International conference on Prospects for Orphan Works

Reflections on cultural goods with no provenance – A review by IADAA chairman Vincent Geerling

On February 4 and 5, the Fondation Gandur pour l’Art, the University of Geneva and UNIDROIT hosted an international conference on the theme of Orphan Works.

The idea was to begin a free dialogue – unconstrained by the usual taboos – between the various protagonists involved in attempts to shape the future of the art market: collectors, gallery owners, lawyers, historians and archaeologists, curators, judiciary, customs and police. The objective is to find a reasonable long-term solution that balances the interests of preservation, conservation and bona fide property ownership.

Orphan Works are archaeological and ethnographic objects – and more broadly works of art – which are present in private and museum collections, but for which there are neither archives nor material proof of their collecting history. What to do with these works, and what to do with them if the owner wishes to move, sell or lend them?

This conference was one of the rare occasions where art dealers had been invited to join the debate – in contrast to most of the numerous institutional meetings about trafficking and illicit cultural property.

The 26 presentations stretched across the full two days of the conference illustrated clearly  just how complex this subject is. Five presentations focused on historical aspect, the first by Marc-André Haldiman (Université de Berne). Among other points, he considered a collection of 3,746 Roman glasses in the  Musée d’art et d’histoire in Geneva, of which the provenance of only one glass could be established. ‘Provenance’ here was defined under the ICOM’s Code of ethics for museums Art. 2.3: “Due diligence in this regard should establish the full history of the item since discovery or production.” Ideal though this might be, it is obviously an impossible task for most Roman glasses and other objects from antiquity. Originally this ICOM rule was designed to establish the authenticity of paintings from more recent times. Today in the art trade, the meaning of ‘Provenance’ is the collecting history rather than the history of an object from the point of its creation. So one thing the Orphan Works debate needs to settle on is a clear definition of Provenance.

Six presentations looked at the issue of “works without pedigree”. Four of them focused on the challenges for museums. Marcel Marée (British Museum, Ancient Egypt and Sudan Department) spoke on The Circulating Artefacts platform (CircArt) as a tool for provenance research, and from this we learned that 85% of the objects assessed by the sophisticated software involved were found not to have been demonstrably looted. Those identified as probably recently looted could all be pinpointed to just a handful of sites in Egypt. This raises a serious question about how effectively these sites are being protected. Article 5 of the UNESCO 1970 Convention obliges Egypt to protect its vulnerable sites against looting and trafficking. The vulnerability of the sites involved is worrying, but the fact that all of the apparently looted material came from so few sites also raises the exciting possibility that properly targeted action now could have an extremely effective impact.

Provenance in German museum collections

Markus Hilgert (CEO of the Cultural Foundation of the German Federal States) gave a presentation entitled Provenance Research on Orphan Objects in German Museum’s Collections. This also underlined the complexity of the subject, but gave no indication of the results of his research so far. With a €10 million budget, one would expect something in return at this stage.

Six further presentations concentrated on Trade and provenances. Three of them were given by art dealers. Anna Zielinski (Galerie Sycomore, Genève) explained in her talk, A good provenance, how persistent a dealer has to be to get information about previous owners and that on rare occasions this leads to the discovery of important information, enhancing the value and interest of the object concerned. This illustrates that it has always been in the interest of a dealer to find out as much as possible about an object, but that in most cases  they are thwarted by the absence of information because of the passage of time. Anthony Meyer (Galerie Meyer Oceanic Art, Paris) gave a splendid presentation, illustrated with old photographs on which objects could be identified, under the title Provenance has to start somewhere. This shed clear light on the dealer experience, and he vividly talked about some rare but lucky moments of discovery of additional provenance information. Jean-Christophe Argilet (Galerie Fürstenberg, Paris) told a story about one object “Un adopté américain devenu orphelin européen“ for which he finally discovered a very good provenance. 

Next came Tracks for solutions?, a series of four presentations, including one from Apolline Sans, a legal expert in cultural heritage, who revealed that a definition for “orphan works” already exists in French copyright law (Article L. 113-10 §1 of the intellectual property code): “The orphan work is a protected and disclosed work, of which the holder of the rights cannot be identified or found, despite diligent, proven and serious research.”
What the presentations had in common was the high value of the objects researched; the orphans problem, however, largely concerns lower value items. I estimate that at least 95% of objects in circulation for decades or longer that have no documented collecting history are of a low value. These presentations set this dichotomy in context, showing how time-consuming detailed provenance research is, and therefore how impractical it is from an economic standpoint in the case of low value objects where the chances of success are minimal. We have to keep in mind that these are the sort of objects that attract collectors, thereby helping to maintain a live interest in helping to preserve the vast numbers of legitimate cultural objects in circulation. This is important because, understandably, no museum is interested, willing or able to spend time, space and money to preserve these thousands of less important works.

Collector’s proposal for database

At the end of the conference, one of its sponsors, Jean Claude Gandur, made an interesting proposal: the creation of a database for Orphan Works, to be maintained by a neutral institution. Once an object has been in that database for some years, without being claimed by a possible country of origin, he argued, it could be “legitimised” and traded without hindrance from then on. Possible claims for restitution by source countries should be dealt with by the courts, based on existing laws and international conventions, he added.
This fits with provisions for fair and just compensation for the innocent owner under both UNESCO 1970 and UNIDROIT. It would also protect collectors, innocent owners who bought objects in good faith, thereby avoiding long and costly court cases. If a practical solution for the vast number of orphans could be found, it would be a major step in the fight against the illicit trade!

Opposing sides in this debate will continue to champion their own causes, but this event is a positive step in the right direction and a credit to the Fondation Gandur, UNIDROIT and the University of Geneva. Whatever else, it acknowledged that the issue of Orphan Works is not a simple matter of right and wrong, but a complex challenge that needs to be debated seriously.

Marina Schneider, Principal Legal Officer of UNIDROIT and a major contributor to seeking a solution, has informed us that there will be a follow-up event. Before we embark on that, it would be sensible to agree on definitions for the following: ‘Orphan Work’, ‘Provenance’, ‘Provenience’, ‘Due Diligence’, ‘Cultural property that is of importance for art history etc.’ (UNESCO 1970 Art 1).
Agreeing on precise definitions for these terms would save a great deal of time and misunderstandings, and accelerate the search for practical solutions. In this way, we can all secure the future of all these innocent objects that have lost their history in the course of time.