IAL: Law and Ethics: An Introductory Course for Museum Professionals

Institute of Art and Law

Law and Ethics: An Introductory Course for Museum Professionals

21st – 22nd June 2018 Edinburgh

The National Galleries of Scotland were delighted to host this keenly anticipated two day IAL course - the first held in Scotland - and a great opportunity for collections management professionals unable to access the London-based IAL Diploma in Law and Collections Management. This intensive course aimed to cover the most essential topics of the Diploma, focussing on intellectual property and collections on day one, and on the law and ethics of museum acquisitions and contracts on day two.  

Scotland has its own legal system based on a mix of civil and common law traditions, and for me one of the most interesting aspects of the course was that it pinpointed where there were differences. A full report on all the course content is available on the Resources > Top Tips pages of the UKRG website - www.ukregistrarsgroup.org/top-tips/#4733 - but here I am just highlighting the key differences, found most notably in Property Law but also in Contract law.

Differences in the effect of Scots Property Law were considered in relation to scenarios whereby items had entered the collection on deposit or on loan, but the lender could no longer be traced. Possession is an important feature of Scots Property Law, giving rise to a ‘strong presumption’ of ownership, with the onus being on the person claiming ownership to prove their title, compared to English law whereby a person claiming ownership would bring an action in the tort (wrong-doing) of conversion (treating someone else’s property as though you were the owner). It was interesting to consider whether in theory this might give rise to a practical difference, allowing Scottish institutions more freedom to use these types of works in their collections (for example lending, conserving etc).    

A further difference, giving rise to the so-called ‘Scottish Conundrum’, is the operation of the Prescription and Limitation (Scotland) Act 1973. Under the Act, positive prescription (whereby a person can gain title following a defined period of ‘open possession’) only applies to heritable property, and in relation to moveable property it is only possible for a person to lose title under negative prescription, following a period of 20 years where ownership has not been exercised by possession, or for example, the existence of a loan agreement. This leads to a situation where title has been lost by the original owner, but not gained by the possessing party. This differs somewhat from the situation in England where it is understood that the original owner of property can lose title (and thus the possessor gains title) 6 years after the relevant act of conversion (which, in certain situations can be the first good faith purchase of the property).  

This lack of absolute certainty of title leaves Scotland at a disadvantage, and in 2015 a consultation on a draft Prescription and Title to Moveable Property (Scotland) Bill was carried out. The intention of the Bill is to introduce positive prescription, with a 20 year time period for moveable property provided the owner has made no attempt to assert ownership and the possessor is in good faith and not acting negligently, with a 50 year period proposed for moveable property lent or deposited where the original owner is untraceable. Whilst being broadly welcomed by museums and galleries, a number of concerns were raised more widely regarding its operation in relation to issues of spoliation and restitution and its interaction with other areas of law, and a further review of comparative law in this area was thought advisable. A recent meeting with Scottish Government indicated that it is likely to return to the Scottish Law Commission for further research and development. 

 

Although contract law in England and Scotland has developed in a broadly similar trajectory, with shared authorities, there were some key differences to note. In Scots law, consideration is not required for a contract to exist, and a gratuitous promise can be enforced. There were also a number of pieces of Scottish legislation to be aware of:

• The Requirements of Writing (Scotland) Act 1995 specifies which contracts must be in writing to be valid, and how a document can be made probative if it has been witnessed.

• Third Party Rights (Scotland) Act 2017 which came into force 28th February 2018. This Act makes provision for the creation and enforcement of contractual rights in favour of third parties, replacing the common-law rule known as jus quaesitum tertio.  

• The recent Scottish Law Commission proposals for reforms in the area of contract formation.

Written by Rosalyn Clancey, National Galleries Scotland 

UKRG event: Insurance and CPD, Cinema Museum, London

Written following the UKRG event on CPD and Insurance "It's Good to Talk" at the Cinema Museum in London on Friday 6th July 2018.

There is a sense of defiance about an old building nestled between modern flats and high rise living. One of the best things about the members meetings is experiencing different Museums and Galleries, challenging perceptions over what a Museum is and how the role of the registrar fits within modern museums and galleries. Is the biggest challenge explaining to others what registrars do in a modern institution?

 

The day itself had a really wide breadth of speakers and experiences they are sharing are real.

 

If you’re wondering about attending a UK Registrars members meeting, I can tell you it’s definitely worth coming along, I find the chance to meet fellow UK Registrar members is so valuable.

