subhash Kapoor, whose operations spanned multiple continents. The returns were expedited following investigative reporting and collaborative efforts between Indian authorities and Australian institutions.

However, despite the return of these pieces of cultural heritage, thousands more still remain outside the country. It is a significant challenge to prove the origins of artifacts, a process which without detailed records, establishing ownership claims in international courts becomes difficult.

Repatriation cases often involve protracted legal battles in foreign jurisdictions, requiring significant financial and diplomatic resources. Some private collectors and museums resist returning artifacts, citing gaps in legal frameworks or disputing provenance claims. This resistance underscores the need for stronger international enforcement mechanisms.

Repatriation litigation is not just a legal process but a moral imperative to restore cultural heritage to its rightful place. By leveraging international collaborations and improving domestic mechanisms, India can continue to reclaim its invaluable cultural legacy while setting an example for the global community.

V. Recommendations 

India’s cultural heritage is under persistent threat from the illicit trafficking of cultural goods, a crime that not only erodes national identity but also violates the global principle of cultural preservation. From historical looting during colonial times to contemporary thefts fuelled by international demand, the challenge is multifaceted. Thus, the need to fortify India’s legal, technological, and collaborative frameworks to combat this menace is evident. Addressing these gaps requires a holistic approach that integrates legal modernization, technological advancement, and proactive international collaboration.

Enhanced documentation and digitization are imperative for effective protection and recovery. The creation of a comprehensive, publicly accessible national database, housing detailed records and photographs of India’s cultural goods, is non-negotiable. Blockchain technology could play a pivotal role in ensuring transparency and reliability in ownership records and provenance tracking, reducing the chances of forgeries or disputes in international courts. This digitized approach would address the longstanding issue of inadequate documentation, which has often hindered the recovery and repatriation of stolen artifacts.

Technology must also be leveraged to bolster security and recovery efforts. Advanced surveillance systems, including motion detectors and high-definition cameras, should be installed at heritage sites and museums to deter theft. Artificial intelligence can be employed to match recovered artifacts with stolen records or existing collections, expediting identification and recovery. E-governance tools, such as mobile applications, could empower citizens to report suspicious activities around cultural sites, fostering a community-led approach to safeguarding heritage.

Strengthening international collaboration is equally vital in the fight against cultural crimes. India must expand the scope of bilateral agreements to ensure quicker artifact recovery and expedited legal processes. Active engagement with international organizations such as UNESCO, Interpol, and the International Council of Museums (ICOM) is necessary to advocate for stronger global mechanisms against trafficking. These partnerships would also facilitate better intelligence sharing and coordinated operations across borders.

Capacity building is a critical aspect of effective enforcement. Specialized training programs for customs officials, police, and the judiciary on cultural asset crimes and relevant laws would enhance India’s ability to tackle trafficking at multiple levels. Local communities, often the first line of defence for rural temples and sites, should be educated on the value of cultural artifacts and incentivized to protect them through awareness initiatives.

Public awareness campaigns and the promotion of ethical practices in the art market can further reduce demand for stolen artifacts. By highlighting the cultural and historical significance of these goods and exposing the impact of their illicit trade, India can create a more informed public. Advocacy for ethical practices among collectors, museums, and auction houses would also address the root of the demand driving this illegal activity.

Finally, India must expedite repatriation processes. Establishing dedicated legal cells to handle repatriation litigation would ensure quicker responses and robust representation in foreign jurisdictions. Strengthened cultural diplomacy, leveraging India’s soft power, can facilitate smoother negotiations in reclaiming stolen artifacts.

VI. Conclusion

India’s battle against the illicit trafficking of cultural goods is both a legal and moral endeavour to protect its rich heritage for future generations. While the challenges are manifold—ranging from inadequate documentation to advanced smuggling techniques—the successes achieved through ownership and repatriation litigation underscore the potential for effective solutions.

Contemporary cases, such as the theft of S.H. Raza’s painting and the recovery of the Vishnu sandstone sculpture, highlight both the vulnerabilities and resilience of India’s efforts. By strengthening legal frameworks, leveraging technology, enhancing documentation, and fostering international collaboration, India can better protect its cultural treasures.

Furthermore, repatriation is more than just a legal exercise; it is an affirmation of cultural identity and historical justice. As India continues to reclaim stolen artifacts, it sets a precedent for other nations facing similar challenges, underscoring the global responsibility to respect and preserve cultural heritage.

A unified approach involving government bodies, international partners, local communities, and ethical players in the art market will ensure that India’s cultural legacy remains safeguarded, celebrated, and accessible to future generations. This is not just a fight to recover stolen artifacts but a larger movement to protect the soul of a civilization.

