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Public and private as a topic of a multidisciplinary research

michal novotný – public, private and legislature

Summary of a paper presented at the 1st workshop “Relativeness of public and private” in Prague on 9 October 2015

Professor Švácha has described one case of conflict between the private and public interest in the field of conservation. He has offered it for reflection from the ethical, legal, and art philosophy angles. I will try to interest you in a reflection focusing on the legal side of the matter. I believe it may be useful to be acquainted with how the law operates with the concepts public and private.

One of the main reasons for the existence of law is to solve conflicts. We can understand law as an attempt to solve conflicts in a just way.

The case of architect Koucký presents a conflict between him as the author of a work and the state heritage institute at a personal level. It is at the same time a conflict between copyright law, which protects the right of the author as to the inviolability of his work, and conservation law, expressing the public interest in the protection of the cultural inheritance. On a general level, we face a conflict between private right and public right.

In the European environment, the concept of dividing law into public and private is very old. It derives from Roman tradition. A quotation from the Roman lawyer Ulpianus (170 – 228 AD) is, with modifications, still acknowledged by contemporary legal theory: “Public law is that which pertains to matters of the Roman state; private law deals with the benefit to individuals.” While the public sphere, including care of the heritage, is defined by the principle that the power of the state can be applied only in cases, and in the boundaries of established law, the private sphere (including copyright law) honours the principle that everyone can do what is not forbidden by law and must not be forced to do what the law does not require. These principles pursue the aim of restricting a person’s freedom only where society finds (and formulates) it in the public interest.

Emphasis on the private or on the public part of the law ebbs and flows, and changes according to social conditions. After 1989 we were witness in the Czech Republic to the return of a powerful emphasis on private law whose belated expression is the recodification carried out by the new Civil Code.

Let us stay with the example of the Troja Bridge as a work of art and at the same time a monument whose author intends to decide whether or not it should be a state-protected monument. Let us ask first: who has the right (in the sense of authority) to make decisions about the bridge? More simply: to whom does the bridge belong? Three different laws offer three different answers. The Civil Code says that the bridge is an object that belongs to the owner; copyright law designates the bridge to be a work that belongs to its author; conservation law describes the method by which the state can change the bridge into a cultural monument. Each of the above prescriptions thus looks at the bridge from a different point of view.

The original question “to whom does the bridge belong” has split itself into the following questions for us: to whom does the bridge-as-structure belong; to whom does the bridge-as-work of art belong; to whom does the bridge-as-monument belong? If we had three different bridges in front of us, the split would be easy. However, we have only one bridge, but three parties interested in its appropriation. The “triune” bridge is divided between its owner, its author, and society, that is, the public and the private spheres.

A possible path to solving the dispute leads to a recognition of the differences in legislation between the concept of a work and the concept of a monument. We note that a work is by copyright law understood as an intangible good (idea). A tangible object (material) is merely the carrier of the artist’s idea. The right of the author to the work persists even after the object (structure) no longer exists. The right of the author does not relate to the object but to the fact that it is an intangible/personal work. The author has the right to claim authorship. The author has (inter alia) the right to the inviolability of his work. He has the right to authorise any change or other interference in his work. He has the right that, in the event of the work being used by another person, it should not be used in a way that depreciates the value of the work. The author’s work thus emphasises in essence the intimate, private relationship of the author to the work. It emphasises the author’s private “dominion” over the work.

Conservation law, on the contrary, looks at a monument primarily as an object whose preservation is in the public interest. The law stresses that the monument is an object in which society finds heritage values. We can state with qualifications that European heritage care traditionally favours interest in the protection of substance as the bearer of heritage values. Public interest is here materialised in the protection of the object itself.

We can now return to the question of declaring an object to be a cultural monument despite the resistance of the author.

Does current legislation give architect Koucký the possibility to prevent the Troja Bridge potentially being declared a cultural monument? No, it does not. When objects (but not works!) are declared cultural monuments, conservation law recognises, at least in theory, a triple public dimension of heritage care:

Anyone can propose that an object be granted the status of a cultural monument (= the civic aspect of heritage care); only the Ministry of Culture can decide if it should be granted (= the state aspect of heritage care); obviously not arbitrarily, but on the basis of meeting heritage values (= the professional aspect of heritage conservation). All these aspects support the position of heritage conservation as an activity in the public interest. Conservation law takes private interests into account only insofar as the owner of the proposed object can express an opinion. His/her objection however cannot be a reason for not declaring an object a cultural monument. The author’s opinion does not in any way determine conservation law, for he/she does not have custody of the object but of the intangible value.

However, attempts to “get” the author of a work into heritage conservation exist: in 2008, in the course of one of many varied proposals for the conservation law then under preparation, an effort was briefly made to anchor a rule that works by living authors should not be cultural monuments, since these works were sufficiently protected by copyright law.

However, under the current wording of the laws mentioned here, architect Koucký could not prevent the declaration of the bridge as a cultural monument merely by saying he is the author. Public interest in the protection of the cultural heritage is adequately expressed in conservation law and does not mention specifically any concessions with regard to the private interest of the author. According to current understanding of heritage preservation, conservation law protects monuments against even their own authors!

In the event that architect Koucký resisted changes carried out to the cultural monument, he must contend that the restoration of the cultural monument violates his right to the inviolability of the work. Proving this before a court would certainly be interesting, but at the same time difficult, and the outcome uncertain. The inviolability of the work decidedly is not absolute. It would be the same with an attempt to assert that the owner of the bridge let the structure be adapted by a method which devalues the author’s work. A third option would be to prove that the changes carried out were not carried out to the necessary essential extent and did not preserve the value of the work. However, these situations are not connected primarily with changes originating from the object being declared a cultural monument, which was architect Koucký’s chief objection.

Architect Koucký obviously cannot prevent people in the future (or even now) from looking on his structure as a monument, and maybe does not even intend to. The establishment of a purely personal relationship between a monument and its admirer falls completely outside the will of the author. However, it also falls outside the context of state heritage preservation. There is no longer any need here for a state institution.

– Michal Novotný (Philosophical Faculty of Palacký University in Olomouc)