Following on from the security theme at the members’ event in York, it was perfect timing to look at insurance during the first half of the day, and I really enjoyed hearing first from Blackwall Green about how a commercial insurer works with museums and galleries. It was particularly applicable where you might be dealing with a high number of loan items, in a temporary exhibition scenario for example or you deal with loan items going out of your institution.

 

An Absolute Liability Clause (a clause whereby you as borrower will be liable for anything not explicitly covered by your policy) tends to be more common where private lenders are concerned but is also becoming more frequently employed in institutions in Europe, particularly Germany and Austria. 

 

We can’t completely escape the complexity of getting the right balance of insurance and indemnity, and the three things that really struck me were:

• Take a practical approach
• Seek advice where needed (so you need to know when to ask for help!)
• Blackwell Green can provide support to institutions
• Make sure there are no gaps in cover, or contradictions

Nickos Gogolos from the V&A gave an update on National Museums applying to use commercial insurance. A piece of work has been undertaken jointly with DCMS, V&A and the Arts Council to gave a practical approach to the application process and discussion is ongoing to explore whether a threshold could be introduced, below which no formal application need be made. DCMS can also assist in advocating for indemnity if required.

 

The rest of day was devoted to the discussion of CPD opportunities. There is an amazing breadth of CPD opportunities available to the Museum and galleries sector and CPD is something that is very relevant and has real personal resonance as I have recently taken quite a dramatic career detour.

 

I am studying for a MA in Museum Studies and currently volunteering as a Collections Volunteer at Salisbury Museum documenting the Rex Whistler archives. I have worked for National Trust for 9 years focused mainly in Visitor Engagement with latter roles involving key representative duties, practical conservation and liaising with curatorial teams; it was these areas that I felt most at home with and could contribute most towards in our sector.

 

Hazel Shorland gave a really useful insight into her experience of applying (with success) for the “2017 Institute of Art & Law Diploma in Law and Collections Management Course” The course itself was delivered over the period of a week with a different theme each day. Practical examples were provided including issues around copyright and ownership, with case studies including Star Wars & Lucas film and Henry Moore’s public sculpture. Lots that can be applied in the role of the registrar.

 

Fiona Thornton and Cassia Pennington from National Museums Scotland shared their work on the NMS Knowledge Exchange. It has not only strengthened staff and volunteer skills but also looked at the learning and engagement opportunities with collections for different audiences. I was really fascinated by the “Next of Kin” project, it commemorated the centenary of the First World War with a touring exhibition, learning programme and online resources. 

 

It was really inspiring to hear about the different ways of learning, including the V&A’s learning academy. The programme is well publicised and constantly evolving with a wide range of courses with different funding options. I found it really useful to hear about the process of designing a training course from Malini Balluck. The V&A team gets to know the course participants and work with organisations to produce courses that are in tune with their career paths. It makes for a powerful programme of offerings and enables the V&A to design bespoke packages when required.

 

I wasn’t aware that Sotherbys offer a training programme so I was intrigued to learn how a commercial organisation offers learning and how it can be utilised in a museum setting. Katie Robson from the Royal Armouries attended the Art Market course, this was largely via online delivery and was fairly flexible. It also included a day in London at Sotherbys institute. The course gave an insight into the links between Museums and auction houses and how the relationships work and the part we play as registrars.

 

We broke into small groups to discuss our experiences of CPD, and both the group sessions and the remaining talks demonstrated the breadth of training opportunities available across the heritage and cultural sector. One thing that did strike me was how difficult it can be to find the right courses, and also to attend (ie funding and time etc.).

 

In our small group session there were some common themes about what makes for a really good course including:

• Well organised in the lead up, on the day and post course
• Course participants are engaged in the learning experience and willing to share experiences
• The course delivers what was promised

I always think the acid test of a great course is one that sits in your memory, informs your practise and you feel confident in sharing your learning. A course that delivered that for me was Emergency Salvage training. It was devised by English Heritage, Historic England and National trust. It was delivered by a number of industry professionals including Steve Emery, Fire Safety Adviser for English Heritage. It was well organised and you knew what to expect from the 3 days. It brought together a real mixture of staff and volunteers including Museums, heritage sites, country estates and even an aquarium! We worked with firefighters in a non-emergency situation prior to a simulated salvage exercise at the fire station. We also had time to share experience and also network over dinner. The follow up post course also helped reinforce the learning experience. 

 

Rachel Coman, student & Collections Volunteer, Salisbury Museum