Exports to UAE rise, but banking regulations and other factors blamed for fall in Swiss business
Customs figures for 2018 show the first signs of recovery in UK art market activity since 2015 but also highlight a marked decline in business with Switzerland, a key trading partner. However, exports to the UAE rose significantly.
Global exports of art and antiques from the UK were up 5.5% at £5.1bn, while global imports rose by more than 20% to £2.1bn. This compares with the 2.2% decline in exports and 21% fall in imports in 2017. (Figures represent the total value of art moved across the UK border, whether by sale or loan)
Most marked was the increase in exports to the UAE following the opening of the Louvre Abu Dhabi in November 2017. £78.2m worth of pictures were exported from the UK to the UAE last year, up from just £13.3m in 2017. The total value of fine art exported to the UAE from the country in 2018 was £83.4m, compared to £31.1m in 2017.
©Ivan Macquisten 2019
©Ivan Macquisten 2019
The UK’s chief trading partners remain the US, Hong Kong and Switzerland — all leading art market hubs. However, while total exports to and imports from the US rose by more than a quarter, figures for Switzerland fell dramatically. Picture exports there fell by more than 30%, at £532m, and imports by more than 40%, at £282.4m.
One Swiss dealer, who asked not to be named, said that the biggest single reason for this was probably changes in the country’s banking laws. “Switzerland was traditionally a place where dealers from other countries could set up shell companies to store assets as a means of avoiding tax,” he says. “However, Switzerland has dropped its banking secrecy laws and that means an end to anonymity, so companies can no longer conceal their ultimate beneficiaries.”
The dealer added that the bureaucratic burden now placed on those wishing to trade in Switzerland or deposit money was equally a deterrent: “The due diligence has become super efficient and demanding and takes much more time to complete. This could make using freeports in Luxembourg or Singapore much more attractive.”
Problems with freeport’s won’t have helped
Damaging headlines linked to freeports will not have helped either. The European Commission president Jean-Claude Juncker has recently defended the Luxembourg freeport, set up during his premiership of the country, against calls for a fraud investigation from the German MEP Wolf Klinz.
The fall in the value of the pound could also be a factor, the dealer argues, making New York more of an attractive option than London when it comes to exporting works of art for sale.
Other changes in Swiss banking and residency laws have made it less attractive for collectors to move their art holdings there for safekeeping.
Another Swiss dealer, who also did not want to be named, agreed with the first, adding that the Swiss Federal Office of Culture’s increasing interference in trade was having a damaging effect.
The customs figures measure the registered value of goods crossing UK borders rather than sales, although they tend to reflect market trends and spheres of influence.
Intrastat rules govern what is reported in customs figures for the movement of goods between the UK and EU countries — classed as arrivals and dispatches rather than imports and exports, These do not cover anything like the entire value of goods moved within this sphere, which is why totals seem so low comparatively. However, they can provide useful information on trends.
Exchange rate movement appears to have aided recovery
Part of the general recovery is probably attributable to the rise in the average sterling-dollar exchange rate across the year*. Despite a weakening pound since April, relatively high values in the first quarter of 2018 gave rise to a yearly average of $1.33 to the pound, compared with just $1.28 across 2017. A sharp fall in the average rate in May 2018 would also have made London a more attractive place to bid during the height of the summer auction season.
The UK market has some way to go to regain the 2015 peak, where exports nudged £5.8bn and imports £3.6bn, but these trends also tend to follow global market shifts. As the accompanying graphics show, the UK market has some way to go to regain the 2015 peak, where exports nudged £5.8 billion and imports £3.6 billion, but these trends also tend to follow global market shifts.
If the UK does leave the European Union this year, Intrastat will no longer apply, with shipments to and from the EU 27 reverting to export and import status, which is likely to affect the reporting of customs figures at least in the short term.
* Source: X-RATES
A version of this article first appeared in The Art Newspaper in April 2019
Safe, stable, liquid and easy to use for day-to-day spending – meeting the crypto currency challenge
A few days ago, when bitcoin values slumped overnight, the former CEO of PayPal, Bill Harris, reportedly dismissed the crypto currency as “a useless payment mechanism”.
