The controversial rules for the reproduction of cultural heritage in Italian law
In a previous article we illustrated the particular regulation of images for the Italian intellectual property law. However, when dealing with the issue of creating or reproducing images of cultural heritage, it is also necessary to take into account the rules relating to the protection of cultural heritage, which create many problems of interpretation and bureaucratic complications in Italy and, among other things, in recent months they have re-entered the public debate on the occasion of the transposition of the copyright directive of 2019.
These rules fall within the area of administrative law that is very different from the area of intellectual property law. Administrative law responds to very different logics: the sources of law are different; the logic is different and what is protected is the public good and not the interest of a private subject; the dynamics are different and it is essential to be aware of the role and skills of the various public bodies that come into play; the enforcement tools are different, so we do not have a subject suing another, but rather we have a specific public authority that imposes an administrative sanction. We considered this general premise useful to invite readers not to confuse and not to put the principles set out on intellectual property on the same level with those that we will illustrate in the next paragraphs.
1. The particular rules in articles 107 and 108 of the Italian Code of Cultural Heritage
The Legislative Decree no. 42 of 2004, also known as the “Code of Cultural Heritage” (or “Codice Urbani” in the name of its main promoter), contains some rules dedicated to the reproduction of cultural heritage: these are articles 107, 108 and 109. These norms deal both with reproductions that involve physical contact with cultural heritage (i.e. the casts of sculptures and works in relief), and with reproductions that do not involve physical contact; the latter are the most frequent and are those that most interest our reflection. According to art. 107, the former are as a rule prohibited or permitted only exceptionally and in compliance with the procedures established by a specific ministerial decree; while the latter are generally allowed, subject to compliance with some limits provided for by the following articles, by other regulatory texts, as well as — note well — by the regulations adopted by the various administrations and obviously by copyright (if there is a copyright). It is important to clarify that from here on we will refer only to cultural heritage for which the copyright has already expired peacefully, which moreover represent the vast majority of cases.
Article 108, on the other hand, deals with establishing the criteria for the concession fees and for the fees connected to the reproductions of cultural heritage, which are determined by the authority that is delivering the goods (paragraph 1) and must be paid in advance (paragraph 2).
The part of the provision that is more central for the purposes of our analysis is however represented by paragraphs 3 and 3-bis; both were the subject of two successive reforms: the first with Law 106/2014 and the second with Law 124/2017 (which entered into force on 29 August 2017). It is useful to report in full and briefly comment on the text of the two paragraphs:
“3. No fee is payable for reproductions requested or performed by private individuals for personal use or for study purposes, or by public or private subjects for enhancement purposes, as long as they are implemented on a non-profit basis. Applicants are still required to reimburse the expenses incurred by the granting administration.
3-bis. In any case, the following activities are free, when carried out on a non-profit basis, for purposes of study, research, free expression of thought or creative expression, promotion of knowledge of cultural heritage: 1) the reproduction of cultural assets other than archival assets subject to access restrictions pursuant to Chapter III of this title, implemented in compliance with the provisions that protect copyright and with methods that do not involve any physical contact with the asset, nor its exposure to light sources, nor, interior of cultural institutes, the use of stands or tripods; 2) the dissemination by any means of the images of cultural assets, legitimately acquired, so that they cannot be reproduced further for profit.”
In general, the whole system of protection of the reproductions of cultural heritage described here appears very conservative[1] also from the semantic point of view. Article 107 says verbatim that public administrations that have cultural assets in delivery “may” allow reproduction, as if to underline that reproduction is not at all a “right” for citizens, but a “kind concession” that institutions publics can offer or deny. On the other hand, these rules, although reformed in 2014, date back to years in which the opportunities offered by the free dissemination of public information and cultural heritage were not fully perceived. Today, with the explosion of affordable photography apps and image-focused social media such as Instagram, certain constraints seem truly anachronistic.