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Cover image credit 

Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

*Monday Chinaecherem & **Danladi Christopher

INTRODUCTION 

Recently, the Art Gallery of Ontario showcased the ReBlink exhibit, where digital artist Alex Mayhew transformed classic artworks into interactive experiences through augmented reality (AR). Visitors could use their smartphones to see historical figures from paintings come to life, engaging in modern-day activities and interacting with their surroundings. This innovative approach not only captivated audiences but also prompted discussions about the evolving nature of art in the digital age. As AR gains traction in the art world, it simultaneously exposes the limitations of traditional intellectual property (IP) laws, which were designed for static and tangible works. The integration of digital content into physical spaces raises critical questions about ownership rights, consumer confusion, and the enforcement of trademark protections. For instance, when multiple artists collaborate on a virtual installation viewed through AR, who holds the rights to the resulting creation? Furthermore, as brands leverage AR to project their trademarks onto real-world objects, issues of unauthorized use and potential misrepresentation come to the fore.

This article will examine the integration of AR into the art world, the unique features that distinguish it from other digital technologies, and how existing IP laws apply—or fail to apply—to this emerging art form. The next section will explore the existing IP frameworks and analyze their applicability to AR-based artworks.

EXISTING IP FRAMEWORKS AND THEIR APPLICABILITY TO AR-BASED ARTWORKS IN THE UK AND US

United States

In the US, copyright laws under the Copyright Act of 1976 protect “original works of authorship, (§ 102)” including digital creations. For AR art, the digital elements may qualify for protection if they meet originality and fixation requirements. In Stern Electronics Inc. v. Kaufman 669 F.2d 852 (2d Cir. 1982), the court addressed the copyrightability of video games. The court ruled that video games qualify for copyright protection as audiovisual works, emphasizing that the combination of visual elements, sound, and interactivity can meet the originality requirement. Similarly, the court in Atari Games Corp. v. Oman 979 F. 2d. 242 (D.C. Cir. 1992) held that the visual displays of video games, even those with simple geometric shapes, can be protected under copyright law if they exhibit sufficient creativity. However, the interactive nature of AR—where audiences can manipulate or contribute to the artwork—complicates the determination of authorship.  Unlike traditional static art, AR art is dynamic and can change based on user interaction. This raises questions about whether users who alter the artwork have any claim to authorship, or if the original creator retains full control.

Since the U.S. Copyright Act does not clearly address this issue, it remains unclear how to assign authorship when users play an active role in shaping artwork’s content. As AR art continues to evolve, the law must adapt to these new challenges, and legal scholars are exploring ways to better define the scope of copyright protection for interactive works.

While copyright protects the creative aspects of AR, patents cover the technological innovations that make these experiences possible. The U.S. Patent Act establishes robust protections for technological innovations, making it a cornerstone of IP law in the country. Patents can be granted for inventions that meet three key criteria: they must be novel (§ 102), non-obvious (§103), and useful (§101). This framework has been instrumental in protecting AR hardware and software innovations, such as AR headsets, motion sensors, and immersive technology platforms. However, patents rarely extend to the creative expressions or artistic content embedded within AR experiences. This limitation arises because patents are designed to protect human inventions and processes, not creative works which are typically covered by copyright law or AR innovations.

The case of Alice Corp. v. CLS Bank International 573 U.S. 208 (2014)  is particularly relevant. The Supreme Court established a two-step test for determining patent eligibility, focusing on whether the invention is directed to an abstract idea and whether it includes an inventive concept sufficient to transform the abstract idea into a patent-eligible application. This decision has impacted software patents, including AR-related technologies, by making it harder to patent abstract ideas like algorithms without demonstrating their practical application.

Building on the foundational protections offered by copyright and patent laws, trademarks introduce another layer of complexity in the AR space. Whilst copyright safeguards creative expressions and patents secure technological innovations, trademarks focus on maintaining the integrity of brand identities.

In the United States, trademarks are governed by the Lanham Act (Trademark Act of 1946), which protects brand identifiers such as logos, names, and service marks from misuse that could confuse consumers or harm a brand’s reputation. However, applying these protections in AR environments presents distinct challenges.  A notable challenge involves the unauthorized projection of trademarks into virtual spaces. For example, in the case of In re Diesel Power Gear, LLCNo. 1:2019cv09308 – Document 122 (S.D.N.Y. 2023), the misuse of trademarks in digital advertisements was scrutinized. Extending this to AR, an app could project the logo of a high-end fashion brand onto generic clothing in a virtual try-on experience. This misrepresentation could dilute the brand’s value, causing consumer confusion and devaluing the trademark’s exclusivity.