“The cult of bitcoin [makes] many claims – that it’s instant, free, scalable, efficient, secure, globally accepted and useful – it’s none of those things,” Harris told CNBC’s Fast Money programme.
Well, as the ex-boss of a global payment system challenged by the whole concept of crypto currency, he would say that, you might argue.
However, Harris has a point. The real challenge for an alternative global system of value exchange is not for it to be a wealth creation exercise for the elite, but an effective method of transfer that is stable, cannot be manipulated by institutions or governments, protects the individual, has an intrinsic value and can be used quickly for ordinary, day-to-day transactions.
It should also act as a barrier to crime, particularly money laundering and terrorism financing, and offer a reasonable alternative to expensive wire transfers for the ‘unbanked’.
That is why I have become involved in the programme to promote Kinesis, which has the potential to achieve all of these objectives.
Being hailed by its developers as a “blueprint for the future of money”, Kinesis is a wholly integrated value exchange system linking to a globally accessible crypto currency directly backed 1:1 by hard assets in fully insured gold and silver held in third-party vaults across the world, giving it an intrinsic value. These holdings will be subject to semi-annual third-party holding audits. To put that in perspective, the last full audit of the gold held in Fort Knox took place in 1954. The Kinesis system is ethical because it’s based on LBMA (London Bullion Market Association) bars, and it’s officially recognised via the legacy system, with all associated taxes paid.
In short, Kinesis is an ethical system that enhances money as both a store of value and a medium of exchange.
This is not a gimmick that has suddenly emerged from nowhere, but a system carefully devised over seven years, based on London’s accredited Allocated Bullion Exchange (ABX), the world’s leading electronic institutional exchange for allocated physical precious metals.
It will employ bespoke block chain technology to ensure global security.
Kinesis can never be sold below the current price of gold or silver
“We provide a value and a unit of account and we solve the medium of exchange issue, while the system produces a yield,” says Kinesis CEO Thomas Coughlin.
The only way to bring this currency to the people is to digitize it and allow it to trade in very small amounts.
Kinesis can never be sold below the current price of gold and silver thanks to the direct allocation policy, which gives it stability. Transactions take just 2-3 seconds and are proportionate to what you are buying, so, unlike other crypto currencies, this one can actually be used in day-to-day transactions like buying a cup of coffee.
And when you pay over the currency unit, which can be allocated using your Kinesis debit card, you are also paying over that percentage share of the gold or silver that goes with it, gram for gram. At the same time, transactions costs* are a fraction of alternatives, making the whole system viable for day-to-day use in even small amounts. The Kinesis debit card can also be used to access cash at ATMs.
Another incentive to use the system over others is that all of those involved in it are paid a fractional share of the transaction fees, making it a unique multifaceted yield system. This promotes the growth and use of Kinesis as a medium of exchange while distributing back the wealth to the system’s users, encouraging the rapid movement of money around its network.
What this also means is that for the first time ever precious metals attract yield as physical assets in a way that encourages trade and transactions.
What’s more, Kinesis is Sharia compliant because it makes its yield from transaction fees not interest.
One of the Kinesis currencies’ (1 KAU = 1 gram of gold and 1 KAG = 10 grams of silver) most important features is the security they provide for users.
With unbacked crypto currencies, the title can be held by the exchange and the end user holds a warrant to that title. This is why crypto exchanges get hacked, because they are effectively treasuries.
Likewise, depositing money in a bank in the traditional way effectively means taking on bank risk where you are exposed above the guarantee limit. Kinesis does not expose you in this way because it is backed gram for gram by gold and silver. There is no counter-party risk because the depositor retains title to the gold and silver represented by their deposit. With paper deposits, the bank retains title and issues a warrant of title to the depositor. If the bank fails, the risk is passed on to the paper depositor above the guarantee limit. Remember the Cyprus depositors of 2012-13, who lost access to their funds and took a government-sanctioned ‘haircut’? With Kinesis, that can’t happen.
