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Art Law in China
Art Law in China
For quite a long time in China’s contemparary art history（1）, artistic creation, guided by the slogan “literature and art should be subordinated to palitics,”(2) was carried out mainly as a “political task” or as a “tool for propaganda”, and therefore art had tittle to do with law. In the early 1980s, after the opening to find a way out for the artworks which were gradually changing in nature from merely tools to art commodities, raised the issue of art commercialization(3) though they never raised the issue of art law because most artworks at that time were traded in private or in stores with the characteristics of planned economy.
From the early 1970s to the late 1980s, the art speculation by western and especially Japanese wealthy people caused the price of artworks to soar all the way to an unprecedented high level(4). By the end of this art investment rush, art markets in China were awakened. People, no longer shy of talking about the trading of artworks, offered them for sale openly, asked prices directly and even put them up to auction.(5) Art appeared in markets and came to the ordinary people. With the development of artwork business came up the issue of art law. A few keen artists, critics and legal workers, driven by their professional need and strong interest in art, began to study and analize this new phenomenon - the marriage between art and law. They wrote books and gave lectures, providing legal aids to people in the art markets and offering advice and measures to cultural administration departments. The era of art law finally came to China.
Section I. Legislation On Art
In China, art law concerns such legal problems as involved in the creation, exploration, production,sale,transfer, exhibition and collection of artworks and cultural assets. These legal problems consist of the import, export, auction and authentication of artworks, insuranec, tax, freedom of speech, and the protection of intellectual property, etc - problems which have to be solved and regulated by many kinds of laws and regulations rather than a single rule.(6)
A. Copyright Law
The protection of artist’s rights is one of the main contents(7) in art Law. While China’s Constitution corfirmed its citizens’ freedom in art creation long ago,(8) the first law to protect artists’ intellectual property rights had not come into being until 1990 when the copyright law of the Preople’s Republie of China was promulgated.
It should be pointed out that, from the very beginning, China’s Copyright Law set a high standard for itself in its protection of artists. For instance, by the law photographic works and works of fine arts are placed under the same provision as common protected works, and therefore the term of protection of photographic works is set to 50 years after the author’s death, the same as that for works of fine arts.(9)
The term of protection of photographic works in Berne Convention is 25 years,(10) different from that of works of fine arts. As for architectural works, Rules for the Implementation of the Copyright Law defines it as works of plestic art,(11)which is in accordance with the requirements of the Berne Convention. The Copyright law does not make any clear provisions on works of applied art, but International Copyright Treaties Implementing Rules provides that works of applied art by foreigners enjoy 25 years of protection.(12)
The Copyright Law stipulates, “the copyright in a work belongs to its author”,(13) and “the author of a work is the citizen who has created the work”.(14) That is to say, only those artists who engage in the creation of fine arts are the real authors and would enjoy the copyright. In respect of commissioned works, the commissioning party could acquire the copyright by a contract or an agreemcnt even if they have not engaged in the creation of the work”. However, the provision further stipulates, “in the absence of a contract or of an explicit agreement in the contract, the copyright in such a work shall belong to the commissioned party”.(15) This stipulation places under a favorabll condition the commissioned party, who has not entered into a contract or who has entered into a contract which does not give an explicit agreement.
It is necessary to distinguish the ownership of the original copy and the copyright, because, in most cases, the use of the works of fine arts only relates to the original copies. The Copyright Law says,“ the transfer of the ownership of the original copy of a work of fine arts or other works, shall not be deemed to include the transfer of the copyright in such a work, provided that the right to exhibit the original copy of a work of fine arts shall be enjoyed by the owner of such original copy.” (16)When the ownership of the original copy has been transfered the owner of the original copy would still be in a favorable position. Therefore, it is feasible for him/her to enjoy the right of exhibition. However, the extention of the said right should be limited, and in addition, some problems could be solved by contracts（17）. So it is stipulated, for example, that the owner of the original copy shall not exhibit a work if the artist of the work does not agree to have his work exhibited; and that the owner of the original copy, without reasonable reasons, should not refuse the request of the author to borrow back his work for exhibition. It can be concluded from this provision that, except for the right of exhibition, the artist who has transfered the ownership of his work still keeps the right of publication, modification, reproduction, etc., which are provided for by the Copyright Law. However, the Law does not stipulate how to guarantee the exercise of the said rights.(18)
The main limitations upon artists’ copyright are: to allow a person to use a published work for his own private study, research or self-entertainment; to allow a educational or scientific institution to reproduce a published work in a small quantity for teaching or scientific purposes, but not for publication; to allow a library, museum or art gallery to reproduce a work in its collections for display, or for preservation of a copy, of the work; and to deem it reasonable for people to copy or to take pictures of an artistic work located or on display in an outdoor public places.(19)
As a great number of forged works which are actually imitations of the excellent works of famous artists have been found in art markets, the Copyright Law specially stipulates, “producing or selling a work of fine arts where the signature of an artist is counterfeited”(20) is an infringement act and the infringer shall shoulder the liabilities, depending upon the circumstances, of ceasing the infringing act, eliminating the effects of the act, making a public apology or paying compensation for damages,and may be subjected by a copyright administration department to such administration penalties as confiscation of unlawful income from the act, a fine etc. Article 217 of the Criminal Law of the People’s Republic of China, effective on October lst, 1997, stipulates that anyone who, for the purpose of making profits, produces or sells a work of fine arts where the signature of an artist is counterfeited may be sentenced to from three to seven years in prison plus a fine.
