Volume 7 Number 3

Summer 1998

Art and confiscation in the Russian Federation

Is Your Work Your Own? Governmental Takings of Intellectual Property
Victor Nemchinov

On March 11, 1998, the Russian Consti-tutional Court handed down an unprecedented decision, abolishing the feudal rights that have, until now, allowed the state to confiscate an artist’s work without due process of law. The issue was brought to the Court’s attention by two citizens who questioned the administrative norms of the Customs Code and the Code on Administrative Infractions. The rules in question permitted officials forcibly to confiscate personal property for the state’s use without paying compensation.

Aleksei Pestriakov, the first plaintiff, alleged that the state illegally expropriated his Izh-brand hunting weapons. In a related case, artist Marina Gagloeva complained that she had been wrongly deprived of her own artwork. The latter occurrence, which is far from unusual in Russia, raises serious questions about the rights of Russian citizens to retain control over their intellectual property and the fruits of their personal labor.

After a successful exhibit of her paintings last year in France, Gagloeva decided not to sell her artwork. Instead, intending to keep her paintings in her personal collection, she shipped them back home to Russia. Thus they landed in the Pulkovskaya Customs House warehouse where customs officials confiscated the works for the benefit of the state. How could this happen?

This is an old question. Or rather: it is the traditional lament of every people deprived of rights. In a state not based on the rule of law, brave individuals may protest a particular arbitrary administrative act, but they will leave unchallenged the underlying reality of arbitrary power, the usurpation of rights, illegal arrests, unjustified verdicts, and, of course, the death penalty. In Gagloeva’s case, customs officials imposed an administrative penalty because, or so they charged, the artist violated regulations governing the temporary storage of imported goods. They therefore asked Gagloeva to pay two million old rubles in customs duties for her own paintings. They also noted that the artist was not able to complete the required paperwork in the “appropriate period of time for customs registration.” They based their confiscation on Art. 266 of the new Customs Code of the Russian Federation.

Realizing how this article had been applied in practice, the Constitutional Court drew a general distinction between permissible, temporary nonjudicial seizure of material property on procedural grounds by an administrative agency (which does not transfer property rights to the state) and extrajudicial punitive confiscation as a final administrative sanction for violating a law. This distinction between temporary sequestration and permanent expropriation (the Gagloeva and Pestriakov cases) is meant to reduce opportunities for bureaucratic abuse. But it nevertheless allows the authorities to identify violations of administrative rules; and it grants full respect to an appropriate and proportional application of sanctions. Even under existing law, citizens may lodge complaints in court about the actions of authorities at any stage in the process, and they may dispute the lawfulness of administrative measures, even prior to the application of administrative or court sanctions. Aleksei Pestriakov, for instance, took advantage of just this right. But after considering his complaint about the confiscation of his property, the regional court sided with the state organs, rejecting his appeal and affirming the legality of the confiscation.

But was the administrative confiscation of Pestriakov’s property genuinely legal? The regional court judges agreed with the customs officials that the enforcement of administrative rules was justifiable in this case. But, in point of fact, the way the rules had been applied was inappropriate and the form of punishment meted out was, without doubt, illegal. The law allows the state to confiscate citizens’ property only by court order. Yet the customs officers confiscated Pestriakov’s property, without giving him prior notice, without granting him a hearing, and in the absence of a court decision—details which the regional court, in its wisdom, failed to consider. Therefore, the Constitutional Court declared the lower court’s decision to be “insufficient” and overturned its ruling, writing that it “threatens the very core of the constitutionally guaranteed right to private property.” This is an excellent example of how the Constitutional Court of the Russian Federation has been trying to throw off the country’s political heritage and to even the odds, at least to some extent, between organized agents of the state and vulnerable private citizens.

The problem, needless to say, has by no means been definitively solved. Russia’s citizens still have their hands full struggling for their rights against an often capricious and negligent state apparat. Customs agencies still have the leeway to deal arbitrarily with objects, temporarily housed in their storage depots. And they can easily intimidate individuals into forfeiting their ownership rights. Indeed, they still have the authority—or so they believe—to engage in a “precautionary” confiscation of private property, performed in advance to any infraction, to make sure the owner behaves in a manner they deem fit. Perhaps the March 11 decision of the Constitutional Court, therefore, should be nailed to every customshouse wall: this “possibility of depriving owners of their property, when the property crosses the border, represents a limitation on the right to private property. This limitation is illegal, disproportionate, and furthermore, not permissible in this procedural form.” It follows that Art. 266 of the Customs Code is wholly incompatible with the Russian Federation Consti-tution. Art. 222 of the Code on Administrative In-fractions, which was the legal basis used by the regional court to rule in the Pestriakov case, is likewise unconstitutional.

