The Art Law Review: Switzerland

Introduction

Switzerland is an important art market and art transit country and, as such, its laws on art and cultural heritage acquisition and transfer are highly relevant. In addition, museums and collectors play an active role on the cultural scene, which explains why contemporary art and, therefore, copyright issues are also of central importance in the field.

The year in review

From the point of view of international law, 2020 saw two important changes in Switzerland. In addition, some comments can be made on the issue of deaccessioning from the point of view of Swiss law.

i International conventions ratified by Switzerland

The 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, ratified by Switzerland in October 2019, entered into force on 25 January 2020.2 To implement this ratification in Swiss law, the concept of cultural heritage was extended to include 'all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years'.3

Another important international text entering into effect in Switzerland in 2020 is the 2005 Council of Europe Framework Convention on the Value of Cultural Heritage for Society (the Faro Convention).4 This important Convention enhances the rights of individuals and communities in relation to cultural heritage; in particular, to the common heritage of Europe.

ii Deaccessioning (in general)

Deaccessioning can be defined as the final removal outside of a museum's permanent collection of a cultural good that is fully owned by the institution. As to the proceeding by which a cultural good is deaccessioned, the terms of the International Council of Museums (ICOM) Code of Ethics for Museums5 and the substantial laws that are binding for a specific museum may be referred to.6 As a general rule, deaccessioning is considered as being the removal of inalienable public property and so, as such, wrong. All museums that are wholly state-owned7 or private entities that receive their main funding from the state are committed by law to refrain from deaccessioning; the majority of the museums and their directors are also committed to being members of ICOM and, therefore, to comply with the terms of the ICOM Code of Ethics for Museums.8

There are numerous reasons for a museum to deaccession part of its collection, including lack of storage room, reduction of operational costs for storage, insurance and restoration, sale of duplications and restricting the scope of the collection. Even famous museums fulfil deaccessioning to finance the acquisition of a masterpiece.

The public understanding is, however, that deaccessioning should not occur for several reasons. The popularity of art occurs in waves. Museums exist at the interface between past and future. What is considered to be valuable should also be approachable for future generations. The reality, however, is that 'fashion' changes. Art considered highly valuable today may be considered abdicable by future generations (e.g., the Neue Wilden pieces were highly priced works in the art market in the 1980s and have today almost disappeared).

Deaccessioning may also be frustrating for donors of art when they realise that the museum is disposing of parts of its collection.

In the international practice of museums it is established that deaccessioning is allowed in certain cases. These exceptions include the disposal of duplicates of the museum's collection, unusual high costs of restoration of masterpieces, lack of authenticity of an art work, restitution of a piece of the collection to the rightful owner, and restitution to a donor because of the museum's inability to fulfil donation agreement conditions after a certain time has lapsed.

It is international practice that deaccessioning is not allowed for the financing of the museum's operational costs or the financing of investments in the infrastructure of the museum.

iii Deaccessioning at the Langmatt Foundation, Baden

While all the cultural policy arguments against deaccessioning are indeed very strong, museum collections are nonetheless at risk. In times of a policy of budgetary rigour, politicians time and again come up with the idea of instructing museums to sell items from their collections, not only to fund infrastructure investments, but also to pay for their operating costs. In 2019, the Langmatt Foundation was forced by the authorities to consider selling several works from its outstanding collection of French impressionists. The City of Baden had advised that it was willing to contribute 10 million Swiss francs to renovate the museum building only if the Foundation itself increases its capital by 40 million Swiss francs. This amounted to forcing the museum, a member of ICOM, to sell up to three major impressionist works. The Foundation is still evaluating which pictures should be sold. Swiss museums have decried the actions of the Langmatt Foundation and of the authorities as sinful. This could represent a warning beacon for other publicly funded museums as municipal finances are likely to be strained in the coming years for a variety of reasons.

Art disputes

i Title in art

The transfer of ownership of a work of art in Swiss law requires the transfer of possession of the work of art, as is the case in the transfer of any chattel. As provided by the Swiss Civil Code (SCC),9 a condition for the transfer of ownership is the good faith of the person to whom the chattel is transferred.