In order to strongly protect the intellectual property rights of artists, China has, in addition, promulgated and implemented the Trademark Law, the Patent Law, the Law against Unfair Competition, etc.(21)
B. Auction Law
As a means of trading, auction, with a long history behind it,(22) is perhaps the best way of trading artwarks with unique cultural values. This is because the price of a speicfic piece of artwork changes in value depend not only on the materials consumed in the creation of the work but also on its artistic charms, the presnt social status of the artist, the number of similar artworks in existence, and the possibility of its appreciation in value inferred from the sales of other artworks by the same artist. In measuring these invisible factors, auction is quite effective.(23) However, since socialism was established in China, auction had been denied as something belonging to capitalism, and therefore, for quite a long time, the prices of the few artworks sold a little now and a little then had been decided in accordance with their sizes. After the third plenary session of the Communist Party of China, with the implementation of China’s policy of reform and opening to the outside world and with the development of market economy, auction, adapted to the requirement of a fair, competitive and open market, revived as a special means of trading. In 1989, the first state - owned auction shop in China was established in Guangzhou, and in the following ten years hundreds of auction enterprises engaged in the auction of artworks besides other commodities have been established in Beijing, Tianjin, Shanghai, Shenyang, Dalian, Changchun, Harbin, etc. Some local regulations on auction have also been promulgated by the departments concerned.(24)
The Auction Law of the People’s Republic of China, adopted at the 20th meeting of the standing committee of the Eingth National Reople’s Congress on July 5th, 1996, and effective on January lst, 1997, affirmed that auction is a kind of “trading in which a certain article or property right is transfered to one who offers the highest price in an open competitive bidding.”(25)
The Auction law also stipulates, “ Auction should be carried out in accordance with relevant laws and administation rules and should follow the principles of openness, fairness, justice, honesty and trustworthiness.”(26) Auction needs to atract a lot of bidders to participate in it, and the preparation for the auction, the auction commissconing formalities, the transfer of the auctioned articles and the payment of the prices all must be completed abiding by the laws, including not only the Auction Law but alse the General Provisions of the Civil Law, and the Ecbonomic Contract Law. In addition, if an auction enterprise is to be established, it has to apply for registration and obtain a business licence in the light of the Regulations for the Administration of Enterprise Legal Person Registration. One characteristic which diffecentiates auciton from other trading activities is its openness. The auctioneer should announce the time, place and articles to be auctioned and also provide the necessary information about the articles to be auctioned within a proper period of time before the auction takes place. The auction should be done by public bidding and the conclusion of the transaction should be confirmed explicitly. “Fairness,” a principle all businesses should follow, requires that all the parties in the auction enjoy the same rights and assume the same duties, that no one will be deprived, for no reason, of the chance to bid publicly that no transaction of anything shall be concluded privately before it is publicly auctioned, and that it is not permitted to give special favours to one party while prescribing special limitations on the other. The principle of justice is applicable to the auctioneer, the consignor as well as the bidder. The Auction Law stipulates that the auctioneer and his staff are not allowed to take part in the auction as bidders or to commission other people to bid for them. The aucioneer is not allowed to auction his own articles in the auction held by himself. The consignor is not allowed to bid or to commission others to bid on behalf of him. Bidders are not allowed to collude maliciously with each other or with the auctioneer to harm the interests of others. The consignor, auctioneer and his staff, who bid or commission other peple to bid on their behalf, the auctioneer who auctions his own articles or property rights in the auction held by himself, and bidders who collude maliciously with each other or with the auctioneer shall not only undertake the civil liabilities, but also be exposed to administration penelties by the department for the administration of industry and commerce.（27） “Honesty and trustworthiness.” as a standard of both conduct and morality, means that parties in civil activities should act out of goodwill, give due consideration to facts, treat each other with all sincerity, keep their promises, and never practise fraud or deception.
The Auction Law, reflecting the principle of honesty and trustworthiness, stipulates that the consignor should make known to the auctioneer the source and defects of the articles to be auctioned and that the auctioneer should make known to the bidders the defects of the articles being auctioned.