Other new developments in crypto currency are trying to build in stability by pegging themselves to fiat currencies, but that will leave them exposed to the usual banking risks detailed above.
The fractional cost of transactions also make the Kinesis system far more attractive to the ‘unbanked’, like migrant workers wanting to send funds home to their families in other countries. Currently, they are forced to use services like Western Union, which can charge anywhere between 5% and 25% of the money being transferred in fees, whereas Kinesis fees are limited to 0.45%.*
ABX has already raised the entire call for backing it needs to launch the system (around $250 million) through the issuing of Kinesis Velocity Tokens (KVT). It will continue to sell KVTs up to the limit of 300,000.
How Kinesis Velocity Tokens work
KVT holders are effectively stakeholders in the success of the system and will receive a 20% proportional share of the transaction fees from the Kinesis Monetary System ongoing. The more successful the system, the more money KVT holders stand to make. But what is different this time is that ABX has prevented institutions from muscling in and taking a concentrated position, scooping up huge holdings of KVT, which would risk compromising the system. Instead they have prioritised small investors. Institutions can get involved, but allocations to them have been strictly limited to ensure genuine system independence in the future.
Unlike bitcoin, Kinesis does not use up vast amounts of energy in the ‘mining’ process. The process is a simple one of exchange: you buy it with fiat currency.
Why would countries back you when what you are doing would limit their ability to control currency? Because most governments hate cash as it limits their ability to fight crime like terrorism. Kinesis digitises the system and anyone who wants to participate has to go through a vigorous Know Your Customer (KYC) process, working through Unified Signal, before they can gain access to it. Unified Signal control every cell phone for billing in the US, as well as the medical systems for the US, and provide the digital wallet through which Kinesis operates. This means there is no way of laundering the money through the system. You have to establish credibility before you are allowed to join. It also means that governments who adopt Kinesis will be more empowered to tackle tax evasion and terrorism financing, while generating additional income from transaction fees as a system user. Think how that could transform the fortunes of African countries currently beleaguered by corruption and the wholesale plundering of their assets.
It doesn’t take a genius to see how this could have additional applications in areas such as provenance and international transactions for the art market, another area of great interest to me.
So who has Kinesis convinced so far?
Well, the Indonesian Post Office for one. It has signed up to use Kinesis in the handling of its $12.5 billion of assets. Deutsche Bourse is set to become a liquidity provider to Kinesis too.
With an unblemished track record, which it is vital to retain, there is much at stake for the ABX in the intrinsic reliability and honest robustness of Kinesis.
Credibility and reputation at work
And look at the Kinesis advisory board. Among others, it includes Andrew Maguire, arguably the most important whistle-blower in the history of bullion banking, who in 2010 exposed the manipulation of the precious metals markets to the US Commodity Futures Trading Commission (CFTC). He effectively risked his life to do this when, instead, he could have sat back and exploited his knowledge to makes millions but was sickened by the cost in broken lives that the corruption and manipulation of the silver markets led to.
Other members include Padraig Seif, CEO of Finemetal Asia Ltd, and Axel Diegelmann, MD of Trisuna-Lagerhaus AG and co-founder of the Lichtenstein Precious Metals Group). Watch this space for additional names with game-changing reputations to be added to that list.
As confidence in the traditional banking system wanes further and existing crypto currencies continue to give the impression of Wild West gambling dens, trust, reliability and stability have never been more important.
Kinesis has impressed me more than any other proposed value exchange system and shows the best chance I have seen of solving the problems that dog other forms of banking, investment and exchange. That’s why I’m putting my money where my mouth is.
The Kinesis Monetary system explained (1.55 mins long)
Kinesis yields explained (1.38 mins long)
COMMENT: I have serious concerns about the new report published by the University of Portsmouth’s School of Law on the UK’s antique trade in ivory.
The Elephant in the Sale Room, as it is titled, is an exercise in futility. The real ‘Elephant in the Room’ here is the study’s vast shortcomings, rendering any solid conclusions at best misguided, at worst dangerous.
First, let’s take the statistics. There are two measures to consider here: margin of error and confidence in accurate results.
