Full Report on CPAC Hearing on Proposed Renewal of the MOU with Italy

On May 6, 2010, the U.S. State Department’s Cultural Property Advisory Committee met to hear public comments about the proposed renewal of a Memorandum of Understanding (“MOU”) with Italy and its import restrictions on cultural goods of Greek and Roman cultures. Although it remains unclear whether Italy has formally requested that the MOU be amended to include import restrictions on coins, that issue dominated the hearing. CPAC members also heard testimony about the one-sidedness of the current MOU, the benefits of the MOU to the archaeological community, and a debate whether Italy has complied with its obligations to provide long term loans to museums that have not already repatriated artifacts.

CPAC heard from twenty (20) speakers about the MOU, including a representative of the Italian Ministry of Culture. Of these, nine (9) speakers opposed various aspects of the MOU or its possible extension to coins and eleven (11) supported it.

Chairwoman Katherine Reid invited archaeologist Stephano de Caro, General Director for Antiquities within the Italian Ministry of Culture, to speak first. He indicated that the looting situation has improved somewhat due to the work of the Carabinieri, but looting is now a criminal enterprise that relies on illegal aliens as diggers. There are improved surveys, including ones using helicopters. There is also an effort to send repatriated art back to museums in the sites from which it was looted. Preventative archaeology has also become important. Developers now pay for excavations. De Caro hopes for a good resolution of the difficult matter of coins. CPAC member Robert Korver (Trade) asked de Caro about budget cuts. De Caro indicated they are a real concern at his ministry. He also indicated there was some discussion of a special “landscape protection” tax to help fund his ministry.

Alex Nyerges of the Virginia Museum of Fine Arts spoke next on behalf of the AAMD. He reported on a survey of AAMD members concerning long term loans of archaeological artifacts from Italy. [The current MOU contemplates that Italy will make such loans available to museums.] Nyerges indicated that of the twenty-one (21) museums that responded only five (5) had received long term loans, and each of these museums had voluntarily repatriated artifacts. He further indicated such loans should ideally be for periods of ten (10) to twenty (20) years and not be tied to conservation projects. He hoped the Italian government would be more proactive in setting up loans. Nygers than referenced an AAMD report on looted works from the Fascist era in Italy. Finally, he advocated the sale of excess artifacts from Italian stores. CPAC member Joan Connelly (archaeology) wondered if two (2) year loans would be preferable as they could be changed out more frequently. Nygers indicated the associated costs and logistical problems make such loans unpalatable. CPAC member Nancy Wilkie (archaeology) asked Nyergers about the response rate for the survey. He indicated that the response rate was good for museums that held ancient art.

Art Friedberg, past president of the International Association of Professional Numismatists, spoke on his own behalf. He outlined the concerns that import restrictions on ancient coins struck in Italy would raise. These include: difficulties in identification for US Customs; questions about a coin’s country of origin; prohibitive compliance costs and prohibitive litigation costs. He indicated the broader the restrictions, the more unenforceable they will be. He also indicated that the regulations would only punish those who already properly declare coins on entry to the United States and encourage efforts to evade the law, particularly through the use of the mail. CPAC member Robert Korver (Trade) asked Friedberg if there were any export controls on classic US rarities like the 1804 Dollar (the answer is “no”). He also asked Friedberg about the Treasure Act, which Friedberg agreed is an excellent system.

Clifford Mishler (ANA President) and Douglas Mudd (ANA curator) represented the American Numismatic Association. Clifford Mishler requested that a letter from the Italian Numismatic Society opposing restrictions be entered into the record. Douglas Mudd spoke how restrictions would hamper the ANA’s educational mission and ability to procure coins for its collections. He also indicated that the Committee ought to also consider the effect of restrictions on the willingness of collectors to fund numismatic research. CPAC member Nancy Wilkie (Archaeology) indicated that the restrictions would not be retroactive, but Mudd insisted that such restrictions would be of concern for the future. In response to a question from CPAC member Joan Connelly (Archaeology), Mudd defended the practice of using low value coins “with dirt still on them” for educational purposes. He noted that if archaeologists are concerned about this, they should advocate laws akin to the UK Treasure Act that encourage finders to report artifacts. He also indicated that the tactile experience of holding ancient coins makes for an excellent educational tool.

Wayne Sayles spoke for the Ancient Coin Collectors Guild (ACCG). He noted that almost 2000 coin collectors used the ACCG fax wizard to express concerns about the possible inclusion of coins in the MOU. Those restrictions could keep ACCG members from importing coins legitimately in markets abroad. Concerns about State Department transparency and accountability motivated the ACCG’s FOIA lawsuit and Customs Test Case. CPAC should be wary of extending import restrictions to “coins of Italian type” given Customs’ and State’s handling of that test case. The ACCG imported the coins in April 2009. ACCG’s Customs Broker had to tell Customs that the coins were subject to potential restrictions. On the 5th attempt, Customs seized the coins, but instead of filing the required forfeiture action, Customs did nothing. ACCG waited for almost a year, and then filed its own suit against Customs and the State Department. The government’s first move was to ask for yet more time to respond. Most collectors and dealers cannot afford to wait so long or afford a lawyer. This suggests if the Italian MOU goes through, many coins will just be abandoned after they are seized. This reality should weigh heavily on CPAC.