Violation of Temporary Storage Regulations

“Failure to take measures for the release or receipt in possession of goods and of transport according to customs regulations, when the time of storage in the temporary depot exceeds the established maximum storage period, will entail the confiscation of both the goods and means of transport that have thereby become the proximate causes of the legal infraction.”

Article 266, Russian Federation Law Codes Collection,
Moscow, 1996, p.714

The Constitutional Court’s finding seems so obvious that we are left asking: what explains the regional court’s acceptance of the confiscatory behavior of the customs authorities? True, we can understand why a regional court—hearing the words “weaponry” and “undeclared goods”—might have rebuffed Pestriakov’s claim for the return of his hunting weapons, however arbitrary this decision seems in retrospect. But what legal justification did the regional court find for the customs officials’ confiscation of an artist’s paintings?

Far from trivial, the issue involves the legitimate right of individuals to reap the fruits of their labor. This right stands opposed to the illegitimate power of the state to expropriate intellectual property. A number of problems in this area remain unresolved. In spite of the Constitutional Court’s unambiguous ruling, for instance, it seems that the state can still “confiscate” such property—not on the basis of a statute that specifically permits them to do so, but through an all-pervasive, mind-numbing tangle of taxes and fees, not to mention the asphyxiating bureaucratic regulations governing imports and exports. Property seizures are no longer justified by references to “national property” or ideological struggle, of course. They now occur chiefly in the name of Kafka. If you are an artist or a poet, you can still be separated from your drawings or verses; if you are a journalist or writer, your articles or stories can be taken away; and if you are an academic, you may lose possession of your scholarly works (handwritten or on diskette). The technical calculations of an inventor are also at risk. Failure to comply with regulations that are nearly impossible to comply with (or for that matter to understand) can lead to de facto expropriation. This raises the questions: Whose creations are these? Yours or the state’s? What about the singer’s voice or the dancer’s legs? Are the owners of intellectual or artistic “property” free to dispose of their achievements or to employ their abilities as they see fit, especially when they venture beyond the borders of their homeland?

In Soviet times, everything was more or less clear. The authorities simply forbade you to cross the frontier. Artists, actors, translators, and academics paid a hefty compulsory quitrent to the government in order to occupy themselves legally as creative individuals. An obstinate artist, dancer, director, or academic was saddled with the odious label: “banned from travel abroad.” This label stuck. Removing it was immensely complicated, if not, practically speaking, impossible. On rare occasions, individuals could regain permission to travel abroad, but only by making a humiliating public appeal or written request to state leaders. In essence, the party-state declared that an individual’s work, like the individual himself, was ineligible for representation abroad. This amounted to a gag rule, a direct ban on discourse, that is, an interdiction on access to Soviet artworks by other peoples and the world. One could create “for one’s self,” only so long as no one heard of your creations, or saw them, or, God forbid, observed or read them with care. In this manner, the party-state exercised “sovereign” control over the artist’s creative work.

True, you could draw and write, risking your freedom only “for the desk drawer,” in the hope that some audience of the future—a reader or spectator in the hereafter—would eventually stumble across it. The party ideologue Mikhail Suslov took such a long view. After reading Vassily Grossman’s novel Life and Fate, Suslov allowed that it could be published—in two hundred years! That is more or less how Alexei Kosygin, too, reacted when banning Alexander Bek’s novel New Appointment, in the mid-1960s, which Kosygin himself had actually liked. Such routine censorship simply continued the totalitarian treatment of the artist, and was not that much gentler than Stalin’s cruel treatment of Mikhail Bulgakov or Nikita Khrushchev’s public persecution of Nobel laureate Boris Pasternak.

If you aspired to have direct ownership of your ideas and control over their disposition, then, in the best case, you were labeled a dissident and never published—the fate shared by linguist Igor Anichkov and philosopher Mikhail Petrov. In the worst case, you were turned into an overt enemy of socialism, as happened to Josef Brodsky, Andrey Sinyavsky, Yury Daniel, and many others. The state subjected its intellectuals to trials—on criminal charges—for the free exercise of their creativity. The artistic quality of your work was irrelevant. In the end, even the pro- or anti-Soviet sentiments of your work counted for nothing, as is shown by the cases of the World War II historian Alexander Nekrich and General Piotr Grigorenko. The Soviet citizen simply had no legal right to dispose of his own intellectual property in any public form.