Statistically, to be 95% confident that the answers were an accurate reflection of the whole population – in this case the UK art and antiques market – while allowing for a margin of error of plus or minus 4% in the spread of answers – the standard for such studies – the sample size for a population of 20,000 should be just under 600, or 3% of the population.
The sample size given here – 80 – is approximately 0.4% of the estimated population. Taken as a percentage of the Antiques Trade Gazette readership of 35,000, which I would see as a more accurate reading of the size of the market, that falls to 0.23% of the population, or just 7.5% of the minimum sample size needed to be confident of reasonably accurate results within a reasonable margin of error.
The sample size used in this case leaves a margin of error that allows you to drive two London buses through side by side.
Now add the fact that only around half of the sample actually answered a number of important questions and it gets worse.
For example, question 13 asked: How many of the following goods, either containing or made entirely from ivory, did you sell in 2015? This garnered a total of 39 replies, or 0.19% of the estimated population, rendering the response all but meaningless.
Questions 11, 12, 14, 15, 16, 17, 18, 19 and 21 met a similar level of response.
The researchers are struck by the fact that “none of the organisations that we researched had any specific advice on their websites regarding the laws and regulations on the sale of ivory”. The implication of this is that they are complacent or incompetent. However, at this point the report fails to acknowledge that the Government had removed its own advice from the internet because it was so confusing and misleading. If the Government can’t give accurate advice, how are the associations expected to?
The report does finally acknowledge the problem on page 42, where one of the 12 interviews supplementing the survey notes how “confusing” and “unhelpful” DEFRA’s website is on this.
Additional efforts, such as the 2016 CITES panel at the Art Business Conference, and Antiques Trade Gazette’s recent conference, which could have been added as a late footnote, are ignored entirely.
Perhaps most surprising and disturbing was the assumption made on page 25 of the report that the low response rate to the survey pointed to dishonesty among the trade, with dealers being “sometimes secretive regarding [their] commercial activities”, followed by a reference to Stuart Henry’s The Hidden Economy and “illegality” taking place in settings “which (on the surface) seem completely legal and this, in turn, makes participants disinclined to be open about their activities”.
This is staggering in its arrogance and complacency, blaming the failure of this poorly composed exercise on the “dodgy” trade, rather than looking to its own structure, methodology and execution for the true shortcomings.
How is anyone supposed to trust the authors as dispassionate and unbiased in this light?
At least, on the same page, the report goes on to admit: “with such a small sample it is difficult to make strong assumptions about the universe of the antiques trade”. Nevertheless, the report does just that, and unhelpfully too.
Turn to the next page, for instance, and immediately we are told: “The survey results show that some respondents failed to answer all of the survey questions [a huge understatement] suggesting that some questions were maybe too sensitive…”.
Page 32 makes the ‘astonishing’ discovery that auctioneers tend to sell more pieces than dealers, but this is hardly true of just ivory. If even a small-time auctioneer with only a monthly sale of 500 items and a 70% sell-through rate turns over 4200 lots a year, how many dealers could match that?
So does the report meet its three stated objectives?
- To evaluate types of ivory objects being sold in the UK, their source and the buyer’s demographic? (A: To a degree, no and no).
- To understand how traders appraise an item before sale to satisfy themselves whether or not it complies with the law (A: Partially, although until the conclusion on page 52, the report utterly ignores the crucial matter of the costs and time delay of carbon dating tests – recently estimated in parliament as averaging between £500 and £1000 per item).
- To evaluate the effect a total ban on the sale of ivory would have on the British antiques trade (A: Not even close, based on the sample size, response level and demonstrable lack of understanding of key considerations).
The report does make some sound recommendations – not least those to DEFRA – but none that has not already been mooted by the industry without having to resort to the time and expense of this exercise.
It at least acknowledges its own limitations under the first concluding recommendation: “The study highlighted the difficulties in obtaining information from the antiques trade about the nature of their practices regarding the sale of ivory. We would therefore recommend further research…”
Again the trade is blamed, whereas, in my view, the pointlessness of this study as executed is the real cause for complaint. How much did it cost? How could the money have been better spent?