United Kingdom

The UK’s copyright framework is governed by the Copyright, Designs and Patents Act 1988. Like the US, it protects “original works”, including digital creations (section 1&3). For AR artworks, protection is afforded if they exhibit originality and are fixed in a tangible medium. However, the interactive nature of AR raises questions about authorship. The Nova Productions Ltd v Mazooma Games Ltd [2007] EWCA Civ 219  case supports the copyright ability of foundational elements in interactive works, but does not necessarily extend protection to all aspects of user interaction, such as transient or real-time outputs in AR applications.

Patents in the UK are regulated by the Patents Act 1977 aligned with the European Patent Convention (EPC). Innovations in AR hardware and software may be patentable if they meet the criteria of novelty(Section 2(1)), inventive step(Section 1(1)(b)), and industrial applicability(Section 1(1)(c)). For instance, AR technologies such as holographic devices or motion-capture systems could qualify for patents. However, like in the US, patents in the UK do not extend to creative expressions or artistic content created by Augmented Reality as seen in  Thaler v. Comptroller-General of Patents, Designs and Trade Marks [2023] UKSC 2021-0201  where the UK Supreme Court ruled that an artificial intelligence system cannot be named as an inventor under UK patent law, reaffirming that patents must be attributed to a natural person.

Trademark protection in the UK is governed by the Trade Marks Act 1994. Trademarks protect brand identifiers such as designs, letters, numerals, colours, sounds or the shape of goods or their packaging (Section 1(1)). In the context of AR, challenges include unauthorized use of trademarks in virtual spaces, leading to potential consumer confusion and/or brand dilution. A hypothetical example is an AR app projecting a well-known car brand’s logo onto a generic vehicle, creating a false association.

Comparatively, the frameworks of the two jurisdictions provide robust protections for traditional innovations but differ in application even though it can be implied that AR works may qualify if they meet certain requirements. The UK’s CDPA emphasizes originality but offers similar protections to the US Copyright Act for dynamic works. Patent frameworks in both jurisdictions align on criteria for protection, but the UK’s approach is closely tied to European standards, which may influence cross-border patent disputes. Trademark laws in both countries address unauthorized use but face challenges in AR environments where virtual misrepresentation is easier. Overall, while the legal foundations are similar, differences in interpretation and enforcement highlight the importance of tailoring strategies to each jurisdiction.

LEGAL ISSUES AND THE PRACTICAL WAY FORWARD

From the foregoing, it is evident that the integration of augmented reality into the art world has not only prompted a host of legal issues but has also occasioned critical ethical dilemmas that require consideration. One of the prime legal concerns is the applicability of existing intellectual property laws to AR art, which often blurs the lines between traditional copyright, trademark, and patent protections. Traditional IP laws were essentially designed for static and tangible works, making them ill-equipped to handle the dynamic and interactive nature of AR art. This precipitates the issue of real authorship in collaborative projects: if multiple artist contribute in an AR piece, who is said to own the rights to the final work? Also, as brands utilize AR to project their trademark in real world settings, questions ofunauthorized use and potential misrepresentation become more prominent, leading to dispute over ownership and rights that current laws may not clearly resolve. Ethically, AR art upsurges significant challenges related to cultural appropriation and the representation of marginalized communities. As artists create immersive experiences that draw from various cultural backgrounds, there is a risk of exploiting these cultures without proper acknowledgement or respect. This can perpetuate stereotypes and lessen the authenticity of cultural expressions. The interactive nature of AR allows users to manipulate artworks, which consequently complicates ethical considerations about consent and integrity of the original work.

Although addressing these issues maybe a daunting task, it is well within our capabilities. Finding effective solutions will necessitate deliberate and collective efforts from all parties involved. First, there is a pressing need for legislative reform that modernizes IP laws to better accommodate the unique characteristics of AR and art. Policy-makers should ruminate on creating specific frameworks that define authorship, ownership, and rights in collaborative digital environments. This could be done by establishing guidelines on how contributions are recognized and rights allocated among participants in AR projects.

Strategic collaboration with international organizations focused on IP rights like the WIPO- can establish global standards for AR art that transcend national boundaries. This will help in enhancing cross-border enforcement issues and ensure that creators’ rights are protected regardless of jurisdiction.

Additionally, scholastic initiatives, workshops, and forums can facilitate discussions on cultural sensitivity, and foster intelligent dialogue among artists, legal experts, and cultural representatives, with the aim of promoting awareness of IP rights and ethical considerations in AR art. Relevant stakeholders can further create a more informed community where artists are equipped with knowledge about their rights and responsibilities, and educate audiences on how to judiciously engage with AR art.

