HONG KONG SAR, CHINA Law and Practice Contributed by: Angus Forsyth, Angus Forsyth & Co.
the government of a growing public perception of the reality of cultural heritage in a place that had been under British rule since 1841 but was now increasingly subject to the need to acknowledge the huge Chinese population as having cultural heritage entitlement and corresponding need for its protection. 5.2 Cultural Heritage and Adverse Possession The Antiquities and Monuments Ordinance (AMO) introduces definitions of “antiquity” and “relic”, and also specifies a “place, building, site or structure erected, formed or built by human agency before the year 1800 and the ruins or remains of any such place, building, site or structure whether or not the same has been modified, added to or restored after the year 1799”. The AMO provides that ownership of every relic (as defined) discovered in Hong Kong after the com - mencement of the AMO automatically vests in the Hong Kong government from the moment of the discovery of the relic. It is possible for the Secretary for Development to disclaim a relic as such and, fol - lowing such disclaimer, the government ownership of that disclaimed relic shall be extinguished and its ownership shall vest in the person who, but for the enactment of the AMO, would otherwise have been the owner thereof. The AMO further established the Antiquities Adviso - ry Board (AAB), which is charged with advising the Secretary for Development on any matters relating to antiquities or any proposed monuments, but the pow - ers of the AAB are essentially restricted to buildings and structures, and are not concerned with either the visual arts or intangible cultural assets. 5.3 State Rights to Cultural Heritage See 5.2 Cultural Heritage and Adverse Possession . 6. Sale of Art Objects Domestically and Abroad 6.1 Key Clauses in Art Sale Contracts The main clauses in an art sale contract must cover the name and address of the artist as the seller and the name and address of the purchaser. The sale con -
tract should provide that the title to the physical work remains with the artist until the full sale price is paid, at a point which must be provided for. The same applies to the retention of copyright with the artist until the completion of the sale. It is also best for the agree - ment to provide assurance to the artist of the pur - chaser’s obligation to attribute the moral rights of the artist as the artist of the work being purchased, with a further express agreement by the purchaser not to mutilate, repaint or destroy the work and further that the purchaser should use best endeavours to ensure and provide that all obligations of the purchaser under the agreement are passed on to any new purchasers from the first purchaser. It is also advisable for the sale contract to provide for responsibility for transport of the work from the artist or selling gallery to the purchaser. If the agreement is to make provision for royalty to the artist upon any resale, then an appropriate clause should be includ - ed to require that the first purchaser pays a specified percentage of any resale price to the artist, and this obligation should be made the subject of a further resale obligation by the first purchaser to all subse - quent purchasers. The agreement should further provide for copyright as being an independent right that, during the period of copyright, may vest either in the original author or in his or her estate and then pass on to any purchaser until the expiry of the copyright period. This provision for copyright ownership and obligation is separate from that of ownership. A further provision should be included related to insurance of the work until com - pletion of any period between the date of the sale contract and the delivery of the work from the posses - sion of the artist; such insurance should be agreed to be for a specific value, which must then be engaged with the insurer. The agreement should further clearly provide for its termination and for dispute resolution, whether by way of court proceedings or arbitration, with an express choice of law to govern the contract. 6.2 Issues in Cross-Border Art Sales There are no specific issues in relation to the transfer of an artwork abroad, other than those set out in 6.1 Key Clauses in Art Sale Contracts .
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