INDIA Law and Practice Contributed by: Roshnek Dhalla, Bijal Ajinkya, Moin Ladha and Shailendra Bhandare, Khaitan & Co
6.5 Role and Responsibilities of an Art Adviser The role of art advisers largely depends on the kind of clients they work with. For example, with private collectors intending to build a collection, art advisers will often be the curators and will help the client by offering them pieces that fit their personal tastes or interests, advising on the framing, lighting and condi - tions in which to store the artwork for the perfect stor - age and display solutions. On the other hand, when it comes to art investment, art advisers can advise on what art to purchase and when to purchase it for the maximum profits to be made. Separately, art advisers can also be onboarded by the government for the purpose of: • preparing heritage by-laws under Section 20E of the Ancient Monuments and Archaeological Sites and Remains Act, 1958; and • constituting the members of the National Monu - ments Authority under Section 20F of the Ancient Monuments and Archaeological Sites and Remains Act, 1958, which is an advisory body to the gov - ernment on matters requiring expertise in the fields of archaeology, architecture, heritage, conservation architecture or law, etc. 6.6 Anti-Money Laundering Regulations and the Art Market In India, the Prevention of Money Laundering Act, 2002 (PMLA) read with the Prevention of Money Laun - dering (Maintenance of Records) Rules, 2005 (the “PMLA Rules”) prescribes guidelines against money laundering. The PMLA imposes an obligation on the “reporting entity” – that is, the banking company, financial institution, intermediary or a person carrying on a designated business or profession – to maintain records of prescribed transactions, furnish reporting to the authorities and appoint a designated director. That said, participants (that is, importers/exporters) of the art market are not included within the ambit of the term “reporting entity”, so no compliance/due diligence requirements are imposed on them. In any event, Section 3 of the PMLA states that if any - one directly or indirectly attempts to indulge, know - ingly assists, or is a party to or involved with any
process or activity connected with the “proceeds of crime”, and projects these as untainted property, they shall be guilty of money laundering. For context, the term “proceeds of crime” is defined as meaning any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property, or, where such property is taken or held outside the country, the property equivalent in value held within the country or abroad. Further, if the authorities have a reason to believe that a person is in possession of any proceeds of crime, they may attach such property under Section 5 (1)(a) of the PMLA. Therefore, if any artistic work sought to be exported/imported is connected with the proceeds of crime, it could attract the censure of the law under Section 3 read with Section 5 of the PMLA. Usually, collections that are reminiscent of rich Indian history are protected as cultural heritage. To illustrate, the Asiatic Society in Mumbai is culturally earmarked not only for housing rare collections of books and manuscripts but also for its exterior and interior archi - tectural marvels. Indian law envisions composite protection for collec - tions under the legislation applicable to: • ancient monuments for the collections’ tangible structure; and • antiquities and art treasures for the items hosted in such collections. 8. Photography 8.1 When Are Photographs Protected as Art? For a photograph to be considered a copyrightable artistic work, it needs to be an original work involving some degree of skill and effort by the author (in this case, the photographer, unless there is an agreement to the contrary or the photographer is taking the pho - 7. Collections 7.1 Legal Status of Collections
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