Cultural Law as an autonomous branch of Law began to be used by the end of the 20th century to identify the set of provisions of the Legal System that referred to culture as a reality with legal content1. In these first years, the scope of the term was practically limited to the internal national sphere of each State and was mainly identified with the constitutional treatment of the culture and its derived rights. It is easy to notice the intimate connection that exists between the incorporation of references to the cultural phenomenon in the constitutional text and the establishment of guarantee obligations for the public authorities since culture features as a factor of social development that contributes to the stability of the collective and the individual himself. The birth of specific rights such as access to culture, which the State has to observe, or the promotion of culture, by safeguarding the optimal conditions for society to enjoy and actively participate in it, is at the base of the configuration of this legal speciality. The impact of these theories in the international sphere was frankly minimal and, if any, focused on folkloric aspects, more related to the preservation of traditions with an anthropological vocation.
However, culture as a social phenomenon had just broken into the legal sphere to stay. Its arrival allowed to articulate a solid doctrine around its conception from the Law. Similar to the evolution that the term culture experienced in anthropology, the Law adapted to this theoretical elaboration progressively. As the concept gained a presence in international debates as a factor to consider regarding cooperation and understanding between nations, awareness of its structural importance was rising. Culture became an essential element of international development, a key aspect connected with collective identity and human rights. From this new perspective, Cultural Law was no longer a residual set of provisions that timidly alluded to culture, but a theoretical-normative framework that brings together the regulation of the phenomenon by the legal system, whose connections extend to all traditional legal branches, from Private to Administrative Law, around an elastic and fundamental concept for the individual and his life in society.
The importance of culture is today beyond doubt. The jump to the global sphere and its first mentions in international treaties marked a turning point in its consideration by the Law. In spite of this, there are still doubts about the scope of work of this legal speciality. This difficulty arises, on the one hand, due to the inaccuracy of its object and, on the other, to a characteristic common to all new branches of the Law, that feed crosswise on traditional disciplines. But in an attempt to narrow its scope, we can say that the Cultural Law deals with the cultural rights established in the Constitution, the theory of Human Rights, the criminal protection of culture and heritage, the regime of cultural heritage, the tax system of culture, creative freedom and intellectual property, legislation on patronage, the sale of works of art, the formation of collections and the management of cultural institutions, the commercialisation of culture, intangible cultural heritage, contracts with artists and creators, cultural public policies, the competence distribution between State and Autonomous Communities in culture matter, to name just a few outstanding fields.
So where is Art Law? If we visualise this issue as a matryoshka, we will see that there are many drawers of stratified information, each of which is, in turn, a speciality within the previous one. Thus, Art Law is actually a subspecialty of Cultural Law that obviously feeds on all its structural postulates and takes them as a pre-established legal framework. It is the “art” label what gives us a clue about its scope of work.
The art-culture confrontation could open an extensive debate that we could hardly get successfully away of; therefore, we will try to stick to a pragmatic approach to the subject. From this perspective, the Art Law deals with all legal aspects related to artistic creation and commercialisation, narrowing the issue fundamentally as an independent economic sector, although not exclusively. Some authors differ on the scope given in this area to the term Art. For some, following the custom already established within the sector, Art refers exclusively to the fine and visual arts, as a discipline differentiated from performing arts, the publishing world, cinema or music. This position identifies almost exclusively the Art Law concerns with tangible material objects, such as paintings or sculptures, leaving out many other aspects of this field. Our opinion follows the position defended by other authors who advocate an expansion of the term for the internal consistency of this speciality. The Art Law attends to all the legal implications present in the reality of Art, something that ranges from the Artists’ Statute to the formation of collections, the sale in auction or the export of antiques.
We drop these lines as an introduction to this fascinating sphere of legal activity. For those passionate about culture and art, the rise of these specialities opens an exciting field of work that addresses both the rigour of legal technique and the richness of an unfathomable cultural heritage and a living activity sector. There is still a long way to go in our country in this regard; but culture is undoubtedly an essential element of collective development and of our progress as a society, which is why it has penetrated deep into the highest international policies.
1 For further information in this regard, see Prieto de Pedro, J. (2009): “Derecho de la Cultura” in Lecciones y materiales para el estudio del Derecho Administrativo, Tomo VIII, Vol. II, pp. 261-290. – Back to note 1
|Author: Marta Suárez-Mansilla
Lawyer specialised in cultural law. With extensive experience in the field of Contemporary Art and Project Management, my activity now focuses on approaching the legal issues surrounding this field of work.
© Marta Suárez-Mansilla