Art Law in Canada

  • February 01, 2015
  • Robert K. Paterson

Diverse issues surrounding the complexity of human culture

The term “art law” might evoke scepticism or curiosity in Canada but it’s less likely to do so elsewhere. In the United States, it has been used since the 1970s with reference to laws affecting artists, both living and dead, along with cultural heritage generally. Intellectual property law has the clearest relevance to works of art since it defines the property rights associated with them. Other relevant laws include those pertaining to auctions, insurance, taxation and inheritance, fraud and forgery, obscenity and import and export controls. Such laws are of major interest to collectors, dealers and museums, and artists themselves. Beyond these mainly private law issues are public concerns about the vulnerability of historic and archaeological sites (including shipwrecks) and cultural material destroyed or damaged as a result of armed conflict or terrorism. The recovery of art and other cultural property stolen during the Holocaust has often involved complex legal questions, including statutes of limitation, sovereign immunity and the legal and ethical responsibilities of collectors and museums.

Robert K. PatersonIn Canada, the most high profile issue relating to cultural heritage has concerned this country’s First Peoples. While land and natural resource claims by First Nations have attracted most attention; there have been numerous instances of requests for the return of objects from museums and other institutions. These requests, particularly in the case of ancestral remains, have been made to institutions both inside and outside Canada. While such claims have almost always been resolved outside the courts, they engage consideration of moral and ethical – besides legal – principles. As such, they resemble the dynamics surrounding Holocaust-era disputes.

A particularly challenging problem in Canada is the level of protection afforded indigenous burial grounds and other cultural sites. Unlike the United States, Canada has no comprehensive federal archaeological resources legislation and provincial heritage legislation is notoriously inadequate. This is particularly a problem in British Columbia where rapid economic development presents ongoing risks to the security and integrity of ancestral sites.

Another First Nations issue that is still unaddressed is the legal protection surrounding intangible cultural heritage (such as legends, ceremonies, languages and other traditions). Conventional intellectual property norms are ill-suited to protect these features of traditional cultures. An attempt by the United Nations Educational, Scientific and Cultural Organization (UNESCO) to address the problem in the form of the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage was initially not supported by Canada, apparently because our laws were not seen as affording the level of protection the Convention promised.

Many of the most progressive developments surrounding cultural heritage have been at the international level. In 1977, Canada enacted what is still our only statute relating exclusively to cultural property – the Cultural Property Export and Import Act, R.S.C. 1985, c. C-51. It also, for the first time, put restrictions on the removal of certain cultural material from this country. The law implemented Canada’s obligation (incurred as a result of our becoming a party to a 1970 UNESCO Convention) to co-operate in the return of objects smuggled out of the territories of other parties to the agreement and imported into this country.

Today, some prefer the term “cultural law” to “art law.” Just as the phrase “cultural heritage,” rather than “cultural property,” is seen to better reflect the true diversity of cultural expression, so the term “cultural law” better reflects the enormous diversity of issues surrounding the complexity of human culture. These issues are now increasingly being considered through the legal lens.

Apart from international trade law, Robert K. Paterson’s major interest is cultural heritage and art law.