Good faith is presumed, but no one can invoke good faith if it is incompatible with the attention required by the circumstances.10 Recent case law shows that courts are setting a high standard for the attention required by the circumstances. In a landmark decision of 2015, the Swiss Supreme Court stated that the fact that the purchaser knew about a rumour relating to the sale on the European market of a stolen Malevich painting was sufficient to raise his standard of attention and that, had he made the appropriate investigations, he would have found out that the painting he purchased was in fact that same stolen painting.11

The bad faith possessor will never acquire ownership, even through the passing of time.12

ii Nazi-looted art and cultural property

From a strictly legal point of view, Nazi-looted art is not treated differently in terms of its transfer and possible acquisition in good faith. Interestingly, a US court recently applied Swiss law to the transfer of a looted Pissarro painting to a Swiss collector who then gave his collection to a Spanish foundation. Although the claimant was not able to recover the looted painting for reasons connected to Spanish law, the US court correctly interpreted Swiss law in connection with the issue of the original acquisition of the painting in Switzerland. The fact that old stickers on the back of the painting showing the initial Jewish provenance had been partially torn off was considered to be an indication that, had the purchaser taken this element seriously and further investigated, he would have discovered that the painting had been looted from its Jewish owner in 1935.13 The initial acquisition was therefore considered invalid for lack of good faith.

From the soft law perspective, Switzerland is a signatory of the 1998 Washington Principles on Nazi-Confiscated Art and, as such, these Principles have had an effect, in particular, when alternative dispute resolution is used (see Section III.iv). Swiss law has, however, not been amended, as such, to take the Principles into consideration. A looted art section was added to the Swiss Federal Office of Culture's specialised agency, but it has no decision-making power and can only advise potential claimants.14

iii Limitation periods

Since 2015, Swiss law has provided for specific limitation periods for title claims regarding cultural objects. According to Article 934, Paragraph 1 bis of the SCC, title claims by the original owner of stolen cultural objects can be made within one year of the claimant knowing the identity of the present possessor and the location of the object. In any case, the original owner's claim will be time-barred 30 years after the theft.

If, however, the present possessor is not to be considered in good faith – the burden of which lies on the shoulders of the claimant – the claim for restitution is subject to no limitation period.15

iv Alternative dispute resolution

Alternative dispute resolution is used with regard to Nazi-confiscated art. This was the case in the claim made by the French Jaffé heirs against the Museum of Fine Arts in the city of La Chaux-de-Fonds for the restitution of a Constable painting subject to a forced sale in Nice in 1943. Initial negotiations with the museum were unsuccessful, forcing the heirs to bring the matter before the local courts. Swiss procedural law requires that an attempt at conciliation be made under the guidance and supervision of the court. The judge responsible for this aspect of the procedure took his conciliatory role very seriously and was able to get the parties to enter into an agreement according to which the painting was returned to the family in exchange for a part payment of the expenses of caring for the painting for the past 20 years. The payment of that amount was made possible through the intervention of the French Commission for the Indemnification of Victims of Spoliations on the basis of France's responsibility for the 1943 forced sale.16

Another case regarding, among others, two lithographs by Edvard Munch claimed by the heirs of Curt Glaser from the Kunstmuseum in Basel was successfully negotiated by the parties. The agreement provides for a 'just and fair solution' under the Washington Principles: the lithographs remain at the museum in exchange for an undisclosed financial participation as well as the organisation of an exhibition as a tribute to Curt Glaser.17

Fakes, forgeries and authentication

Fakes and forgeries are frequent and give rise to criminal and civil claims. It is interesting to note that the Beltracchi case in Germany – which led to the criminal indictment of the well-known German forger – was initiated in Switzerland where the gallery of the purchaser of a fake painting attributed to Campendonk by the German auction house Lempertz was located.18

In Swiss private law, the purchaser of a fake or forgery is relatively well protected. The purchaser can base his or her claim not only on the specific rules of warranty applicable to a sales contract,19 but also on the general rules applicable to the legal effect of a substantive error on the basis of Article 24 of the Swiss Code of Obligations (SCO). In a long-standing line of precedents, the Swiss Supreme Court has decided that the two sets of rules on warranty and error could be invoked alternatively, thus making the invalidation of the sale based on an error possible, even if the shorter limitation period of the claim based on warranty has expired.20 Claims based on warranty are subject to a limitation period of two years after the sale,21 whereas claims based on error are subject to no absolute limitation period.22

The parties can of course adopt a different rule in their contract, as the above-mentioned rules on warranty are not imperative and can be modified by the parties to the agreement. This is often the case with auction sales, as the general conditions of sale adopt alternative solutions more favourable to the seller. Such changes to the general rules are valid, as provided by Article 234(3) of the SCO.