What do the customs figures say?
UK exports of art and antiques fell by 13.6% to £4.95 billion in 2016, while imports declined by 37% to £2.23 billion.
Having just completed my annual analysis of the trade figures, which I compile from from raw customs data, I noted significant drop-offs in values for the first half of 2016, with additional significant falls in fine art imports and exports between July and December.
Sterling declined an average of 5.9% year on year for the first six months of 2016, but the six-month year-on-year average post-referendum fell by 16.3%. So to get a true picture of how the market has changed you have to take this into account.
Although customs returns fell across the board for the last half of 2016, the two areas where this appeared to be significant were in exports and imports of fine art beyond European Union borders – down 24.2% to £1.68 billion and down 55.2% to £524.5m respectively.
Movement within EU borders is assessed differently by HMRC because of the single market, but its figures showed a widening trade gap for fine art, with twice as many works by value heading across the channel from the UK as in the same period for 2015, while the value of works entering the UK from the EU from July to December 2016 fell by more than 60%. However, the figures are comparatively small in the context of the global market.
This year I conducted additional research to see if any Brexit effect could be detected in the second-half figures, but the picture is not clear.
On the basis of what I have seen so far, I would say that the jury is still out. The fine art side shows significant weakening beyond exchange rate issues, but the global art market contracted in 2016 anyway, so you would expect to see cross-border trade decline.
Frieze Week sales boosted confidence
However, Frieze Week sales at the beginning of October underpinned confidence in the UK market, with Christie’s alone netting over £90 million for Post-War and Contemporary Art, including 19 artist auction records.
With an exchange rate of $1.27 to the pound then – compared to around $1.53 at this time in 2015 – this series would have been a very attractive prospect to overseas buyers. It also shows London’s ability to attract great works for sale.
Having said that, fine art imports to the UK for the second half of the year fell by more than 50% in value on the same period in 2015, possibly reflecting not just the weakness in sterling but also the likelihood that this would make London a less attractive place for consignors in the short term.
Nonetheless, all of this needs to be taken in the context of the long-term trend upwards, and we will have to wait to see how the next two years pan out to see if our changing relationship with the European Union will alter the UK’s global market status.
Drilling down to the detail, not much has changed in the structure of the UK’s trading relationships.
The United States remains the most significant partner (see table above), but the figures show significant market shrinkage: the UK’s fine art exports to the US were down by 20% at £1.85 billion, while imports fell 40% to £552.3m. Exports of antiques to the US dropped by 24% to £431.1m, and imports declined by over 30% to £224.5m.
Fine art exports to Hong Kong remain stable amid global decline
The two great entrepots who dominate trade relations with the UK art market after the US, Switzerland and Hong Kong, also saw dramatic change, with fine art exports to and imports from the former down nearly 40% at £584.6m and £507.8m respectively, while fine art imports from Hong Kong crashed by almost three quarters. However, fine exports there remained very stable at £81.3m, showing an overall healthier trade gap for the UK with the former British territory.
One of the most significant changes in trading partnerships came with South Korea, now acknowledged as an increasingly strong buying base: exports of pictures there rose by more than £450% to nearly £90m.
It is important to remember that the trade figures measure the value of goods crossing UK borders rather than actual sales, but they tend to mirror much of the market’s trends and spheres of influence.
And what the industry can do about it now…
In recent years, global media coverage of multi-million dollar auction prices, combined with the rise of art as an alternative asset class, has focused more attention on the international art market than ever before.
That increase in awareness has brought the issue of transparency to the fore, but what exactly do we mean by it?
To the public – the market’s client base – transparency largely means more clarity about terms and conditions, pricing, and consumer rights when buying and selling.
However, to politicians, interest groups, the media and the many and varied corners of the market itself, concerns over transparency focus on a far wider range of topics: provenance, finance, crime and market manipulation, to name the most obvious. The general attitude seems to be that improved transparency will boost confidence and reduce the risk of things going wrong.