CONCLUSION

The digital age has occasioned an intense change to how visual and performing artworks are created and displayed for viable purposes. While this shift poses substantial challenges to copyright concepts, new technologies have also opened an avenue for creative expression and expanded audience engagement. However, since existing laws often struggle to keep pace with digital advancements, updating and harmonizing IP regulations would balance and protect artists’ rights along with the benefits of an open internet and enhance a vibrant creative ecosystem while sustaining the cultural interest of society.

 

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* Monday Chinaecherem, University of Nigeria

** Danladi Christopher, University of Nigeria

 

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Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

*Lucas Felipe Cabral de Aquino & **Marcílio Toscano Franca Filho

1 Introduction

The importance of religious cultural heritage has been recognized by several international organizations, such as UNESCO, through the 2010 Statement on the Protection of Religious Properties within the Framework of the World Heritage Convention; and the General Assembly of the United Nations, via Resolution n. 55/254. Besides speaking only to a specific religious community, these cultural goods are also relevant to humanity’s cultural identity.

However, despite of its relevance, it is difficult to find a proper conceptualization of religious cultural heritage, distinguishing it from the “secular” cultural heritage, which creates barriers to its effective protection and promotion, especially when, besides the traditional dangers to cultural heritage— such as depredation, theft, illicit traffic, poor preservation—new challenges arise from the consequences of climate change and the rise of religious intolerance. Given its intrinsic relation with religious practices and manifestations, international and domestic norms must delineate a special protection system able to consider its peculiarities. To privilege historic, artistic, and technical criteria when dealing with religious cultural heritage is to relegate to the background the distinctive mark of these goods: their sacredness and their relationship with the active life of the religion.

In the present work, we aim to present an initial debate towards the conceptualization of religious cultural heritage, understanding that it is closely dependent on the definition of variable ideas, such as what is “religion” and what is “sacred”. It is certain, however, that religious cultural heritage is composed of a diverse series of sacred places, monuments, buildings, works of art, rites, traditions, costumes, practices, and many other forms of tangible and intangible goods.

2 Brief consideration on “cultural heritage”

Different legal diplomas give different meanings to “cultural heritage”. They can be complementary; or represent the transformations in the relationship between society and its heritage. Yet there always is a common point: the capacity to express cultural values while identifying their singular and distinctive characteristics (Lemme 2000, 610).

The shift from the idea of cultural property to a broader sense of cultural heritage allowed the cultural goods protected by the 1972 World Heritage Convention to be “understood as the inherited patrimony of culture, inclusive of the intangible heritage and living culture, and its relation to socio-economic aspects.” (Francioni 2020, 251) In this sense, article 1 of the 1972 Convention utilizes the “exceptional universal value” as the distinguishing mark of cultural heritage. Despite efforts made by the World Heritage Centre to clarify the criteria for inclusion on the World Heritage List, difficulties persist in including cultural heritage of Latin American, African, and Asian-Pacific countries,¹ since much of its heritage is of intangible nature (Blake 2020, 347). This led to the elaboration of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. Considering the peculiarities of intangible heritage—both in terms of its characteristics and of its protection—the 2003 Convention conceptualizes it as practices, representations, expressions, knowledge, and techniques recognized by a particular group, community or individual as an integral part of its cultural heritage. By doing so, the 2003 Convention also serves as a paradigm for the protection of cultural diversity, adopting a very broad concept capable of including different forms of “traditional” cultural manifestations. Thus, the UNESCO Conventions serve as International Cultural Heritage Law frameworks: one based on the “exceptionality” criteria; and another related to the peoples’ identity.

In this sense, Nathalie Heinich (2010/2011, 122-125), in an axiological analysis of cultural heritage, outlines five fundamental values that are immanent in the selection of goods that could receive such qualification: authenticity, antiquity, rarity, beauty, and meaning. Each of these values—except for rarity—can be associated to a broader “value register”: antiquity, to the “domestic” register, translating a notion of respect, belonging, trust, and concern with transmission; authenticity, to the “purifying” register, linked to integrity and connection with origins; meaning, to the “hermeneutic” register, implying the search for signification; and beauty to the “aesthetic” register, connected to notions of art. Heinich also states that the “value registers” can be separated into two “value realms”: the “singularity realm” and the “community realm.” Since rarity does not fit into any “value register”, it and its opposite, multiplicity, serve as “orthogonal values” that are capable of reinforcing or weakening other values. Therefore, a “singular realm” values what is rare, reflecting the notions of the 1972 Convention; while a “community realm” values the original artistic manifestations linked to the memory of a certain people, which its members are concerned with transmitting to future generations, reflecting the notions of the 2003 Convention. Thus, we understand that the values listed by the author—authenticity, antiquity, rarity, beauty, and meaning—are adequate for the analysis undertaken in the present work.

