HIDDEN TREASURE AND FORGOTTEN DREAMS: THE OWNERSHIP AND EXPLOITATION OF CAVE ART.
| Author | Redmond-Cooper, Ruth |
The discovery in France of three cave systems with significant prehistoric artworks over a period of 70 years has resulted in significant legislative development in relation to ownership of land and finders' rights. One of those discoveries, the Chauvet cave system in Vallon Pont d'Arc (in the Ardeche region) has also forced an evaluation of the scope of artists' and other intellectual property rights in situations not envisaged at the time of drafting the various pieces of legislation.
These discoveries have raised fundamental questions concerning the protection of the archaeological heritage and how best to resolve the conflict between the rights on the one hand of the State and on the other of owners of land on or below which finds are made. To what extent should the State, in seeking to preserve and protect heritage for the benefit of society as a whole, be entitled to expropriate the sites of such finds? If expropriation is appropriate, what should be the measure of damages? Further, independently of the physical ownership of the site, what is the extent of the rights of the finders in respect of works which may date back thousands of years? This paper will examine first the rights under French law of the owners of land below which significant archaeological structures are found and secondly the rights of those who find such structures.
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PROTECTION OF ANCIENT SITES: THE RIGHTS OF LANDOWNERS THE UK PERSPECTIVE
In the United Kingdom the public interest in protecting archaeological sites is provided for in the Ancient Monuments and Archaeological Areas Act 1979. This statute gives the Secretary of State for Digital, Culture, Media and Sport the power to greatly curtail the activities which may be carried out on privately owned land on which are situated 'ancient monuments'. (2) This power is exercised through the process of 'scheduling': once a monument has been scheduled, the landowner's rights are curtailed, and consent must be obtained for a wide range of 'works'. (3) Although most scheduled monuments remain in private hands, the Secretary of State does have a power (4) to compulsorily acquire any ancient monument for the purpose of securing its preservation. Land may also be designated as a 'Site of Special Sientific Interest' (SSSI). The designation of such sites is a devolved power within the United Kingdom. In respect of England, (5) section 28 of the Wildlife and Countryside Act 1981 confers the power on Natural England to designate areas of land as SSSIs where it is "of the opinion that any area of land is of special interest by reason of any of its flora, fauna, or geological or physiographical features". The rights of the owner or occupier to carry out any operations on land included in an SSSI are curtailed by the terms of the notification, and written authority must be sought from Natural England before any such work is performed. (6) In the event that the landowner is deemed to be in breach of the notification, or in the event that Natural England is unable to conclude an agreement with the landowner on satisfactory terms, Natural England may acquire compulsorily all or part of the site.
The sole known example of cave art within the United Kingdom, Creswell Crags, is both a scheduled monument and an SSSI. However, it remains in private ownership and is operated by a museum trust which conducts guided tours of the caves. The operation of the site is supervised by and regularly inspected by English Heritage to the apparent satisfaction of all parties involved. (7)
In France, however, the idea of leaving such valuable testaments to our past in private hands is viewed with something approaching horror: the State is the appropriate custodian and guardian of the past.
FRANCE: RIGHTS OF LANDOWNERS TO THE GROUND BENEATH THEIR LAND
The concern of the legislator, in France as in the United Kingdom, is to find a means of preserving significant archaeological finds for the benefit of society as a whole, rather than risking possible deterioration or destruction by leaving prehistoric sites in the control of private individuals rather than the State. This section will examine three discoveries of prehistoric caves in France and examine the different legislative regimes applicable to the landowners in each one.
The classic exposition of the rights of landowners is contained in article 552 of the Civil Code which provides:
Ownership of the ground involves ownership of what is above and below it. An owner may make above all the plantings and constructions which he deems proper, unless otherwise provided for in the Title of Servitudes or Land Services. He may make below all constructions and excavations which he deems proper and draw from these excavations all the products which they can give, subject to the limitations resulting from statutes and regulations relating to mines and from police statutes and regulations. (8) When the Lascaux cave art was discovered in France in the 1940s, the landowners were free to open the caves up to visitors with disastrous results for the preservation of the artworks which soon deteriorated. Following the next major discovery of cave art, the Chauvet Caves, in 1994, the French State proceeded to expropriate the land, resulting in years of wrangling as to the method of calculating the amount payable as well as determining which landowners were entitled to compensation.