Art transactions

i Private sales and auctions

Private sales and auctions are subject to the freedom of contract so that they are regulated by the agreement of the parties. If there is no specific written or oral agreement, the rules of the SCO apply. In certain cases model contracts have been proposed.23

The entering into force of the Swiss federal act on the International Transfer of Cultural Goods (ITCG) in 2005 led to some changes in the rules relating to sales contracts on cultural objects. In particular, the limitation periods for claims relating to third-party rights or to the warranties of the seller are extended to one year after the buyer has discovered the cause of his or her claim, and in any case to 30 years.24

ii Art loans

Art loans between international museums have increased significantly in recent years.25 According to the Swiss Federal Supreme Court, such loans are part of the 'standard operations of museums'.26 A distinction must be made between the usual national or international loan transactions between museums or between private individuals and museums, on the one hand, and the permanent loan of artworks, on the other.

Museum loans for the purpose of an ephemeral special exhibition are characterised as loans pursuant to Article 305 et seq. of the SCO and hence as gratuitous contracts. Loans against payment are rare in public museums and could be characterised as rental agreements.27 In the case of loans to private museums, contracts containing some form of remuneration are more often entered into.28

When it comes to international loans, protection against seizure under private or public law is of fundamental importance. The ITCG29 provides for the novelty of a state guarantee of return, which is not stipulated in the UNESCO 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.30 This legal instrument enjoys effective protection in Switzerland and Europe against seizures in international relations. Moreover, Switzerland is party to the UN Convention on Jurisdictional Immunities of States and their Property of 2 December 2004.31 In addition, state museums may invoke immunity under public international law for cultural property that constitutes administrative assets. However, in recent years, Switzerland has seen several cases of civil seizures; in particular, Noga v. Soviet Union.32 Moreover, seizures in cases of art looted during the Holocaust, as well as illegal excavations, time and again lead to civil proceedings and judicial assistance in criminal cases, where immunity does not apply. Thus, an ambivalent relationship exists between state immunity and cultural heritage. Several judicial assistance proceedings in criminal matters of the Republic of Italy are currently pending in Switzerland, in which Italy does not recognise immunity under international law in cases of alleged illegal excavations where the museums in question had acquired antiquities in good faith.33

Permanent loans or permanent lending are not legal terms. The object is on loan for the long term, and in particular, not for the short duration of a temporary special exhibition.34 'Long term' is to be defined and ranges from about five years to an infinite number of years.35 Usually, there is no claim for 'adequate remuneration'; the contract does not require a special form. According to Article 117 of the Swiss Federal Act on Private International Law (PIL), the law of the party borrowing the work is applicable. This follows from the provision on the performance typical for the contract at stake. In reality, in the case of permanent loans, museums regularly provide a multitude of non-qualifiable non-gratuitous and pecuniary services based on terms and conditions that require qualifying the contract as non-gratuitous. These are the obligations to:

  1. exhibit, to increase the publicity and the public awareness of the loaned work;
  2. provide long-term storage that is safe in every respect and under ideal climatic conditions;
  3. transfer the insurance obligation at the lending museum's expense; and
  4. depending on the quality of the work, investigate the painting technique, provenance, authenticity, etc.36

A permanent loan, therefore, has elements of remuneration, and is rather to be qualified as a lease or deposit agreement.37 Loan and deposit contracts with very long terms can fail due to the element of duration being morally excessive.38 Overall, it seems more reasonable to qualify a permanent loan as a usufruct39 in accordance with the parties' interests. Thus, a term of many decades is permissible, up to a maximum of 100 years. The contract may be renewed. Moreover, the usufruct gives each party clear legal titles under property law (i.e., ownership for the grantor of the usufruct and direct dependent possession for the usufructuary). The latter can thus defend himself or herself under property law against any unauthorised influence by third parties on his or her possession and violation of possession with precautionary dispositions.40

International art loans and permanent loans rarely lead to judicial disputes. It is worth mentioning disputes on compliance with conditions and obligations, especially in the case of permanent loans, in particular, after many years and once conditions have changed,41 or in the case of international museum loans due to third-party claims (both private and public law bodies) against the owner or lender in violation of the immunity of cultural property.42 Furthermore, in recent years, the legal bodies of state museums have started to examine the obligations and rights of permanent museum loans more cautiously, with the result that some contracts have been rejected or not renewed. The museums are aiming, in particular, to combine permanent loans with 'promised gifts'.