Souzana Steverding represented Ancient Coins for Education (ACE). She indicated her program using ancient Roman coins to teach kids about history currently reaches 75-100 schools. She expressed concern that restrictions would preclude her organization from receiving coins as donations for her program. She believes the system in the U.K. is a good one that Italy should emulate.

Rick Witschonke (ANS, but speaking on his own behalf) indicated that he was deeply saddened by the loss of knowledge occasioned by looting. He also believes looting has not decreased in Italy despite the MOU. It may be riskier than previously, but there will always be some ready to take that risk. The UK was in a similar situation before the Treasure Act was passed and a portable antiquities scheme was implemented. He believes CPAC can and should suggest that Italy consider a similar system modified to Italy’s own needs. CPAC made a similar suggestion back in 2000 and should do so again here. Some may claim this system has its faults, but it is much preferable to the current state of affairs in Italy. The governing statute, the CCPIA, contemplates that CPAC will make such suggestions to assist source countries protect their own cultural patrimony.

Peter Tompa represented the International Association of Professional Numismatists and the Professional Numismatists Guild. He indicated that the numismatic community was unclear whether the issue of coins was actually “on the table” because the Federal Register notice did not indicate whether new restrictions would be contemplated within the context of renewal. He wrote the Undersecretary McHale to ask, but received no response. If coins are “on the table,” there is no reason to depart from CPAC’s prior two recommendations to exempt coins from restrictions. The governing statute limits restrictions to artifacts “first discovered” in Italy. IAPN presented an academic paper that demonstrated Greek and Roman coins struck in Italy circulated far from there. There also is the issue that such coins are freely collected in Italy and the rest of the EU without any need to show provenance information. There are no import controls on coins into the EU and the two main market countries of Germany and the UK do not require export permits for coins not straight from the ground. In addition, the Italian-Swiss bilateral agreement exempts coins. This means the governing statute’s “concerted international response” requirement cannot be met and restrictions would only discriminate against Americans.

William Pearlstein represented several antiquities collectors. He indicated that now that looting is under control in Italy there is no reason to continue restrictions. Restrictions under the current MOU should be narrowed to incorporate only artifacts that are demonstrably Italian. Criminal law already protects Italy’s interests sufficiently. Pearlstein also passed around a Pandolfini catalogue of Italian archaeological materials being sold in Italy. He indicated that given the fact artifacts on the designated list were found in that catalogue, restrictions are only discriminatory against Americans.

Arthur Houghton, speaking for himself only, said the current MOU was of concern because it was unclear with respect to the designated list of covered material, which could include objects legally exported by other countries; encouraged under performance by the Government of Italy with respect to that country's reciprocal obligations under Article II; and discriminated against Americans in that it allows Italians and others access to routine sales of privately held antiquities not claimed by the State but restricts such objects against export to the United States by American citizens. He was asked for suggestions that would remedy the stark asymmetry of the MOU's provisions.

Karol Wight, the antiquities curator at the Getty, spoke in support of the MOU. She expressed some disagreement with the AAMD’s testimony during CPAC’s interim review of the MOU as well as Dr. Nyerges testimony earlier in the hearing. Specifically, she does not believe that the AAMD’s testimony about the lack of long term loans from Italian institutions reflects the experience of non-AAMD museums. She specifically mentioned the travelling Pompeii, Stabiano and Rome and America exhibits that are on a “long term” loan to the United States, if not to a specific museum. Wight also indicated that the Getty has had successful collaborations with Italy and has received loans of spectacular pieces, like the “Chimera of Arezzo.” Wight also indicated that AAMD members need to be more proactive in seeking loans from Italy. CPAC member O’Brien (public) noted that there seems to be a difference of opinion as to what constitutes a “long term loan.” Wight indicated that the Getty itself considers a period of 5 years to constitute a “long term loan” when it sends its own are out for exhibition elsewhere.

Susan Alcock is an archaeologist associated with Brown University. She has not excavated in Italy (her major work has been in Greece and Armenia), but she believed the MOU should be renewed and extended to coins. Her specialty is the “systematic pedestrian survey,” that is “field walking” with an eye to trying to understand archaeology from an examination of surface finds. She indicated that when she finds a coin during her walks, it is “a cause for celebration.” She also indicated that “There may be millions of these little suckers, but they are still important.” CPAC Chairwoman Reid (museum) asked about the practicality of Alcock’s recommendations, observing that she appeared to live in an “ideal world.” Alcock responded that she stood by her idealism. When Chairwoman Reid followed up by asking her recommendations, Alcock suggested: (1) CPAC recommends an extension of the MOU; (2) the MOU be extended to coins; (3) there must be public education efforts about the evils of looting.

