Part III
Elena Simina Tănăsescu, Ph.D., Professor, University of Bucharest, Freedom in Art
Individual freedom lies at the core of modern societies and freedom of expression is one of the foundational basic rights in any liberal democracy. While the starting point for legal protection of freedom of expression used to be free political speech or freedom of the press, today there is a large variety of a virtually infinite number of forms of expression (oral, written, images, sounds, mimics, gestures, actions, abstentions, etc.) that benefit of this protection.
Art, on the other hand, remains one of the most important and most difficult to define values of contemporary societies. Art can be either an action or an object, or a collection of actions or objects created with the intention of transmitting ideas emotions and/or ideas. It would therefore seem reasonable that while being one of the many forms human actions take, art should be legally protected in the same way other human actions are.
This paper is trying to understand the complex relationship established between art and freedom in contemporary (post-modern) societies, in the context of art’s aspiration towards absolute and freedom’s impossibility to be absolute. The starting point is the factual observation that modern societies tend to consider artistic creation as a special form of human activity and artistic freedom as deserving a special treatment, more protective and/or more tolerant.
However, when tested through law’s filter, art no longer enjoys such a privileged regime. States may encourage or restrict artistic freedom. They can use legislative or judicial instruments and act at national or international level. With few exceptions, states treat artistic freedom rather like any other liberty, endowed with regular limita-tions and, at times, even subject to more rigorous tests than other fundamental rights.
Keywords: freedom, art, fundamental rights, owners, beneficiaries, legal protection, artistic freedom, freedom of creation, freedom of expression, intellectual property, state, constitution, international law
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