Has this painful Soviet legacy simply disappeared overnight? Or do traditions of this sort die hard? How are artists and creative writers treated by “their” public officials today? After ten years of well-publicized transformations and legislative reform, we are sometimes led to believe that the mistreatment of artists and writers is now a thing of the past, having vanished along with the totalitarian party-state. The democratic transition has made a decisive break with the “socialist” mentality, and we have moved far along the path to building a state grounded solidly on the rule of law. It sounds good. But to convince the ordinary citizen of this miraculous change, as he is ground down by the ordinary challenges of everyday life, is not always easy.

What would happen, for instance, if you wrote an article and tried to send it by post to a foreign academic journal? The journal could typically request two typewritten copies and an electronic version on diskette. This simple request would already bring you into a headlong clash with contemporary Russia’s bureaucratic procedures concerning printed matter. In the end, you may have to relinquish your right to dispose of your own intellectual property simply because you want to mail something out of the country. It is no easier to receive academic material from abroad—even your own material, shipped by yourself. The tangled procedures for postal registration are nothing less than scandalous.

Let me relate a firsthand example. After lecturing abroad at an academic conference, I mailed copies of my text, as well as my reference books and notes, to myself at the address of my academic institute. Still remembering the Soviet postal service’s reputation for reliability, I assumed that the package would arrive safely. And it did arrive, after a fashion. A notice from the Moscow International Post Office eventually invited me to collect a package in room 71, where I waited in a long line with many fellow sufferers. An individual in the room jotted down the number of my postal notification in a registry and offered to give me information about where my package was and how to receive it—but only for a fee of around three dollars. The post office, it turned out had awarded a private company (for whom the individual mentioned was working) the right to sell information concerning the post office’s services. Moreover, the information I paid for turned out to be false. They told me I could pick up the package as commercial freight only. This was neither right nor technically straightforward. In searching for mail, one must always discover the customs code of the goods being tracked down. In my case, my scholarly notes and papers were assigned the same code as advertising publications. To find out this code number, you have to pay another eight dollars. Then you have to stand endlessly like a domestic animal sent out to graze because the postal workers are in no hurry to give you the package, handing it over only a day after you order it. And during that interval, of course, you pay for the package’s storage. I am reminded of Marina Gagloeva’s case.

When filling out your declaration regarding this shipment, you must present several legal documents as well. Never mind the letter of authorization—a legacy of Soviet times—by which the signatures of both the chief accountant and the head of your organization confirm your “right to sign” in order to retrieve the mailed materials. You must also present a certificate verifying the state registration of your institution’s legal address. Customs officials do not tell you that you may bring a notarized copy instead of the original registration certificate (a document with which your institution might not be eager to part). They then demand a written affidavit from the institution’s director disclosing the number of the institution’s hard-currency bank account. They demand all this, along with various other exotic certificates. Because gathering this information drags on for several days, the fees mount. The customs duty itself is collected as a kind of VAT, based on the value you attributed to the package when declaring its contents. The fact that the package contains your personal books and papers, as in my case, is irrelevant to the customs officials. I sent the package to myself at a state institution, and it therefore became a taxable item. In this way, the citizen must pay the state what amounts to a tax on the management of his own ideas.

Such experiences suggest to the extent to which, in the Russian Federation today, bureaucratic rules (not to mention bureaucratic discretion) have a “chilling effect” on the exercise of ownership rights in intellectual property, even when the property in question is one’s personal creation. In Russia, this effect is virtually cryogenic. Formulated more generally, by raising the transaction costs associated with international communication, the Russian state is seriously stifling the creativity of Russian artists.

Admittedly, an old philosophical controversy lies buried beneath the petty fumblings and bribe-seeking of government employees. The moral right of an individual to “his” intellectual property cannot be established by mere say-so. Respectable views differ. For example, some people think that a system of publicly financed education endows an individual with creative impulses and the skills to express them, so that these impulses and skills—and their products—are not exactly personal achievements but must instead be considered, in part, as state property.

In his Two Treatises of Government, by contrast, John Locke emphasized that a person’s labor belongs to himself alone. For Locke, a person expresses the essence of his individuality not by words, professional qualifications, or position, but above all through actions—through “the labor of the body and the work of the hand.” Moreover, Locke holds that a person can become an individual only by working, producing, and owning the results of his labor (remember Gagloeva). This Lockean axiom is the basis of the modern liberal-democratic state.

