Are There Regulations Governing the African Art Market?
- Fredrick Favour
- 4 days ago
- 8 min read
A publication by the Ben Enwonwu Foundation lamented that a wave of counterfeit Ben Enwonwu paintings had once inundated the art market, even selling for hefty figures at reputable auction houses both locally and internationally. This exposes deep fissures in the mechanisms designed to protect authenticity, creative expression and cultural heritage, revealing a lot about the African art market: that things weren't always as regulated as one might expect.
This begs the fair question: are there rules for the African art market? On the one hand, you see these amazing, beautiful paintings and sculptures. On the other hand, you hear whispers of murky deals and art leaving the continent without the right paperwork. The truth is there are regulations, but they are more like a patchwork quilt than a clear set of rules.
The African art market isn’t regulated by one single set of rules; instead, each country often develops its own framework. In many of these countries, regulations are still evolving, meaning that while some aspects are strictly controlled, others are surprisingly under-regulated and in most cases, poorly implemented.
With a focus on the Nigerian ordinance, we’ll look into the rules and legal frameworks that govern the African art market. This circles on everything from copyright and cultural heritage laws to taxation and customary duties to see how these pieces come together.
Constitutional Pillars of Nigeria's Art Industry
The 1999 Constitution of the Federal Republic of Nigeria (as amended) lays the groundwork for cultural preservation and individual rights.
Section 21 mandates that the state protect, preserve, and promote Nigerian cultures—an imperative that not only enhances human dignity but also serves as a catalyst for technological and scientific studies that enrich cultural values.
Section 44(1) guarantees every citizen the right to own and acquire movable property, thereby affirming the right to purchase and possess artworks.
Commercial Framework: The Sale of Goods Act, 1893
While artists create for expression, the commercial sale of art is governed by the Sale of Goods Act of 1893. Although originally designed for general commerce, its principles have been adapted to art transactions:
Implied Terms and Quality: The Act provides for certain implied terms to ensure that artworks conform to any description or sample provided. This is particularly relevant when determining authenticity, condition, and provenance—complex issues that uniquely affect art.
Transfer of Property: Clear provisions outline when ownership passes from seller to buyer, a critical safeguard against disputes over stolen or misattributed works.
Warranties and Representations: Sellers are typically bound by warranties concerning the authenticity and provenance of the art they sell. If these warranties are breached, the buyer may seek remedies such as rescission of the contract or damages.
Intellectual Property Protections: The Copyright Act, 2022
The Copyright Act of 2022 is one of those regulations central to safeguarding the creative rights of Nigerian artists. Its objectives are broad and multifaceted:
Objectives and Scope: Section 1 states that the Act is designed to protect the rights of authors, ensuring they receive just rewards and recognition for their intellectual endeavours; provide appropriate limitations and exceptions to guarantee access to creative works; facilitate Nigeria’s compliance with obligations arising from relevant international copyright treaties and conventions; and enhance the capacity of the Nigerian Copyright Commission (“NCC” or the “Commission”) for effective regulation, administration, and enforcement of the provisions of the Act.
Categories of Protected Works: As outlined in Section 2, a wide array of works—including literary, musical, artistic, audiovisual, and sound recordings—are eligible for copyright protection.
Exclusive Rights: Under Section 10, copyright confers upon the artist an exclusive right to reproduce, publish, broadcast, and adapt their work, among other privileges.
Moral Rights: Section 14 guarantees that an artist has the right to claim authorship and to prevent any distortion or modification of their work that might prejudice their honour or reputation.
Resale Proceeds: Significantly, Section 17 ensures that even after the initial sale, the artist retains an inalienable right to a share in the proceeds of any subsequent public auction of their original work.
Duration and Transferability: Copyright protection lasts until 70 years after the end of the year in which the artist dies (Section 19), and the rights initially vest in the author, being considered movable property and transferable through assignment or testamentary disposition (Sections 8 and 9).
Default: Under Section 36(a), copyright infringement occurs when someone, without the copyright owner's permission, performs or authorizes an act that violates the exclusive rights granted by the Act. This provision establishes that a principal can be held liable for the actions of their agent, similar to the legal principles of vicarious and contributory liability.
Remedy Against A Copyright Infringer: Section 37(2) of the Act provides that a party claiming in a civil enforcement action is entitled to remedies that include damages, injunctions, accounts, and other remedies similar to those available in cases of proprietary rights infringement. These may include orders for inspection, seizure, forfeiture, and destruction.
Digital (Online) Infringement: Section 54 of the Act establishes a notice and takedown system for online copyright infringement, creating specific liabilities, remedies, and defences. Copyright owners can issue infringement notices to service providers, requesting the removal of infringing content from their systems or networks. Under section 55, the service providers are obligated to promptly take down or disable access to such content upon receiving a notice. Section 55(6) provides a defence for service providers who comply with the notice and takedown procedure in good faith. They are not liable to any person for any action taken in compliance with the notice of infringement.
Non-compliance with a notice can result in service providers being held liable for copyright infringement. Failure to comply with a valid notice can lead to liability for breach of statutory duty and copyright infringement, to the same extent as the person responsible for posting the infringing content.