iii Cross-border transactions

Cross-border transactions raise conflict of law issues. According to the PIL, international contracts are primarily subject to the law chosen by the parties.43 If the parties did not choose the applicable law, the contract is subject to the law of the state with which the contract is more closely connected.44 The PIL reserves the application of Swiss mandatory rules or legislation (i.e., rules that apply irrespective of the normally applicable law).45 The ITCG is such a mandatory piece of legislation.

In this context, the most relevant rule of the ITCG is the duty of diligence in the art trade. According to this duty, provided by Article 16 of the ITCG, no cultural object should be transferred by participants to the art trade if there is any doubt as to its provenance (i.e., that it might have been stolen, plundered in illegal excavations or illicitly imported into Switzerland). The same provisions request specific duties from art dealers (know-your-client duties, keeping of a registry of transactions, etc.).46

iv Art finance

In the United States, pledging art as collateral to secure financing loans by a bank or a private person is not uncommon. The financing bank checks the artworks serving as collateral with regard to authenticity, provenance, quality, marketability of both artist and work, in particular, ownership, and any risk of family disputes of the owner arising from marital property and inheritance law.47 Finally, the artwork used as security is to be evaluated. The 'risk calculus' is and remains the main issue.48 Art is not like a corporate share in a liquid market. 'The Art Market is remarkably different from all other asset classes – it is opaque, illiquid, unregulated, non-commodity sized and emotional.'49

In Switzerland, pledging artworks as chattel security for loans is a lien within the meaning of Article 884 et seq. of the SCC. The pledgee is granted a limited right in rem by way of a pledge of chattels for the duration of the existence of the claim to be secured. Alternatively, there is the option of an assignment as security.50 In this case, the creditor obtains possession of the security (artwork), and this serves as security for the creditor should the debtor become insolvent. Swiss law is characterised by the fact that the transfer of possession of the pledged asset (artwork) is a mandatory concept. The legal situation in German law is similar.51 The principle of publicity requires that any and all rights in rem must be in an externally recognisable form. The transfer of ownership is necessary to pledge a chattel as security. Article 884(3) of the SCC states very clearly that the lien is not established while the pledger remains in exclusive control over the object. Constructive possession52 is not sufficient to establish a lien.53

Under US law, a transfer of ownership is not required. Quite on the contrary, the artwork serving as security remains in the debtor's possession; the granting of the lien in the creditor's favour is entered in a register pursuant to Uniform Commercial Code (UCC) filing.54 This enables the loan debtor to continue displaying their artworks at home without any change. This UCC filing system, coupled with the US floating line system,55 is the reason why this type of financing is so popular with wealthy bank customers. The transfer of possession, which is mandatory for the Swiss 'principle of pledge of chattels', may explain why financing against the pledging of art is rare in Switzerland.56

The US system can be treacherous when artworks are moved abroad in an extraterritorial manner; for example, to a freeport in Geneva. Possession and pledge are based on the principle of lex rei sitae. Once the pledged artwork is in Switzerland, failure to transfer ownership constitutes a violation of mandatory Swiss law,57 and the US pledge is invalid in Switzerland.

Artist rights

i Moral rights

Moral rights are stipulated in Articles 9 and 11 of the Swiss Copyright Act (SCA). According to Article 9(1) of the SCA, the author has the original right on his or her own work and the right to recognition of his or her authorship. This is considered to be a fundamental and broad clause about moral and the economic rights. From the general right, flow the particular component rights.