3 “Religiousness” from the point of view of Cultural Heritage Law

Religious cultural heritage can be understood as the set of tangible and intangible goods—taken individually or in groups—relevant for at least one religious group. Once its importance relies in its sacred function, distinguishing it from “secular” cultural heritage (Faria 2015, 595), its defining core is sacrality, given its exclusion from “profane” uses and its destination to public or private religious cult (Menis 1994, 35). Since there is a link between “religious cultural heritage” and “religious manifestation”, it is necessary to delineate the latter for the understanding of the former.

From a theoretical intertwining between Peter Berger’s sociological theory of religion and Viktor Frankl’s existential analysis, Thiago Aquino (2023, 8) conceptualizes religion as being

“a worldview, a nomos that expresses itself through a belief in an instance of cosmic evolution that would transcend the reality of ordinary experience and that is not subject to rational apprehension. The purpose of this belief would be to make the human being conscious, through the symbol referring to this greater reality, placating both the terror of emptiness and the restlessness about the enigmas and the final meaning of human existence.”²

The religious cultural heritage relates to manifestations that express a transcendental worldview imbued with symbolic meaning that guide individuals and provide a deeper understanding of existence. From this, three conclusions are derived: (i) not every good belonging to a religious group is a cultural good; (ii) not every cultural asset belonging to a religious group is cultural heritage; and (iii) not all cultural heritage belonging to a religious group is religious cultural heritage. At first glance, the third conclusion may seem contradictory, however it becomes necessary when not adopting self-definition as a defining mark of religiosity. Thus, only those assets that translate religiosity in combination with aesthetic and historical elements would be accepted as “religious cultural heritage” (Tsivolas 2014, 39-49). For example, if a religious order manages a museum containing a painting with no sacred content that was made by a major historical artist, this work of art may be cultural heritage, but not religious cultural heritage.

Moreover, the religious character does not result in the exclusive enjoyment by the religious community. As said by Maria Cornu (2022, 50):

“These assets of collective interest, when designated as elements of cultural heritage, are more closely aligned with extra-commerciality. They are public things, in the sense that they belong to everyone, beyond the idea of being objects of property. This constitutes a collective heritage, and public cultural spaces such as museums are particularly appropriate ‘enclaves’ for housing these things outside of commerce.”³

In that sense, Theodosios Tsivolas (2014, 40-43) argues that religious cultural heritage should be glimpsed from the trinomial faith-memory-aesthetics. Besides being a testimony of sacredness, religious cultural heritage is also a symbol of religious memory, translating a complex physiognomy that deciphers changes in religious practices over the centuries. Conserving a religious cultural asset has as a direct consequence the maintenance of distinct layers referring to the unique moments in the society’s identity construction. The plethora of religious beliefs and dogmas translated in the symbols incorporated into a given cultural assets have an ambivalent function: it is essential for its devotional purposes, since they are manifestations of the values and norms sustained by religion; while also allowing the “secular enjoyment of religious beauty”, since religions have historically served as a source of inspiration and support for art (Tsivolas 2014, 43-46).

4 Sacrality as an immanent value of the religious cultural heritage 

International Law seems to recognize, even in tangible heritage, intangible elements that deserve protection. In doing so, Cultural Heritage Law is not only concerned with the cultural object or the manifestation itself, but with the relationship between the cultural heritage and the people’s response to it (Tsivolas 2017, 20-22). Therefore, by protecting a certain religious cultural heritage, whether tangible or intangible, one is protecting the transcendental and symbolic worldview that guides the individuals of a certain religious group. In other words, one protects the sacredness of that good and the way in which individuals of a given religious community relate to it.

Thus, it is possible to affirm that, in addition to the values listed above—authenticity, antiquity, rarity, beauty, and meaning—sacredness is an immanent value of the protection of religious cultural heritage. This leads to the following problem: how can Law define what is sacred? We do not aim to make a taxonomy of sacred objects, practices, and sites, since sacredness manifests itself in different ways among different religions. However, some considerations are necessary.

The “sacred” is the term by which the individuals tries to translate what is most essential in their religious experience (Ries 2017, 71). According to Mircea Eliade (Eliade1959, 10), the simplest definition of the sacred is precisely its opposition to the profane, which, according to the author, allows the individual to become aware of the existence of the former. The fact that the sacred manifests itself to the human being is called “hierophany”, which includes in its meaning the entire religious phenomenon (Ries 2017, 72). From the inherent scope of hierophany derives its heterogeneity, which translates the broad scope of tangible and intangible goods that can be considered religious cultural heritage, since “each of these categories has its own morphology that reveals, at the same time, a modality of the sacred and a specific situation of the human being in relation to the sacred” (Ries 2017, 73).⁴ If the simplest of objects comes to be regarded as a hierophany, even though it retains its former physical properties, it is transubstantiated in the eyes of the religious person into something that reveals a connection with that particular cosmological view (Eliade 1959, 12). As Eliade (1959, 12) states, “the sacred tree, the sacred stone are not adored as stone or tree; they are worshipped precisely because they are hierophanies, because they show something that is no longer stone or tree but the sacred, the ganz andere.”