Characteristically, totalitarian and authoritarian regimes either abolished or severely curtailed this basic civil right. Even democratic regimes, of course, limit an individual’s right to disseminate freely his own intellectual creations in some cases. Under conditions of international rivalry, states must maintain some secrets. People responsible for keeping state secrets, and contributing their own intellectual labors to the state, serve in special institutions. When they enter this line of work, they are asked to sign an agreement vowing that they will maintain the secrecy covering their activities. On this basis they are given a corresponding level of access to state secrets. And the state acquires a vested interest in the participants’ activities and contributions. Industrial secrecy follows the same logic. If an employee makes an invention on company time using company resources, his personal right to sell or share his creation may be legally restricted. In some cases, therefore, states or enterprises, rather than the individual creator, have the right to dispose of intellectual property. But exactly what state or industrial secrets can be discovered in a painter’s canvas?

Formally speaking, as long as a Russian citizen sits at home and writes something on a sheet of paper in utter privacy, this is his business and does not affect the state. But if he tries to take his drawings overseas, for example, then he will discover to his chagrin that they are no longer unconditionally his property. Consider the example of art.

If you want to take your own paintings or sketches abroad, the authorities will ask you to go first to the state “art expertise” office on Neglinnaya Street and to go through a series of fairly disagreeable procedures. Art experts will analyze your work, register it, and make you bring two photographs of each of your paintings or drawings. Thereafter, it takes an average of one month to receive the necessary “exit” documents. One could probably tolerate this nuisance if the experts were only verifying the authorship of the items going abroad. The international movement of artistic treasures has to be carefully controlled, and customs officials must obviously have the help of experts, as well as notarized photographs, for checking works on their way out of the country. But there is more to come. In a second phase, the experts determine the value of your work.

This second step is not justified by any compelling state interest. Moreover, it infringes on an individual’s right to dispose freely of his own labor. When you cross the border, under current Russian law, you must either leave your work as collateral for the government or, if you do not want to be separated from your work, you must, in effect, ransom it from the state, paying the full “market price” as determined by experts. You can agree or argue with the experts, but in the end you must pay. But what are you paying for? For a sheet of Whatman paper or a length of canvas, for dried oil or watercolor paints? But international trade rules do not limit the import and export of canvas and paint. This means, then, that you are paying a 100 percent “export duty” (that is, the value of your artwork originally determined by the “art experts”) on your own artistic ideas and efforts. So, finally, to whom does the control of an individual’s intellectual property belong in a state ostensibly based on the rule of law? The only extraordinary thing about Marina Gagloeva’s case is that her work was confiscated while it was being imported, rather than during the export process, which is much more common.

Artists, in other words, pay a tax on their own intellectual property, and I am not speaking about the VAAP (the former All-Union Authors’ rights association) fees for protecting your copyrights worldwide. Today, the Russian Federation artist must purchase his own labor, as it were, back from the state. This is not only a legal absurdity, but it suggests the subtle persistence of the Soviet legacy in a supposedly democratic state. Recognizing this, and also understanding that artists are generally poor, the art experts usually try to set the minimum market price for a painting. But they evaluate the artist’s work as they consider necessary. One consequence of these illegitimate relations between the state and the artist is the underdevelopment of the nation’s art market. Domestic demand for new works of contemporary artists is weak, and the state’s export procedures frighten away prospective foreign buyers. To export a painting back home, they must, in effect, pay for two works while taking only one away. Since the time of Pavel Chichikov, the fired customs officer who is the principal protagonist of Gogol’s Dead Souls, art collectors have had to invent creative ways to “make a good deal with the customs officials.” The legislative, administrative, and judicial failure to come up with an adequate solution to these dilemmas has contributed to a serious drop-off in the art world’s interest in modern Russian art, which had been a relatively hot commodity in the early 1990s.

A decline in the Russian art market is regrettable. But the issues raised by administrative interference with the right of individuals to dispose of their artistic and intellectual creations are obviously more basic still. We have to wonder how many more resolutions by the Russian Constitutional Court will be necessary to protect, finally, the rights of citizens to dispose freely of their intellectual and cultural property. And beyond that, we have to hope that—while our government now, at long last, seems capable of issuing some sensible legal rules and regulations—it will also eventually learn to obey them.

 

Victor Nemchinov has worked as a senior researcher at the Russian Academy of Sciences for more than two decades. Since 1991 he has made five cross-cultural surveys on the changes in historical consciousness in East European societies and was the coordinator of an international focus group on the political psychology of postcommunism. He was awarded fellowships in advanced-study institutes in Germany, Hungary, and Austria. He is also a photographer and artist and has had several exhibits and was a member of the jury at the Budapest International drawing biennial.

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