8.3: Acquiring and Documenting Title


One important aspect of artefact collecting in general is documenting title (right) to ownership. In the majority of legislations, ownership of archaeological material is vested in the state, and in such situations private ownership only results from specific circumstances. In collection of portable antiquities therefore title cannot be a matter of assumption (it should be noted that evidence of lawful ownership in a country is not necessarily valid title).  Therefore the responsible collector of such items will ensure that they can document title.

Respecting the principle of ascertaining title to all artefacts added to a collection by all involved in collecting would make it more difficult to sell illegally acquired objects. Public institutions acquiring artefacts for their collection should assure himself that they can acquire valid title to the object in question, meaning that the circumstances of the transaction or knowledge of the object's provenance must be such as to give adequate assurance that the seller or donor has valid title to convey. That is obtaining reasonable assurance that the object has not, within a recent time, been illegally obtained and refrain from acquiring or loaning from other institutions objects that do not meet the foregoing tests. No object or specimen should be acquired by purchase, gift, loan, bequest, or exchange unless the acquiring collector is satisfied that a valid title is held.

 There are many artefact hunters and collectors that have numerous artefacts in their possession but for which they have irresponsibly neglected to secure documentary evidence of title to them. Such 'orphan' objects - Daubney's (2017) "Floating Culture" are a nuisance on the antiquities market. The Nighthawking Survey (Oxford Archaeology 2009) considers documenting title as one of the factors defining illicit activity. It resulted in a number of recommendations being made on preventing illegal artefact hunting in the UK. Among them was implementing "changes recently introduced in Europe which increase the obligation on sellers of antiquities to provide provenances and establish legal title", and also acting on online sellers such as eBay "to introduce more stringent monitoring of antiquities with a UK origin offered for sale on their website, as they have done with Germany, Switzerland and Austria".

In the UK landowners retain all rights of ownership to archaeological materials found on their land (with the exception of items classified as Treasure). Therefore, in situations when somebody enters their property with their permission to remove such material, there is a presumption that there must be documentation of assignment of title to a group of artefacts that will be kept together (such as the material archive from an excavation), or of individual objects if they are to be handled separately. In the event that such material is deposited in a museum or other public repository, such documentation will need to be transferred with the objects.

The responsible artefact hunter therefore will need to document transfer of title to all archaeological objects, other than treasure, and should have a formal procedure, most suitably pre-printed forms, which will require the signature of the landowner and witnesses. This is their responsibility, and copies of such documents should accompany the finds if lent out, for example for recording, to document that the recording institution (for example a researcher or the Portable Antiquities Scheme) is not handling stolen material.

This documentation is particularly necessary when the objects leave the personal collection of the finder. The responsible artefact hunter undertaking fieldwork is therefore responsible for obtaining the written consent of the landowner to transfer ownership of the finds to another entity, such as a museum, and specifying the extent of these rights and any conditions (for example concerning deaccession or eventual sale) and publication rights . The Museums and Galleries Commission standards state that museums are required to ‘acquire the right to research, study, display, publish and provide access to all the information and finds contained in the archive either immediately or after an agreed period’ (MGC 1992). There must be a mechanism to allow licensed use of all archived material (for example making, and division of, income from the sale of photographs) which should be obtained in writing. In Northern Ireland, all documentary and digital archives resulting from licensed excavations should be deposited with the Environment and Heritage Service of the Department of the Environment.

References:

Adam Daubney 2017, 'Floating culture: the unrecorded antiquities of England and Wales', International Journal of Heritage Studies 23(1):1-15 DOI: 10.1080/13527258.2017.1325770

 MGC 1992, Standards in the museum care of archaeological collections (Museums and Galleries Commission).

 Oxford Archaeology 2009a Nighthawks and Nighthawking. Damage to Archaeological Sites in the UK and Crown Dependencies caused by Illegal Searching and Removal of Antiquities. Strategic Study Final Report. Available: http://www.helm.org.uk/guidance-library/nighthawks-nighthawking/



Tamara Kroftova comments:
"The antiquities market today has so many stolen and smuggled items on it that the responsible collector must be responsible for establishing and documenting title to any artefact they collect or possess and also to pass on that title to the person who acquires it from them. Irresponsibly ignoring that underlying principle (going back to the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property) simply facilitates the market for stolen artefacts that is doing so much damage  to the archaeological heritage. As part of the process of protecting 'collectors' rights', British collectors - where collecting is legal - should be taking the lead setting the pattern for other collectors, yet they are failing to do so."

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