Eliade also distinguishes three elements within the structure of hierophany: (i) the natural object; (ii) the transcendental reality; and (iii) the mediating object clothed with sacredness. From the latter, emerges a symbol that acts as a “mediator between the unattainable transcendence of God and man”, so that “the Sacred symbolically transfigures the reality of the world of man” (Greco 2009, 61).

Therefore, when we argue that sacredness is an immanent value of religious cultural heritage, we aim to affirm that, allied to the protection of what is valued, before a community, for its authenticity, antiquity, rarity, beauty, and meaning,⁵ it also protects what is most essential for a given religious community: the relationship with the transcendental figure.

5 Final considerations

From what has been previously discussed, we can conclude that one cannot simply define religious cultural heritage as the heritage pertinent to a specific religious group, given that the notion of “religion” is mostly variable. Thus, we propose the idea that religious cultural heritage is related to manifestations that express a transcendental worldview imbued with symbolic meaning that guide individuals, while providing a deeper understanding of existence, based on Aquino’s analysis of Berger’s and Frankl’s theories.

This leads to the understanding that not all cultural heritage belonging to a religious group can be classified as religious cultural heritage, and that the special protection given to this cultural heritage seeks to protect the good itself, its sacredness, and the way in which individuals of a given religious community relate to it. A move towards this direction would lead Cultural Heritage Law to recognize a plethora of tangible and intangible religious goods of marginalized religious denominations, besides leading to a better preservation status of the already recognized religious cultural heritage.

 

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The present paper was written with the support of the Coordenação de Aperfeiçoamento de Pessoal de Nível Superior – Brasil (CAPES) (Brazilian Coordination for the Improvement of Higher Education Personnel).

* Lucas Aquino

Master’s student in the Postgraduate Program in Legal Sciences at the Federal University of Paraíba (PPGCJ-UFPB). Bachelor of Laws from the Federal University of Paraíba (2018-2022). Researcher at the International Laboratory for Research in Transjuridicality (LABIRINT).

**Marcílio Toscano Franca Filho

Arbitrator in the World Intellectual Property Organization Arbitration and Mediation Center (WIPO, Geneva/Singapore), in the Court of Arbitration for Art (CAfA) and in the Latin American Arbitration and Mediation Center (LatCam, Asunción). Former arbitrator in the MERCOSUR Tribunal (Asunción). Professor of Public Law at the Federal University of Paraíba (UFPB, Brazil) and Prosecutor General at the Prosecution Office at the Audit Court of Paraíba (MPC, Brazil), where he chairs the Taskforce on Cultural Heritage Protection. Member of the UNIDROIT Working Group on Art Collections. Visiting Professor in Turin, Pisa and Ghent, Research Fellow at the Collegio Carlo Alberto (CCA, Turin) and Calouste Gulbenkian Fellow at the European University Institute (EUI, Florence). Member of the Executive Council, and the International Law Commission on Cultural Heritage, International Law Association (London, United Kingdom). Member of TIAMSA – the International Art Market Studies Association; the Instituto Hispano-Luso-Americano de Direito Internacional (IHLADI); the Istituto Nazionale per il Diritto Dell’arte e dei Beni Culturali (INDAC, Italy), and the 1995 UNIDROIT Convention Academic Project (Rome, Italy).

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Editor’s Note: This article is part of a collaboration between the Harvard Art Law Organization and the Harvard International Law Journal.

*Juan Carlos Portilla

Introduction

The succinct response to the question posed is affirmative. The Financial Action Task Force (“FATF”), the global money laundering and terrorist financing watchdog, has yet to establish international standards that would incorporate the global art market into its designated non-financial businesses and professions (“DNFBPs”) framework.

The financial sector (banking, securities broker-dealers, fintech, and virtual assets) and DNFBPs (casinos, real estate agents, lawyers, notaries, accountants, trust service providers, and dealers in precious metals and stones) are governed by stringent anti-money laundering (“AML”) regulations. Nevertheless, the art market operates under relatively lax anti-financial crime regulations and oversight across various jurisdictions globally. The lack of a clear international framework from FATF has hindered both nations and art market participants from establishing compliance regulations and policies. Specifically, this absence of guidance affects the implementation of “Know Your Customer” protocols—which prohibit financial institutions from opening accounts anonymously or under a false name, due diligence obligations, transparency regarding beneficial ownership of legal entities involved in art transactions, and the reporting of suspicious activities to relevant authorities.