Criminal Copyright Provisions: The Act specifies copyright liability for infringement and related offences. Section 44 details criminal infringement for specific acts:
(a) makes or causes to be made for sale, hire or for the purposes of trade or business any infringing copy of a work in which copyright subsists;
(b) imports or causes to be imported into Nigeria, other than for private or domestic use, a copy of any work which, if it had been made in Nigeria, would be an infringing copy;
(c) has in his possession, any plate, master tape, machine, equipment, device or contrivance for the purposes of making any infringing copy of any such work;
(d) sells, lets for hire or for the purposes of trade or business, exposes or offers for sale any infringing copy of a work;
(e) distributes for the purposes of trade or business any infringing copy of a work;
(f) has in his possession other than for his private or domestic use, any infringing copy of a work;
(g) has in his possession, sells, lets for hire or distributes for the purposes of trade or business or exposes or offers for sale or hire any copy of a work which if it had been made in Nigeria would be an infringing copy;
(h) distributes to the public for commercial purposes, by way of rental, lease, hire, loan or similar arrangement, copies of a work in which copyright subsists;
(i) communicates to the public or makes the work available to the public by wire or wireless means in such a way that members of the public are able to access the work from a place and at a time individually chosen by them for commercial purposes
(j) does any of the acts specified under section 13(1)(a)-(e) of this Act, in respect of a broadcast;
(k) aides or procures any of the offences listed above
Fiscal and Trade Considerations
Art transactions in Nigeria are further shaped by several fiscal and trade-related statutes:
Value Added Tax (VAT) Act: With a current VAT rate of 10% as revised earlier this year, the sale of artworks is subject to this consumption tax, which influences pricing and compliance for artists, galleries, and auction houses.
Customs and Excise Management Act: This Act governs the import and export of artworks, ensuring that cultural artefacts and high-value art objects are appropriately documented and taxed. It governs how cultural property, including artworks, is handled at Nigeria’s borders—ensuring that imports and exports comply with legal standards. This is important for preventing the illicit trade of cultural artefacts and for ensuring that any movement of art across borders is properly documented and duties paid.
The Nigerian Customs Service Board Act: The Nigeria Customs Service Act of 2023 (No. 35 of 2023) is a law that reforms the management of customs and excise in Nigeria. The act covers topics such as customs representatives, intellectual property rights, and risk management.
Cultural and Institutional Support
To promote and nurture Nigeria’s artistic heritage, additional statutory measures play an essential role:
National Council for Arts and Culture Act: The National Council for Arts and Culture (NCAC), established by Decree No. 3 of 1975 and later amended by Decree No. 5 of 1987 (now Cap N24 Law of the Federal Government of Nigeria), is the body responsible for coordinating, developing, and promoting Nigerian arts and culture both nationally and internationally. The NCAC's mandate is to revive and develop Nigerian arts and culture, reinforcing the state’s commitment to cultural enrichment.
National Art Gallery Act: This Act ensures the systematic collection, preservation, and exhibition of Nigerian visual arts, while also promoting art education and curatorial practices.
Trademarks Act (Cap T13, Laws of the Federation of Nigeria 2004): This Act enables artists and cultural institutions to register trademarks for distinctive marks, logos, or symbols, thereby safeguarding their identity in commerce as well as sue for infringement in the Federal High Court.
Laws on Cultural Property in Nigeria
Nigeria’s legal framework for protecting cultural property is as swayed on different branches as its rich artistic heritage—no single piece of legislation governs it all. Instead, various laws and international commitments come together to safeguard the nation’s cultural legacy while facilitating the art market.
Here’s how these legal instruments are spread across several specialized statutes:
National Council for Museums and Monuments (NCMM) Act (1979): This Act established the NCMM as the principal body for safeguarding Nigeria’s cultural heritage. It repealed previous antiquities laws, streamlining efforts to identify, collect, and preserve items of historical significance.
National Gallery of Art (NGA) Act (1993): With the creation of the National Gallery of Art, this legislation provides a formal repository for Nigerian visual arts, supporting research, education, and public appreciation.
National Council for Arts and Culture (NCAC) Act (1975): The NCAC Act establishes a council dedicated to planning, coordinating, and promoting arts and cultural activities across Nigeria, ensuring that creative expressions receive the necessary institutional support.
National Archives of Nigeria Act (1992): The Act empowers the National Archives to maintain public records including constitutional instruments, treaties, and laws; thus preserving the documentary heritage that underpins Nigeria’s cultural identity.
A significant portion of the Nigerian art market remains informal. The market’s informal side, where traditional art is traded might operate under community customs rather than formal regulations. This duality creates challenges in consistent enforcement but also offers a lively, grassroots component to the market. While these discussed laws exist on paper, resource limitations and inconsistent enforcement mean that violations, especially in the informal market are not always addressed swiftly, often not blinked at. As digital art and online sales continue to grow, Nigeria’s regulatory bodies will need to expand their oversight to include digital platforms, ensuring that the rights of artists are protected in cyberspace.
In short, generally, there is still much room for growth and improvement. And as the market matures, it is expected too of the legal and ethical standards that help safeguard its unique treasures.
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