  1. The exclusive right to decide whether, when, how and under what author's designation his or her work is published for the first time.58 This clause also serves as the exclusive right of recognition of authorship.59
  2. From this clause of first publication, certain rights are depending. Only published works are subject to debt enforcement.60 Also, only published works may be used for private use61 and may be quoted62 if the quotation serves as an explanation, a reference or an illustration.
  3. The work is considered to be published when it has been made available for the first time by the author (right to control making public).63
  4. Article 11(1) of the SCA establishes the author's right to control alterations with the exclusive right to decide whether, when and how a work may be modified, transformed into a derivative work or included in a collection. This provision grants to the author a very strict protection of the integrity of his or her work. There is an exception to this right of integrity in Article 12(3) of the SCA: works of architecture that have been constructed may be altered by the owner. This is a clause that is often debated in court.64

It is disputed whether moral rights are assignable.65 Commentators argue that the core of the work of integrity is not assignable but that the author can waive his or her moral rights.66

ii Resale rights

There have been many attempts to introduce resale rights in Switzerland; however, the Swiss parliament has never admitted resale rights although all of the countries surrounding Switzerland have adopted it.

iii Economic rights

The SCA deals with economic rights in Article 10. Article 10(1) introduces the author's 'exclusive right, to decide whether, when and how his work is used'. This is a short clause that allows the author to make every thinkable exploitation of his or her work. Article 10(2) follows with a non-exhaustive catalogue of defined authors' rights, such as reproduction, adaptation, translation, distribution, rental, importation, performance, display and, naturally in the digital age, the very important 'making available' right. Article 10(2) begins with the words: 'The author has the right, in particular: . . . ', illustrating that the list is non-exhaustive.

In summary, Article 10 of the SCA grants authors all imaginable exploitation rights, whether already known or not, rendering the making available right unnecessary for digital use as this is already covered by the general clause of Article 10(1). This umbrella clause covers all unknown new uses.67

iv Exceptions to copyright

The exceptions to copyright law are regulated in Articles 19 to 28 of the SCA. In a landmark ruling, the Swiss Federal Supreme Court explained the system of exceptions and developed an interpretation method:68

[The right of citation] belongs to the exceptions to copyright law . . . , which limit the copyright exclusive rights in the interest of the general public or of certain user groups. The legislator has used these provisions to regulate circumstances where fundamental constitutional rights collide, by seeking to balance the existing conflicting interests.

The exceptions deal repeatedly with the discourse of interests of artists, intermediaries (museums, galleries, auction houses) and collectors. The Federal Supreme Court has ensured, with the aforementioned landmark ruling, that the barriers are to be interpreted in the light of diverging interests. The main exceptions for visual artists, museums, galleries and auction houses are as follows:

  1. use of orphan works,69 an exception that can be combined with a new innovative clause pursuant to collective rights management exploitation and the extended collective licences of Article 43a of the SCA;
  2. Article 24 of the SCA on archives and back-up copies;
  3. use of works for the purposes of scientific research (text and data mining);70
  4. inventories71 with the right of libraries, educational institutions, museums, collections and archives to serve the purposes of describing and making their collections accessible, and reproduce short excerpts of the works or copies of works in their collections;
  5. quotations;72 and
  6. museum exhibition and auction catalogues.73

Swiss copyright law recognises a further exception, which is of major significance for the relationship of innovative creative activity between artists. According to Article 11(3) of the SCA: 'It is permissible to use existing works for the creation of parodies or other comparable variations on the work.' The wording of the end of this provision, 'or other comparable variations on the work' is of major significance. Legal commentators74 are of the view that appropriation has always been predominant in art, namely intertextuality and interpictoriality as a principle of art. Thus, the anti-thematic treatment and art-specific consideration of the artist using a pre-existing work by a third artist can be permissible.75

Trusts, foundations and estates

Trusts are unknown as such in Swiss law. However, since 2007, Switzerland has been a party to the Hague Convention on the Law Applicable to Trusts and on their Recognition, meaning that, subject to the provisions of the Convention, foreign trusts are generally recognised in Switzerland.

Estates are regulated by Article 457 et seq. of the SCC. Switzerland follows the tradition of civil law countries with respect to the 'reserve' of the descendants and spouse (i.e., that a certain percentage of the estate cannot be freely disposed of).

From the perspective of art and cultural objects, it is worth mentioning that a certain number of Swiss cantons have legislated in favour of the transfer of works of art in lieu of payment of inheritance taxes. This is the case in the cantons of Geneva, Vaud, Neuchâtel and Jura.

Outlook and conclusions

Switzerland is an important art market state. The market is regulated to a certain extent, in particular with regard to the transfer of cultural goods and related topics (e.g., anti-money laundering regulations). Copyright is also a field in which the law is important for the art market.

The SCA has been revised very recently, so no changes to the applicable rules are expected in the near future, although case law might bring some welcome precision to the law.