The absence of a comprehensive global regime regulating the art market renders it particularly susceptible to transnational financial crime, including money laundering, terrorist financing, and proliferation financing.  Such a regime should not only incorporate know your customer and due diligence obligations, transparency regarding beneficial ownership of legal entities involved in art deals, and the reporting of suspicious activity, but also the prohibition of engaging in business transactions with sanctioned entities.

The European Union’s Fifth Anti-Money Laundering Directive includes anti-money laundering obligations to art brokers, auction houses, and storage providers, particularly for transactions exceeding €10,000. The proposed Illicit Art and Antiquities Prevention Act in the U.S. Congress would also require art and antiquities dealers to implement AML programs. However, there remains an urgent need for FATF to address the deficiencies in international anti-financial crime legislation to prevent art market money laundering. The objective for FATF should be to encourage its member states worldwide to implement AML programs specifically tailored to participants in the art market. In the future, the FATF mutual evaluation process should incorporate an assessment to determine whether member states comply with an FATF global standard aimed at combating transnational financial crime within the global art market.

To advocate for a new FAFT global standard aimed at safeguarding the art market from transnational financial crime, it is crucial to address several key issues: the role of FAFT in combating transnational financial crime; an understanding of transnational financial crime itself; its prevalence within the global art market; the increasing incidence of money laundering operations in the art sector; the implications of anonymity and secrecy in art transactions; and the necessity of establishing a comprehensive data system that can guide international lawmakers in tackling art-related money laundering more effectively. The remainer of this article will delineate these issues.

The Role of FAFT and its Framework in Combating Transnational Financial Crime

FATF is not a treaty-based international organization but rather a task force composed of member states. FAFT was established in 1989 at the initiative of the G7 to formulate policies aimed at combating money laundering. In 2001, its mandate was broadened to include terrorist financing. FATF is hosted by the Organization for Economic Cooperation and Development (“OECD”) in Paris. FAFT issues international standards, also referred to as the FAFT 40 Recommendations, on combating money laundering, the financing of terrorism, and proliferation financing.

FAFT 40 Recommendations are categorized as soft law by scholars. International legislators often adopt the soft law approach, as a design choice. Soft law offers several advantages over treaty law, including greater flexibility for states to cope with complex issues, such as money laundering, and lower negotiation costs. FATF strives to cultivate the political will necessary for enacting national legislative reforms in these critical areas. FATF empowers national authorities to effectively pursue illicit funds associated with drug trafficking, the illegal arms trade, cyber fraud, and other serious offenses. To date, over 200 countries and jurisdictions have committed to implementing the FATF’s standards as part of a coordinated global initiative aimed at preventing transnational financial crime.

Understanding Transnational Financial Crime

Transnational financial crimes include money laundering, terrorist financing, and the financing of proliferation of weapons of mass destruction. Transnational crimes occur across borders and are highly profitable for organized crime. These include art crime, securities fraud, tax evasion, corruption, cybercrime, and illicit cryptocurrency use. Additionally, transnational organized crime is involved in money laundering, terrorist financing, and proliferation financing. The focal point of this conflict lies within the international financial system, as organized crime relies on it to launder the profits from their crimes. The emergence of transnational financial crime is largely due to globalization and deregulation of financial markets, leading to unprecedent cross-border money transactions involving individuals, companies, and financial institutions.

Money laundering is a significant concern for international policymakers. Money laundering is the process by which criminals disguise and legitimize their financial gains from illegal activities, transforming “dirty money” into “clean” funds. Key tactics involve maintaining anonymity and secrecy to avoid scrutiny of the money’s origins. Criminals obscure the source of their profits, alter the form of the money, or move it to tax haven jurisdictions to avoid detection. FATF and the United Nations (“UN”) have implemented global regulations to address the issue of money laundering. Nonetheless, international policymakers like FATF have struggled to combat money laundering in the art market. Interventions are necessary to close regulatory gaps due to several concerns: The increasing money laundering activities among art market participants, anonymity in art transactions, reliance on shell companies, and the urgent need for a comprehensive data system to aid global lawmakers in tackling art-related money laundering effectively.

Art Market Money Laundering

Money launderers found a niche within the art market. Criminal enterprises have realized the potential of the art market as a vehicle for money laundering due to its unique characteristics and vulnerabilities. The Financial Crime Academy indicates that only 25-30% of art transactions occur through banks, highlighting the prevalence of cash transactions and difficulties in tracing funds. A major vulnerability within the art market stems from the high level of anonymity and secrecy that often accompanies art transactions. Common schemes include shell companies that hide true ownership of artworks and facilitate illegal financial activities. The absence of regulation and oversight in the art market exacerbates its susceptibility to various risks, with estimates suggesting that over $3 billion in art market transactions are linked to suspicious activities each year.