With the trade in antiquities, concern gravitates towards looting and fakes, with money laundering and theft following close behind. With finance around high-end auctions, critics argue that a lack of transparency allows auction houses, dealers and collectors to skew the market to give themselves an unfair competitive advantage or create bubbles to sustain their holdings in artworks that might otherwise decline in value.
For the trade, though, increased transparency can cause problems. Thanks to the internet, it is far easier for potential buyers to find out what a dealer paid for an item, making it much more difficult for them to cover their costs and sell at a decent profit; most people are not interested in the time, effort, expertise, or the restoration, transport or other costs that the dealer has to account for in acquiring the item, as these are not seen as contributing to its value. How justified are concerns, and what should be done?
Focus on the four key variables in any transaction
Let’s deconstruct all of this a little. Every transaction really only has four key variables: the buyer, the seller, the goods, and the money. Each brings its potential to the deal, and its risks. Due diligence on behalf of both buyer and seller can tackle much of that risk, but not all of it. How can you be absolutely sure where the buyer’s money comes from? How robust is the seller’s paperwork? And who exactly are they? Surely the answer is to regulate the art market directly, like the worlds of finance, insurance and the law, so that officialdom can intervene where necessary and public confidence in honest trading does not have to rest on what some view as little more than a person’s word.
The first thing to understand is that hundreds of laws already regulate the market (you can download the list that applies to the UK art market from the British Art Market Federation website), but experience tells us that direct regulation rarely solves the problem.
The establishment of the Conseil des Ventes in France in 2000 to govern the market once France liberalised its auction laws did nothing to prevent the cols rouges scandal at the Drouot auction house nine years later, where the closed shop of portering services masked a criminal network of theft. Nor did the Wine Association’s establishment of a rigorous code of practice in 2003 prevent people from falling victim to rogue funds in the years that followed. Then we have the age-old issue of what exactly art is: if you can’t define something clearly, then you can’t legislate for it effectively.
But more pressing, perhaps, is where questions of art market transparency overlap with debates about public interest and the right to privacy. If politics is to intervene here, then the lawmakers as a whole need a better understanding of how to balance public interest with the practical needs of business. That means consulting trade professionals to a far greater degree than happens now rather than relying on the opinions of academics and others lobbying against art market interests. We also need more consistency on codes of practice across trade associations as well as with legal definitions for cultural property, what constitutes art and other loose terms.
Baroness Neville-Rolfe, the minister guiding the Cultural Property (Armed Conflicts) Bill through the UK parliament, recently declared that creating such passports would breach Article 8 of the European Convention on Human Rights, which covers the right to privacy.
In 2014, in a case involving the auctioneers William J. Jenack, the New York Court of Appeals overturned a New York Supreme Court ruling that an auction contract was null and void if it did not name the seller. The court clearly recognised the damage this would do to auctions and declared that having the auctioneer’s details on the paperwork as the agent of the seller was good enough.
How to use the art of persuasion when it comes to transparency
I have always believed that the most effective way of getting people to change their behaviour is to show them why it is in their interests to do so – and enlightened trade professionals are already demonstrating how and why this should be done.
Online aggregator Barnebys has just published research showing that transparency online at auction, along with ease of bidding and post-sale fulfilment, is the most important factor in building brand trust and improving sell-through rates. ‘The new generation of buyers and sellers expect all information to be easily at their disposal, without any barriers,’ says Barnebys co-founder Pontus Silverstolpe. ‘Withholding information, such as final prices, foments distrust and alienates users.’ Anna-Karin Laurell, CEO of Scandinavian auction house Bukowskis, echoes this sentiment: ‘Transparency and [improved] function increases credibility. Through our new website we have also reached new target markets we previously believed were very hard to reach – the youngest between 18–25.’
The Hiscox Online Art Trade Report 2014 concurs, while its 2016 report highlights the growth in businesses that are improving access to art market information online, while simplifying fulfilment services.
Enhanced condition reports for online auctions, accompanied by excellent images, certificates of authenticity and a clear summary of all charges are the building blocks to buyer confidence and brand trust for sellers and their agents. So you may not know exactly who you are buying from, but if the auction site handling the transaction effectively underwrites it with all of the above, then it is a form of transparency that addresses many buyers’ concerns. This reflects the appeal court ruling in the Jenack case.
