April 15, 2008

Copyright in stolen artefacts

Posted at 11:17 am in British Museum, Similar cases

European Museums have in many cases taken artefacts from their original owners / creators circumstance of dubious legality. On top of this though, they now proceed to profit from these earlier acquisitions, licensing the use of their imagery to others & collecting in money from this, none of which is passed on to the original owners. A new documentary film will highlight some of these problems to a wider audience.

Modern Ghana

By Dr. Kwame Opoku
Mon, 14 Apr 2008
Feature Article

We have in previous articles raised the issue of copyright in stolen African cultural objects that are now in European and American museums and the profit the museums are making by the granting of permission to use images of these objects or to film them. None of these profits goes to the artists who made these objects or to their successors or communities of origin. These museums which argue that they are keeping the stolen objects on behalf of mankind and thereby make mankind accomplices in their deeds do not feel any obligation to share the profits with mankind. These trustees feel they have a right to keep the profits and benefits derived from the presence of the African objects in their museums. The article below, from African Path, reporting on a new documentary film to be released soon, Crown Fraud, throws some light on the very interesting practices of the British Museum in this regard. Even if one does not entirely accept the calculations in the article, it does enable us to understand the need to discuss this issue and to obtain some justice. Hopefully, we will soon have some explanations from the British Museum and the other European museums about their position. One would also encourage the communities concerned by this issue to let the museums know their demands and urge their governments to take some action.

A documentary film scheduled for release soon will raise key issues over Article 11 of the UNESCO 1970 Convention on cultural objects taken across borders. Melford Ita reports.

By Melford Ita

It is a cold winter morning in
Germany but I am sitting in the warm comfort of a high-speed train, the Inter City Express (ICE) en-route to Brussels. It is a long trip, so I reach for my laptop and log on. An editorial alluding to Markets and Investments grappling with the interpretation of a copyright law with the British Museum draws my attention. It reads, Article 11 of the UNESCO 1970 Convention on cultural objects declares as illicit, “the export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power.”

According to one African maxim, “Until Lions write their own history, the tale of the hunt will always glorify the hunter.” Subsequently, this exposé centres on the abuse of copyright law and is part of an 11-year endeavour by Markets and Investments, to successfully challenge an illegality denying Nigeria the right to revenue from the use of images of known looted cultural artefacts. The exposé provides a compelling case and platform for the Nigerian government or any other government with a similar case to claim revenue derived from looted cultural artefacts irrespective of where domiciled.

Repeatedly, the Greek government have asked the British Museum to return the Elgin Marbles; stolen from the Parthenon according to the Greeks. British Museum spokesperson claims that Lord Elgin did apply for permission from the authority of the time [the Ottoman Turks] to remove the sculptures from the Parthenon. The Museum spokesperson adds, “The Ottoman Turks had been in power for 350 years when Lord Elgin [at the time ambassador to Constantinople] made application. Therefore, the Marbles were properly acquired from the Parthenon and brought to England.” Considering this claim to be factual, but turning to Africa many artefacts were acquired under crushing conditions – no permission sought or application made.

On 9 February 1897, Rear-Admiral Harry Rawson led the Benin Punitive Expedition. Field commanders were instructed to burn down towns, villages and upon capture to hang the Benin king. Monuments, and the palaces of many high-ranking chiefs were looted and destroyed along with the king’s palace, which was set ablaze. 2500 [official figures] religious artefacts, visual history, mnemonics and artworks were taken to England. Sir Ralph Moore KCMG, Counsel General of the Niger Coast Protectorate took one of two near identical Queen Idia masks to Britain. Reportedly, in 1909, Professor Seligman bought the mask from a relative of Sir Ralph Moore, to whom it passed on his death. Today, the Queen Idia mask remains an artefact in the BritishMuseum collection.

Carved [ca 1520] from Ivory, the Queen Idia mask is 25 cm in height and originates from the BeninKingdom (Nigeria). King Esigie is the ruler who established the office of Queen Mother. This mask represents his mother Queen Idia, who helped to end a civil war at the beginning of his reign. King Esigie wore the mask on his hip, to commemorate his mother during royal memorial ceremonies. In 1977, an image of the Queen Idia mask became the official logo of the 2nd Black and African Festival of Arts and Culture (FESTAC 77) hosted by Nigeria.

In 1995, Markets and Investments decided on a corporate logo comprising a scaled photograph of the Queen Idia mask on a black background including the company name. The choice of the mask was informed by a prominent Nigerian image, to convey the company’s understanding and knowledge of the Nigerian market. In January 1996, consistent with design intentions, Markets and Investments approached the British Museum and enquired about taking a professional photograph of the Queen Idia mask, which when reproduced would bear true semblance to the original mask.