Methods for laundering money through art and antiques include the use of artworks as collateral for loans, the role of freeports, and participating in anonymous purchases and resales. White-collar criminals are often driven to engage in anonymous transactions involving the purchase and resale of art as a means of laundering illicit funds. The Beaufort case exemplifies this contemporary and discreet method of money laundering within the art market. In the past, Beaufort Securities, a firm based in Mauritius and accused of fraud, stock manipulation, and money laundering, successfully laundered their illicit gains by depositing money under fake identities in offshore banks and gradually integrating these funds into the global banking system. However, their biggest challenge was disguising these illegal profits as legitimate income. Matthew Green, who grew up in a family devoted to fine arts, with his father owning renowned galleries, became the crucial link that opened the art market for Beaufort Securities to cleanse their tainted money.

At 51, Green was poised to inherit the family business, but in late 2017, he became entangled with Beaufort Securities. He was then approached by the Beaufort conspirators, one of whom was in fact an undercover U.S. federal agent who had infiltrated Beaufort. Green reportedly agreed to receive £6.7 million (around $9 million at that time) derived from securities fraud in return for a 1965 Picasso, titled Personnages. Green would create fraudulent ownership documents indicating that the artwork had been sold, while actually keeping the Picasso securely stored. Later on, he would feign a purchase of the painting back from his co-conspirators at a reduced price, pocketing 5 to 10 percent of the laundered funds for himself.

The methods employed by Green and others involved in the Picasso scheme are still relatively easy to replicate Green exploited a regulatory loophole that legislators in the U.S and Europe are actively working to close. Unlike financial institutions, lawyers, casinos, currency exchange services, and even precious metals dealers, auction houses and art sellers are not required to report large cash transactions to any governing body. Dealers can keep both buyers’ and sellers’ anonymity. Unlike US businesses managing large sums, they are not required to report suspicious money origins to the U.S. Treasury Department.

Data System to Guide International Lawmakers in Addressing Art-Related Money Laundering Effectively

The legitimate global art market was valued at approximately $67.4 billion in 2018, while the underground art market, involving thefts and forgeries, may generate up to $6 billion annually, according to the United Nations Office on Drugs and Crime (“UNODC”). Furthermore, a 2009 UNODC report estimated that global money laundering amounted to 2-5 percent of the world’s GDP, equating to $800 billion – $2 trillion in current U.S. dollars annually. The data referenced above originates from the years 2009 and 2018, respectively. UNODC acknowledged that due to the clandestine nature of money-laundering, it is challenging to estimate the total amount of money that goes through the laundering cycle. Outdated information falls short in equipping policymakers with the necessary insights to issue international regulation against art-related money laundering. Consequently, utilizing data is essential in addressing art-related money laundering. The international community needs universally accepted frameworks that leverage data to assess the effectiveness of efforts against art-related money laundering.

Essential Components of a Global Standard to Combat Transnational Financial Crime in the Art Market

The fundamental elements of an international standard aimed at combating money laundering in the art market should encompass customer due diligence (“CDD”) measures, record-keeping requirements, and the reporting of suspicious activities. Art market participants should apply CDD when forming business relationships, suspecting illicit activities, or questioning prior customer identification information. The necessary CDD measures may include: (a) identifying the customer and confirming their identity through reliable, independent source documents, data, or information; and (b) identifying the beneficial owner and taking reasonable steps to verify their identity. For legal entities and arrangements, this involves art market participants comprehending the client’s ownership and control structure. Moreover, art market participants should maintain detailed records of all transactions, both domestic and international, to respond to authorities’ information requests. These records should allow for the reconstruction of transactions, including currency types and amounts, to aid in prosecuting criminal activities. Finally, if a participant in the art market suspects, or has reasonable grounds to suspect, that funds may be derived from criminal activities or are associated with terrorist financing related to such activities, it should be mandated by law to promptly report these suspicions to the financial intelligence unit in the jurisdiction of their domicile.

Conclusion

To summarize, this article proposes a new FATF global standard to protect the art market from transnational financial crime. While the financial sector and DNFBP face strict AML regulations, the art market lacks strong oversight, making it vulnerable to money laundering. The absence of a clear international framework from FATF hinders compliance in the art market, impacting KYC protocols, due diligence, transparency in ownership, and suspicious activity reporting. In short, FATF needs to integrate the global art market into its framework for DNFBPs.

 

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* Juan Carlos Portilla, International Financial Law Professor, Sabana Law School

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