Having assessed auction websites professionally for nearly 20 years, my first and most important test is how easy it is to find the buyer’s premium rates. If there is any difficulty at all with this, I simply will not buy from that auctioneer, nor recommend them. Newly launched Forum Auctions have made a virtue of publishing exactly what their charges are at the top of their advice page on buying, and they also promote a set of core values, including a pledge on dealing with complaints promptly and fairly. It’s a simple, cost-free and uncomplicated piece of marketing that immediately promotes confidence. It is also a wise move because the Advertising Standards Authority has just launched an investigation into charges at auction, including whether buyer’s premium rates, VAT and other charges should be reflected in auction estimates.
The transparency issue is not going to go away. The market needs to regulate itself better if it is to keep the legislators off its back. It also needs to be better organised and more proactive in developing relationships with government. If the UK industry is serious in this, it needs to increase funding to its lobbying arm, the British Art Market Federation, by a factor of ten. The US would do well to follow suit.
This article first appeared in the October 2016 issue of Apollo, the International Art Magazine
The biggest advantage to those who champion
ARR is that so few people really understand it
One of the first issues to be raised in post-Brexit discussions with the art market was the long-running sore of Artist’s Resale Right.
Introduced in two stages (2006: living artists; 2012: artists’ estates for up to 70 years after their death), the combination of charges and red tape made it all but universally unpopular among auctioneers and, especially, dealers.
Artists, the collecting agencies who stood to benefit more than anyone and various others saw it as overdue compensation for those whose work goes on to sell for huge sums without them benefiting further.
The message in brief: Why shouldn’t artists share in the benefits their art brings to others?
Now that the UK is heading for the door, will this law – the result of a European Union harmonisation directive – survive?
Difficult to say, but with everything else on the agenda, scrutiny of it is hardly likely to be a Government priority.
Failing the fairness test
As someone who spent many years campaigning against the introduction and then extension of ARR, I have always believed that it is not only detrimental to the art market, but also to artists. I also think that it fails the fairness test completely in the way it is structured. The problem is that so few people understand its scope and impact that, as with many other measures that should never have made it onto the statute book, they can’t see why art market professionals have any reason to object to it.
Let’s try to clarify that with a few facts:
- ARR has nothing to do with copyright, which is an entirely different right subsisting with the artist for their lifetime and to their heirs for 70 years afterwards.
- It is charged every time a qualifying work resells in the commercial marketplace.
- ARR applies to qualifying works three years after the original sale when the price is the equivalent of €1000 or more and immediately if it is €10,000 or more.
- ARR is not charged as a percentage of profits on an artwork, but as a percentage of the entire price when the art is sold in the commercial marketplace.
- As long as the artist qualifies for ARR and the price is above the qualifying threshold (€1000 or equivalent), the charge applies, even when the seller makes a loss.
- ARR cannot be paid directly to the artist but must pass through one of the two collecting agencies that administer it in the UK, The Design & Artists Collecting Society (DACS) or the Artists Collecting Society (ACS), which each charge 15% of the sum collected in fees, except on overseas sales, for which they make no charge. Originally DACS wanted to charge 25%, but this was reduced in line with the ACS prior to ARR coming into effect in 2006.
- ARR is an inalienable right, which means a qualifying artist cannot opt to waive it, regardless of whether they think it is unfair or risks damaging the market for their work.
- Those involved in the transaction are jointly and severally liable for paying ARR, although in practice the auction houses pass on the charge to the buyer, while only some dealers pass it onto those who buy from them. This means dealers suffer from ‘double dip’ payments – one on buying and one on selling. So a levy across the deal can be as much as 8% of the entire price.
- There is no definitive list of qualifying artists.
- Failure to meet your obligations under ARR rules risks a criminal charge.
- The collecting agencies hold no liability for their mistakes, even if you are the loser as a result.
- If a collecting agency accepts an ARR payment for a transaction that may not qualify, or for which the artist or their heirs cannot be traced, they can keep the money for up to six years before returning it. In doing so, they still charge their 15% fee and keep all the interest accrued.
