Moral Rights And the Conservation of Artistic Works

Moral Rights Legislation

Until 1998, Singapore law gave little or no protection to artists against abuses to their reputation such as public denial of their authorship and derogatory physical treatment of their works no longer in their possession, control or ownership. Protection for artists against such non-economic abuses was given when Singapore acceded to the Berne Convention in September 1998.

The key principle of the Convention on Moral rights is that “Independently of the author’s economic right, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work, and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to the said work, which would be prejudicial to his honour or reputation”.

In Singapore there are three basic rights:

  • to be identified as author whenever the work is exposed to the public
  • not to suffer derogatory treatment by any unauthorised addition, amendment, deletion or alteration
  • not to be named as author of a work the artist did not execute (so-called false attribution).

Similar rights have been enacted in most developed countries in the world, where artists from any Convention county can take legal steps to prevent or correct any such abuses, actual or anticipated.

Moral Rights legislation therefore raises serious legal issues for artists, in relation to contemporary works: the right not to suffer derogatory treatment lasts for the lifetime of the artist and for 70 years after death; artists can waive (forego) their moral rights, but cannot sell or give them away.

Purchasing

When collectors buy a work, the contract of sale should be in writing and record not only the obvious details (such as selling price and description of the work) but also responsibility for conservation, restoration and repair. Since artists have a legal moral right not to have work shown in public if it has been distorted accidentally or otherwise, their involvement in any issues of conservation is best decided before, rather than after, the need arises. At the same time, agreement should be reached to determine how the artist will be identified as author whenever it is publicly exposed (another legal moral right).

Commissioning

Likewise, commissioners of new works should negotiate and agree not only the nature of the work, its price, delivery and so on, but also arrangements for conservation, restoration and repair.

Loans and Rentals

It is particularly important for loan or rental agreements to make provision for the artist to be involved in authorising or supervising any conservation work. This can be easily ignored or forgotten about when the artist is neither the lender nor the borrower (as is often the case when collectors lend their works to museums and galleries), since it can take a great deal of time and energy for the parties to locate the artists and secure their involvement.

Conservation/Restoration/Replacement

All works, ancient and modern, suffer deterioration and/or damage, and obvious questions arise such as:

  • who is responsible for making good or arresting deterioration
  • who will pay for it
  • who decides what is the right action to take
  • when does conservation become restoration
  • when does restoration become replacement

In relation to contemporary works by artists who died more than 70 years ago, these are moral (ie ethical) issues for conservators, curators, collectors, museum and gallery directors.

In relation to contemporary works the law is very clear in most developed countries: during artists’ lifetimes and for 70 years after death, no physical treatment of their works can be undertaken lawfully without their authorisation – if such treatment would be derogatory to the artist’s honour, integrity and reputation.

The use of the legal term ‘moral’ for those artists’ rights is entirely appropriate in this context, because conservation and restoration issues are not only technical and legal but also moral in the ethical sense. Just as professional morality and ethics need to be brought into play when older and antique works deteriorate or are damaged, so they are also relevant in determining whether contemporary works will suffer derogatory treatment from conservation processes.

In a sense, therefore, moral rights legislation seeks to create a legal framework for the protection of contemporary works which reflect the same ethical issues that arise in relation to older and antique works.

In some countries, France for example the artist’s expressed wishes will strongly influence a court’s decision as to whether treatment of a work had been derogatory within the meaning of the law. In Singapore, the courts have not yet been called upon to decide the issue.