The ITCG is over 15 years old and some changes to its implementation may transpire. This is a matter that will have to be followed closely in coming years.

Footnotes

Footnotes

1 Marc-André Renold is a partner at Etude Renold Gabus-Thorens & Associé(e)s and of counsel at Wenger Plattner and Peter Mosimann is of counsel at Wenger Plattner.

2 RS 0.444.2.

3 See the newly modified Article 2(1) of the Swiss Federal Act on the International Transfer of Cultural Goods, RS 444.1.

4 RS 0.440.2 (the Faro Convention).

5 Section 2.12 et seq.

6 See Section 6 of the Basel Town Museum Act; disposal of museums' cultural goods is strictly barred and may only be done as an exception, subject to a request of the museum to the government.

7 See Kunstmuseum Basel, which was incorporated in 1661 as an agency of the Canton of Basel Town. The collection is defined as public property (and not financial property) of the Canton of Basel Town; it is protected by immunity.

8 See, re history and the public awareness of deaccessioning, Stephen K Urice, 'Deaccessioning policies and practices in the United States museums', in: Mosimann and Schönenberger (eds), Art & Law 2018, Bern: Stämpfli Verlag AG, 2018, pp. 15, 18 et seq.; Martin Gammon, Deaccessioning and its Discontents – A Critical History, Cambridge (Mass.): MIT Press, 2018.

9 Article 714 of the Swiss Civil Code (SCC).

10 id., Article 3.

11 BGE 139 III, p. 305.

12 Article 936 SCC; see Section III.iii.

13 David Cassirer et al. v. Thyssen-Bornemisza Collection Foundation (C.D. Cal., 30 April 2019 (Case No. CV 05-3459-JFW)).

15 Article 936 SCC.

16 Report of the Municipal Council relating to a request for transfer to Jaffé joint possession of a painting by John Constable, property of the city of La Chaux-de-Fonds, exhibited at the Museum of Fine Arts (6 September 2017) and Order of General Council of the city of La Chaux-de-Fonds (28 September 2017).

17 Case note: Vuille, Chechi and Renold: 'Case Two Lithographs of the Glaser Collection – Glaser Heirs and Kunstsammlung Basel', ArThemis database, https://plone.unige.ch/art-adr/cases-affaires/two-lithographs-of-the-glaser-collection-2013-glaser-heirs-and-kunstmuseum-basel/case-note-2013-two-lithographs-of-the-glaser-collection/view (October 2020).

18 Stefan Koldehoff and Tobias Timm, Falsche Bilder Echtes Geld, Berlin: Galiani, 2012, p. 14 et seq.

19 Article 197 et seq. of the Swiss Code of Obligations (SCO).

20 See, e.g., BGE 82 II, p. 411; BGE 114 II, p. 131.

21 Article 210 SCO.

22 id., Article 24.

23 Renold, 'Contract for the Sale of an Artwork', in: Marchand, Chappuis and Hirsch (eds), Recueil de contrats commerciaux, Basel: Helbing, 2013, p. 241 et seq.

24 Articles 196a and 210(3) SCO.

25 Peter Mosimann, 'Der internationale Leihverkehr der Museen', in: Mosimann and Schönenberger (eds), Art & Law 2014, Bern: Stämpfli Verlag AG, 2014, p. 157 et seq.

26 BGE 133 III, p. 421 ('operations classiques des musées' in the original French text).

27 Article 253 et seq. SCO.

28 On the issue overall, see Marc-André Renold, 'Die Leihe und die Hinterlegung', in: Mosimann, Renold and Raschèr (eds), Kultur Kunst Recht, 2nd Edition, Basel: Helbing, 2020, p. 831 et seq.; Mosimann, Der internationale Leihverkehr, p. 161 et seq.

29 Article 10 et seq.

30 Regarding the procedure, see Raschèr, Renold and Desboeufs, 'Kulturgütertransfergesetz', in: Kultur Kunst Recht, p. 462 et seq.

31 RS 0.273.2.

32 BGE 29 January 2008, 5A.334/2007; Checchi and Renold, 'Staatliche Immunität', in: Kultur Kunst Recht, pp. 653 et seq.; Mosimann, in: Art & Law 2014, p. 172 et seq.