- ARR is primarily supposed to help poorer artists as they establish their careers. However, the vast bulk of sums collected go to the most successful and richest artists and their estates.
- 30% of all monies distributed go to artists’ estates.
- ARR is capped at €12,500 on any single work of art.
- ARR rates apply as follows: 4% from €1000-50,000; 3% from there up to €200,000; 1% from there up to €350,000; 0.5% from there up to €500,000; and 0.25% above that to the cap. The scale is cumulative, so on artworks selling for more than €500,000, you pay ARR according to the scale of rates up to that point.
- ARR applies to the hammer price for auction sales.
- The UK Government went against its own policy by ‘gold-plating’ the threshold at which ARR should apply. The EU directive stipulated that it did not have to apply under €3000, but the Government went further than that by reducing the threshold to €1000. Originally, the Government had actually campaigned in Europe for the threshold to be raised to €5000.
- Dealers complain as much about the paperwork involved as the fee.
- Failure to comply with the directive and pay ARR meant that many dealers could not show its impact when the UK Government carried out its impact study into ARR at the end of 2013.
- By DACS’ own figures, it has charged over £7m in ARR fees over the past ten years. If its overheads (taking into account other revenues it raises) are lower than this, then it may be not-for-profit, but will certainly be banking a healthy surplus.
- I have never made a penny out of ARR and have no financial or other material advantage in arguing my case.
All of the above is quite a lot to take in. People will argue the fairness of the concept of ARR till the cows come home and still not agree. However, a number of things concern me.
The first is that ARR in the UK has never met the terms of the directive that imposed it on the market. It is not harmonised with other ARR programmes across the EU in terms of thresholds and application. It is not supposed to continue if global harmonisation fails to take place (it has failed and is unlikely ever to take place, as recent events in the US show), yet there appears to be no political will by those who imposed it on the market to meet these terms.
It is not in the interests of the market, which is put at a competitive disadvantage in relation to the other leading global art markets (US, Hong Kong, Switzerland), which have not adopted it.
It acts against the interest of artists trying to establish themselves in the market because dealers are less likely to take a risk in buying collections of their work for resale, giving them a lump sum in the process. Now, most will only sell on commission, allowing fewer artists to rely on this as a source of income.
Most of all, though, I have found that almost no one I talk to about ARR understands it fully and accurately.
Of these, nearly everyone who is not a dealer or auctioneer thinks it is a levy solely on profit. Not one – artists included – thinks that paying it as a percentage of the entire price is fair. No one at all thinks that it is fair that it should be levied even if the transaction makes a loss – not even DACS could come up with an argument for that one when I first asked them about it shortly after its introduction.
A practicable solution that better meets the fairness test
The only argument for these conditions is that it makes it practicable to collect the levy. If you were to charge 4% above €1000 for an artwork where the profit was, say, €100, then ARR would be just €4. From that the collecting agency fee would be €0.60. In this case it would probably cost more to administer and distribute the levy than the sum raised by it.
However, the driving argument by the collecting agencies and the supporters of ARR has always been one of fairness. If fairness trumps all, then make it truly fair. This can be done by raising the threshold to where it should have been in the first place and charging only on profits. The flat rate percentage charged by the collecting agencies allows them to subsidise loss-making distribution activities at the lower end of the scale with the large surpluses made at the top end of the scale, a fitting arrangement for the self-declared not-for-profit organisations.
To my mind, it would also be fairer to poorer, less established artists who might, once more, find a healthy level of patronage among dealers willing to take a risk on them by purchasing collections up front and giving the artists lump sums to work on their next phase. Don’t forget, those same dealers invest considerably in helping boost the artists’ reputations. Successful artists’ reputations are rarely built in isolation, so why would you want to penalise the very people who can make it happen for them.
Do I think anything will change?
Probably not. All I hope is that those who declare ARR a great idea are fully aware of its parameters and potential consequences. I have been looking at them closely for almost 20 years and still can’t see how fairness or common sense applies.