The British Museum said it operated a photographic service and sells photographs of artefacts in its collection and at which time a photograph of the Queen Idia mask was quoted at £11.75. Markets and Investments placed order for the photograph; the purpose for which the photograph was required was also clearly stated. Thereafter, the British Museum dispatched an invoice confirming receipt of payment; said invoice was supported by a letter granting Markets and Investments permission to reproduce the photograph in its corporate logo subject to payment of reproduction fees. In February 1996, Markets and Investments received a photograph of the Queen Idia mask marked Copyright BritishMuseum, ref no. MM031879.

In April 1996, Markets and Investments received a letter from the British Museum requesting information regarding use of the Queen Idia mask photograph. The letter requested specific details, which Markets and Investments later found out were required for calculating reproduction fees due the museum for use of the photograph. Disturbed by the unfolding drama, Markets and Investments sought clarification. Between April and September 1996, both sides were mired in a flurry of telephone conversations and correspondence to resolve the issue, which obviously had become a dispute. Eventually, through a letter, the British Museum delivered a blow by revoking the permission it had earlier granted Markets and Investments to reproduce the image of the Queen Idia mask in its corporate logo. This came as a shock to Markets and Investments.

The Copyright, Designs and Patents Act of 1988 are the current UK copyright law. It grants the creators of literary, dramatic, musical and artistic works the right to control the ways in which their materials may be used. The rights cover broadcast, public performance, copying, adapting, issuing, renting and lending copies to the public. In many cases, the creator will retain the right to be identified as the author, as well as object to distortions of his/her work.

Copyright arises when an individual or organisation creates a work. This applies to a work if regarded as original and exhibits a degree of labour, skill or judgement. Interpretation is related to the independent creation rather than the idea behind the creation. For example, your idea for a book would not itself be protected, but the actual content of a book you write would be. In other words, someone else is still entitled to write their own book around the same idea, provided they do not directly copy or adapt yours to do so.

Names, titles, short phrases and colours are not generally considered unique or substantial enough to be covered, but a creation such as a logo that combines these elements may be. Generally, the individual or collective who authored the work will exclusively own the rights. However, if a work is produced as part of employment, normally the work belongs to the person or company who hired the individual. For freelance or commissioned work, rights will usually belong to the author of the work, unless there is an agreement to the contrary, i.e. in a contract for service.

In relation to where the Queen Idia mask is housed presently, its provenance clearly makes it a looted cultural object amongst others, which the Nigerian government has continued to demand their return. Hence, the British Museum was challenged over the matter. In a ploy, the museum said the letter in which it granted permission to reproduce the Queen Idia mask had been traced. To this end, the museum was prepared to honour the permission and has decided to charge £250 plus VAT for a 5-year non-exclusive licence to use the image.

This vacillation [granting, revoking and granting permission] by the British Museum marked a pivotal point confirming suspicions that the use of copyright law to derive revenue from the image of a looted cultural artefact was questionable. Incidentally, there has been no demand from the British Museum for the £250 plus VAT; allowing for a conceivable deduction that the only reason this practice had persisted was because nobody had challenged it before. Conceding that the only way is to establish this copyright fraud independently, Markets and Investments devised a strategy aimed at successfully registering the corporate logo as a trademark in the UK, thereby challenging the British Museum’s copyright claim. In English law, this would prove that the British Museum did not have copyright over the contested image, thus rendering the British Museum’s copyright claim as bogus.

On 15 June 2007, the corporate logo was registered. Markets and Investment’s UK Trademark Certificate proves that the British Museum has no legitimate copyright claim over the image of the Queen Idia mask. This provides a precedent where copyright law is being abused, to derive revenue from all looted cultural artefacts at the expense of the owners. In Nigeria’s case, this applies to the numerous looted cultural artefacts including the Benin Bronzes, the Nok Terracotta Sculptures, the Igbo Ukwu Iron castings, the Ife Iron and Bronze Busts, etc.

Trade is conducted through the British Museum Trading Company Ltd, which was founded in 1973. Subsequently, to calculate the revenue that might have been derived from these artefacts, one would start from 1973. Given a 5-year non-exclusive licence at £250 plus VAT, such a licence would be up for renewal every five years. Since 1973, to date 7 such licences would have been issued for each individual use of the Idia mask, i.e. 2008-1973 = 35years. 35yrs/5yr licence = 7. To appreciate the enormity of this abuse of copyright law, £250 x 7 = £1,750.00 in reproduction fees from the Queen Idia mask over a 35-year period. Based on a 5-year non-exclusive licence, if 50 people applied to use the image of the photograph over a 35-year period, the Queen Idia mask alone would have earned £1,750 x 50 = £87,500 since 1973.

The number of looted Nigerian cultural artefacts in the British Museum and other museums worldwide is estimated at 4000. Therefore, £87,500 x 4000 = £350 million, being the potential revenue for the use of images. This sum is devoid of future potential earnings, which should continue perpetually as long as there is demand for the use of images. This is a true case with documentary evidence highlighting a fraud that has gone unchallenged for so long.

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