33 On the issue, see Checchi and Renold, 'Staatliche Immunität', in: Kultur Kunst Recht, p. 645 et seq.

34 Mosimann, Der internationale Leihverkehr, pp. 160–1.

35 e.g., Kunstmuseum Basel, Sari Dienes (1898–1992), Under Cover, 1949, perpetual permanent loan by the Hüni-Michel-Stiftung Foundation, Basel, Inv. No. 2016.100.

36 See also ICOM Code of Ethics for Museums, Article 2.

37 Renold, 'Die Leihe und die Hinterlegung', in: Kultur Kunst Recht, p. 831 et seq.; Mosimann, Der internationale Leihverkehr, p. 165.

38 BGE 125 III, p. 365; BGE 114 II, pp. 159, 161.

39 Article 749 SCC; see, e.g., Mosimann, Der internationale Leihverkehr, pp. 161–2.

40 On the options of adequately structuring a usufruct agreement, see Mosimann, Der internationale Leihverkehr, p. 161 et seq.

41 BGE 133 III, p. 421 et seq.

42 BGE 29 January 2008, 5A.334/2007; Mosimann, Der internationale Leihverkehr, p. 172 et seq.; Odendahl, 'Die Immunität entliehener ausländischer Kulturgüter', AJP 2006, p. 1175 et seq.; Odendahl, 'Die völkerrechtliche Vollstreckungsimmunität von Kulturgütern', in: Mosimann and Schönenberger (eds), Art & Law 2011, Bern: Stämpfli Verlag AG, 2011, pp. 77 et seq.; Renold, 'Die Leihe und die Hinterlegung', in: Kultur Kunst Recht, p. 833 et seq.; Checchi and Renold, 'Staatliche Immunität', in: Kultur Kunst Recht, p. 641 et seq.

43 Article 116 PIL.

44 id., Article 117.

45 id., Article 18.

46 Gabus and Renold, Commentaire LTBC – Loi fédérale sur le transfert international des biens culturels (LTBC), Geneva: Schulthess, 2006, p. 176 et seq.

47 See Stephen D Brodie, 'The Risk Calculus of Art Loans', in: Mosimann and Schönenberger (eds), Art & Law 2013, Bern: Stämpfli Verlag AG, 2013, pp. 61, 63 et seq.

48 id., p. 79 et. seq.

49 Investing in Contemporary Art – What You Need to Know, ArtVest Investment Advice for the Art Market (Newsletter, Fall 2011), p. 4.

50 Article 714 et seq. SCC.

51 Section 930 of the German Civil Code.

52 Article 924 SCC.

53 BGE 119 II, p. 326.

54 Article 9-303 Uniform Commercial Code (UCC).

55 Article 9 UCC provides that a security interest arising by virtue of an after-acquired property clause as equal status with a security interest in collateral in which the debtor has rights at the time value is given under the security agreement.

56 A survey conducted by the two authors with the major banks and several private banks has confirmed that financing against pledging of art is not common in Switzerland.

57 BGE 94 II, p. 297; see Renold, 'Art as collateral', in: Mosimann and Schönenberger (eds), Art & Law 2010, Bern: Stämpfli Verlag AG, p. 43 et seq.

58 Article 9(2) of the Swiss Copyright Act (SCA).

59 BGE 131 III, p. 480.

60 Article 18 SCA.

61 id., Article 19(1).

62 id., Article 25(1).

63 id., Article 9(3).

64 BGE 142 III, p. 387 – Terrasse; see Mosimann, 'Die Architektur im Urheberrecht', in: Kultur Kunst Recht, p. 887 et seq.

65 Reto M Hilty, Urheberrecht, Bern: Stämpfli Verlag AG, 2020, p. 240 et seq.; BGE 142 III, p. 387 – Terrasse.

66 id., pp. 159 and 163–4; BGE 136 III, p. 401.

67 See Hilty (footnote 65), p. 119 et seq.

68 BGE 131 III, p. 480 et seq. – Georg Kreis v. Schweizerzeit.

69 Article 22b SCA.

70 id., Article 24d.

71 id., Article 24e.

72 id., Article 25.

73 id., Article 26; see de Werra, 'Grenzen des Urheberrechtsschutzes', in: Kultur Kunst Recht, p. 734 et seq.

74 Mosimann, 'Die Aneignung', in: Kultur Kunst Recht, p. 52 et seq.

75 id., p. 63 et seq.; see also Dessemontet, Le droit d'auteur, GRUR: Lausanne 1999, pp. 382–416.

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