The second chapter of the Auction Law contains stipulations on the auction objects. Auction objects refer to the properties or property rights to be auctioned. The Auction Law contains no speeial provisions on the auction of artworks, but does contain special rules for the auction of cultural relics. It provides, “culturd relics to be auctioned by comission should be examined and permitted by the department for the administration of cultural relics located in the same area as the auctioneer before the auction takes place”(28). Cultural relics are called “cultural assets” in Japan and “cultural property” or “cultural heritage” by the United Nations Educational, Scientific and Cultural Organigaion. The former mainly relers to movable cultural relics while the latter inmovable ones. Cultural relics are visible materials of certain historical, artistic and scientific value, created by human beings or related to human life.(29) The characteristic which defferentiates cultural relics from ordinary goods is that they cannot be reproduced or replaced once lost. Therefore, China adopts special policies of protection for cultural relics.(30)
The trade in cultural relics in China at present is basically made by state - owned shops, and with the development of reform and opening to the outside world, the demand for cultural relics by lovers and collectors of cultaral relics is getting stronger. In the auction of cultural relies, the Auction Law have successfully reconcile the contradiction between the strong protection of cultural relics in the collection of state - owned museums and the demand for appreciating and collecting cultural relics by people of various circles, by means of stipulating that cultural relics be examined and permitted to be auctioned according to law by the department for the administration of cultural relics located where the auctioneers’ resides. The examination and permission according to law contains two aspects of meanings. First it means that cultural relics should be examined and permited whether to be auctioned or not according to laws and regulations by the departmerts for admrnistration of cultural relics that possess the power of examination and permission. At present, this power is possessed by the administrative departments of cultural relics of provinces, autonomous regions and municipalities directly under the Central Government. Secondly, it means that the contents to be examined must be in conformity with the law. At present the State Bureau of Cultural Relies requires that the contents to be examined should include (a) whether the source of the articles to be auctioned is lawful; (b) whether they are precious cultural relics or ordinary cultural relics; (c) whether they are true or forged; and (d) whether they can be sold by auction or directional auction.(31)
Directional auction means that certain cultural relics can only be sold to certain purchasers. Some precious cultural relics may be put up to auction, but before the auction, it is already decided that they may be sold only within the boundery of China or only to certain collecting units.
Article 13 in Chapter 3 of the Auction Law stipulates that enterprises engaged in the auction of cultural relics should have, in addition to the qualifications required for ordinary enterprises, “a registered capital of ten million RMB yuan and personnel professional in the auction of cultural relics.” Up to now, the State Burean of Cultural Relics has granted certificates for auction of cultural relics to six auction enterprises: Jiade, Hanhai, Rongbao, Duoyunxuan, Hanya, Zhongshang.(32)
Chapter 3 and Chapter 4 of the Auction Law respectively contain provisions on the parties and procedures in an auction. The Auction Law contains not only qualifications required for auction enterprises, but also specific requirements for the auctioneer. The chapter on the auction procedure contains explicit stipulations on auction commissioning contracts, auction announcements, and the volume of commissions. Chapter 5 of the Auction Law contains stipulations on legal liabilities. Special attention from purchasers should be paid to article 61, which stipulates, “when the auctioneer or the consignor, in contravention of the provisions of the second paragraph of Article 18 and Article 27, fails to make known the defects of the objects to be auctioned, the purchaser has the right to require the auctioneer to compensate for the losses thus incurred to the purchaser; and the auctioneer has the right to recover the losses from the consignor if the latter bears the liabilities.” “Auctioneers or consignors who declare ahead of the auction that they do not guarantee the genuineness or the quality of the objects to be auctioned bears no liabitities for the defects.” According to those provisions above, the purchaser may require the auctioneer to compensate for any losses incurred to him by the defects found in the article auctioned. As the Auction Law stipulates ( and so does the usual practice of the auction trade ), it is the auctioneer’s duty to maintain secrecy for the consignor, and therefore the purchaser may not know who should be responsible for the defect when it is found. In that case, it is the auctionee who should bear the liability first. If the defect was caused by the consignor, the auctioneer has the right to recover from the consignor the losses for which he has compensated to the purchaser. It is worth noticing that the auctioneer or the consignor may be exempted from the liability for any defects if they have declared beforehand that they do not guarantee the genuineness or quality of the articles to be auctioned. These provisions obviously show that the Auction Law is intended to balance the interests of the consignor and the purchaser, and to make sure that the auction is done in good order. However, the Auction Law does not contain any specific requirements on the formality of this “statement of exemption”, which may make it possible for auction enterprises to seize this chance to “lure people into purchases”.(33)
C. Measures for the Administration of the Business of Works of Fine Arts
Concerning the businessof works of finearts, the Department of culture promulgated the Measures for the Administration of the Business of Works of fine Arts which makes it clear in Article 1 that “these measures are formulated with a view to strengthening the administration of the business of works of fine arts, protecting the lawful rights and interests of creaters, operaters and consumers, and promating the healthy development of the undertaking of fine arts”. Article 2 of this Measures lays down the definitions of both “works of fine arts” and “the business of works of fine arts”. “works of fine arts” are defined as calligraphy, rubbings from stone inscriptions, seal cuttings, paintings ( Chinese paintings, oil paintings, water colour, pastels, sketches, mural paintings, lacquer
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