As a result, this principle of all-encompassing ownership of everything above and below the ground was modified in and no longer applies to immovable archaeological remains. Article L541-1 of the Cultural Heritage Code (Code du Patrimoine) now provides:
The provisions of article 552 of the Civil Code concerning the rights of the owner of land do not apply to immovable archaeological remains. The State pays to the owner of the property where the remains are found an indemnity designed to compensate for the harm caused in gaining access to the remains. In the absence of agreement, a claim for compensation is brought before the judicial [not administrative] judge. (9) THE LASCAUX CAVES
The world-famous Lascaux caves situated in the Dordogne in south-west France, were discovered in 1940 by four young men using a fox hole as their entrance. Local legend had always rumoured that there were wonders located below the surface, and the young men immediately appreciated the significance of what they found. Extensive studies of the many paintings were undertaken during the years that followed and these were found to date back more than 17,000 years. (10)
In 1947 the owner of the cave system, the Comte de la Rochefoucauld-Montbel, undertook extensive work under the supervision of Yves-Marie Froidevaux, chief architect of Historic Monuments, to provide an entrance to the caves. In the process these works destroyed the scree cone which had served to regulate the atmosphere in the cave and protect the paintings from the effects of the external climate. Stairs were installed to allow access to the Hall of the Bulls, where the floor was lowered and lighting put in place. The caves were opened to the public on 14th July 1948 and immediately began to attract huge numbers of visitors: 30,000 in 1955 and more than 100,000 in 1960. (11)
However, as early as 1949 the first signs of damage started to appear, with condensation and black patches being observed. In 1958, at the request of the Historic Monuments administration, a powerful system of air conditioning was installed--but at a cost: some 1,200 tonnes of debris were brought out, destroying further the Paleolithic remains. Notwithstanding the air conditioning, further signs of deterioration continued to appear on the paintings, with mould of varying colours being observed, leading experts to talk of the 'green illness', the 'black illness' or the 'white illness' to refer to the different types of fungal growth. In addition, the galleries themselves were seen to be suffering from calcite and condensation as a result of the growing numbers of visitors. In January 1963 the Comte, faced with reports of continuing deterioration, took the decision to close the caves to the public and to seek the advice of experts on how to remedy matters. By April of that year, he felt that the problem had been resolved and sought to reopen the caves--this step was, however, blocked by Andre Malraux, Minister of Cultural Affairs, who prohibited the reopening and set up a Commission to study the caves and seek to safeguard them. The Commission was composed of experts from a range of disciplines, and it met regularly over the next decade or so. It was able to put in place a co-ordinated strategy of operations designed to re-establish the microbiological balance of the caves' atmosphere. The Commission's findings concluded that the maximum time that human presence could be endured within the caves without damaging the paintings or structure, was around 20 hours per week.
In 1972 the cave system was donated to the French State. In return, the Comte de la Rochefoucauld-Montbel was granted the exclusive right to construct an exact reproduction of the caves at a site 350 metres from the original and which had the advantage of being an old quarry. However, the company set up to manage the caves, 'la Rochefoucauld' failed a few years later and was unable to pursue the project, which was then taken over by the Dordogne tourist department and opened in 1983. The replica site now attracts 280,000 visitors each year, and the original site is closed to the public.
THE CHAUVET CAVES
Discovery of the Caves
In December 1994 another hugely significant cave system was discovered near the village of Vallon Pont d'Arc in the Ardeche region of France. In addition to the prehistoric paintings dating back more than 30,000 years, these caves contain prints and remains of animals, some of which are now extinct. (12) The discovery was notified to the authorities. (13) Lessons were learnt from the Lascaux...
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