Elizabeth Barton is the First VP of the AIA. She claimed that while one can see Italian archaeological materials openly for sale in New York City, such materials are not sold openly in Italy. Sometimes one sees coin stores in Italy, but they never have ancient coins in for display in their windows. The market fuels looting. Exhibits are better. They cater to non-collectors. The Pompeii exhibit drew as many as 2000 visitors per day. Barton disputed Rick Witschonke’s claim that the MOU was not working. It has reduced sales as proven by the fact that there are fewer ancient artifacts being auctioned by companies like Christie’s.

Elise Freedman is an assistant professor of classics at GW University. Students should understand the context of ancient art. This needs to be documented. The MOU seeks to encourage context to be documented. It also includes provisions for loans like the Rome and America exhibit.

Sebastian Heath is an AIA VP and is also associated with the American Numismatic Society, but he spoke on his own behalf. Coins are important to the cultural history of Italy and should be included in the MOU. We know Emperor Augustus gave out coins as New Year's Day gifts. We also know that a Roman knight was put to death for defacing the images on the coins. This shows they were considered bearers of meaning outside of their importance to archaeology. Fourth Century burials with coins depicting Christian symbolism tell us something about who was buried. If the coins had been looted, this information would have been lost. Coins are under threat. EBay sells coins still covered in dirt. The MOU needs to be amended to include coins to protect them from looting. CPAC member Robert Korver (trade) asked if the ANS had a position on the Italian renewal. Heath indicated “no.” [The ANS has a more general cultural property statement on its website.]

Laetitia La Folette is a classics professor at the University of Massachusetts. The Italian government has been cooperative in helping to set up exhibits. These exhibits give Americans contact with Italian culture.

Richard Leventhal is a professor with the Penn Cultural Heritage Center. Context must be preserved. There are top down and bottom up methods to do so. There needs to be community outreach to help. According to Leventhal, there is no such thing as a duplicate. The context in which every artifact is found makes each artifact important individually. The licit trade does not make sense. Loans do.

Clemente Marconi is a professor of Greek Art and Archaeology at NYU. He has excavated in Western Sicily. He believes the MOU has been effective tool in staunching looting and that it should be extended to include coins, which have been the targets of individuals with metal detectors. He also supports the longer term loans.

Brian Rose is the President of the AIA. The AIA has 8,000 professional members and 200,000 subscribers to its Magazine, Archaeology. He also is associated with the University of Pennsylvania Museum. He has knowledge of coins through his excavations at Troy. Italians collaborate in rights to publish archaeological material, which is welcome. Prof. Rose does not want to speak against collecting but rather in support of preservation of context. He has first hand experience about the importance of coins found in context from his excavations at Troy. Some of the coins support the view that the Romans considered themselves to be descendants of the Trojans. Rose was surprised to hear Phillipe de Montebello admit recently that he believes that the era of the big museum purchases is over. Rose would like to see the MOU renewed and would support its extention to coins should Italy seek it. In response to a question from CPAC member Robert Korver (trade), Rose thinks coins found out of their original context could still be important if the new context associates them with later time periods. CPAC Chairwoman Reid asked what Rose would suggest as to coins, since it appears broad import restrictions would be impossible to enforce. In response, Rose indicated the early coins of Magna Graecia and the Etruscans were a much smaller subset of coins to which restrictions could be imposed. He also believes that Italy should ban the use of metal detectors.

Prof. Patty Gerstenblith is a law professor at DePaul. She also acts as president of the Lawyers' Committee for Cultural Heritage Preservation. She indicated that many of the speakers opposing the MOU were "blowing smoke." The MOU is necessary because it provides protections beyond those available under criminal law. There is no “scienter” or intent requirement for illicit artifacts to be seized. It is extremely difficult for the government to prove intent so import restrictions are an important part of the arsenal against looting. Importers may contest country of origin determinations so their rights are adequately protected under the relevant statutes. She does not believe that renewal of the restrictions is dependant on Italy's compliance with the long term loan requirements under Article II of the MOU, but she nonetheless supports long term loans.

CPAC was then invited to ask Prof. de Caro additional questions. Prof. Boyd (Museum) indicated that he favored a licit trade and rewards to finders. De Caro indicated that Italy had some provision for rewards of 1/4 of the value of the artifact for items found on private property, but there were few claimants. He also indicated that Italy allows for the export of some ancient coins. He noted there was a large seizure of ancient coins in the not too distant past. Prof. Reid (Museum) asked de Caro if Italy would contemplate something akin to the United Kingdom's Portable Antiquities Scheme. De Caro indicated there was talk about a pilot program in two regions in the North that were away from archaeologically sensitive areas.