New Interim Provisions on the Import and Export of Fine Art Raises Censorship Concerns

The new Interim Provisions on the Management of the Import and Export of Fine Art (the “2009 Interim Provisions”), were promulgated by the Ministry of Culture and Customs General Bureau in July and came into effect as of August 1, 2009. (For our full text translation of the 2009 Interim Provisions, please click here.) Referred to in the UK-based Art Newspaper as “a new censorship measure,” the Interim Provisions raise concerns as well as questions about the extent of government control over artistic activities. In the past few years, the topic of Chinese government export controls on “cultural relics,” or antiques, has been much in the news, particularly following the signing in January of this year of a Memorandum of Understanding between the United States and China, pursuant to which the US agreed to embargo, inter alia, imports of all Chinese art made before the end of the Tang Dynasty (and then some). Similar restrictions on the export of contemporary art have been less a concern, despite the existence since 2004 of the Measures for the Administration of the Art Business (the “2004 Measures”), which are similar in many respects to the 2009 Interim Provisions.

Article 5 of the 2009 Interim Provisions lists 11 categories of content which, if included in a work of art, give the government authorities the right to prohibit the import and export of that art. Those 11 categories are in the main identical to the categories set forth in Article 9 of the 2004 Measures, which prohibits the conducting of business involving any art that contains the enumerated content. A major difference between the Interim Provisions and the 2004 Measures is the new language of Article 5(9) of the 2009 Interim Provisions, which adds “deliberately tampering with or [severely] distorting history” as a category of prohibited context; no such language appears in the 2004 Measures. Article 9(3) of the 2009 Interim Provisions also includes new language that prohibits content that “divulges state secrets.”

Certain administrative details are now clarified: the 2009 Interim Provisions create a requirement that all imports or exports of art, other than small amounts of art carried or mailed into China for personal use only, require the approval of the provincial bureau of the Ministry of Culture (“MoCul”) in the province where the port is located. The importing/exporting entity must apply to the appropriate MoCul branch and submit various documents. (For municipalities under the direct jurisdiction of the central government, such as Beijing, Shanghai, Chongqing etc., the application must be made to MoCul at that level.) MoCul is required to respond to the application within 15 days of receipt of the application materials.

“Foreign commercial art exhibitions,” which refers to all exhibitions that include any foreign art or in which foreign artists participate, also require the approval of MoCul at the same levels. The application must be made not later than 45 days before the date of the exhibition, and MoCul has 20 days within which to grant or deny approval. It bears noting that for exhibitions showing more than 120 pieces of art, the application must be made directly to Ministry of Culture at the central government level. The Interim Provisions are silent as to how long the central Ministry of Culture can take to make its decision.

The 2009 Interim Provisions essentially function as implementing regulations for the import/export provisions of the 2004 Measures, which did not set out any detailed application procedures or time frames. Precisely how the 2009 Interim Provisions will be enforced remains to be seen, but inquiries with the Ministry of Culture indicate that they will be actively enforced.