2. Main problems related to these rules
Paragraphs 3 and 3-bis had been added to complete article 108 and make it more appropriate to the contemporary context, which has already profoundly changed compared to the years of drafting the Code of Cultural Heritage in its original version (2004). Nevertheless, many had quickly pointed out that their conception could be more oriented in the direction of the freedom of reproduction and that their enunciation could be clearer; in fact, both in the scientific community and in the associations and informal groups of users in recent years we have seen a debate develop that has contributed to the approval of the latest amendment to the standards. Only with time and with any case law based on these rules, will we discover whether this step is sufficient or needs further adjustments.
From the reading of these norms, we can deduce that, although a general principle of free reproduction of cultural heritage already fallen into the public domain has been established, in fact the reproduction is far from free, since it is in any case subject to prior authorisation, as well as to prior payment of a fee. Furthermore, a not insignificant element of interpretative uncertainty is added to the findings: the actual limits are established by regulations adopted independently by each public administration “custodian” of cultural heritage (archive, museum, library, gallery, etc.); consequently we cannot invoke homogeneous principles at national level, but from time to time we must refer to “second level rules”, which are often difficult to find.
The framework becomes more complicated and cumbersome if we consider that the most widespread practice provides that, in addition to applying the regulations governing the fees provided for in Article 108, the public administrations require the signing of a sort of license agreement to those who request use cultural heritage beyond the limits established by the law. In this document, the applicant declares in advance what uses he will make of the reproduction and above all undertakes contractually not to exceed certain conditions of use. With this approach, however, we go back to overlapping the level of administrative law on that of intellectual property law, and obviously also to allow a greater level of control over the reproductions of cultural heritage with consequent restriction of the public domain.
3. Is this a “pseudo-copyright” on the Italian cultural heritage?
Despite the insertion of a paragraph 3-bis which establishes a series of exceptions of free use, some experts have pointed out on several occasions that, regardless of what you want to call it and where you want to place it, the legal principle of Article 108 behaves (de facto) like a copyright and limits the diffusion and reproduction of works that have been cultural heritage of humanity for centuries, as they have fallen into the public domain. Those works are at the same time owned by everyone and owned by no one.
Also, we mostly talk about works that have never seen copyright (the real one) even historically, because their authors simply died long before the first copyright laws were passed. Giotto, Raffaello, Michelangelo, Bernini: all people who have never had the copyright on their creations; neither they nor their descendants. However paradoxically, now that we are in the age of the internet, of the digital revolution, of widespread access to knowledge, their works are subject to a kind of copyright owned by the museum or in any case the public body that holds the Opera. I called it “pseudo-copyright on the Italian cultural heritage” because while it is not technically a copyright, in essence it behaves as such, distorting the sense of the public domain and restricting its capacity. According to Carlo Piana (lawyer and copyright expert), this “pseudo-copyright” does not even exist and is nothing more than the result of an incorrect (and maliciously distorted) interpretation of the law; since the true rationale of art. 108 would be to protect the cultural property and not the images drawn from it.
Only Italy and a few other countries in the world have a similar principle in their legal system; many point out that this depends on the fact that Italy has the richest and most precious artistic and cultural heritage on the planet. Undoubtedly a valid argument. But are we really sure that this is the right way to protect and promote it? Or, as has emerged several times, is the cost of the bureaucratic system that public bodies must activate to manage the authorisations greater than the net revenues actually collected? I leave this type of evaluation to other experts (economists, archaeologists, political scientists). However, there is an indisputable fact: Italy is a member of the European Union and, as such, must comply with supranational law, without approving rules that are directly or indirectly in conflict with the directives.
4. Doubts about compatibility with the copyright directive
With the approval of the new copyright directive in 2019 (Dir. 2019/790/EU)[2], a debate began in order to understand whether it was necessary for the Italian legislator to modify the aforementioned rules relating to the reproduction of works of the visual arts. In fact, article 14 of the directive states that
“when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation.”
The article seems very clear and the Whereas n. 53[3] of the directive further contributes to avoiding any interpretative doubts: once the works have fallen into the public domain, it is no longer possible to “superimpose” a layer of property rights to control their dissemination and reproduction; therefore the mere photographic reproductions (two-dimensional and “faithful”, like those included in art history books or exhibition catalogs) of paintings and frescoes in the public domain are in turn in the public domain, since they add nothing original/creative.
On the occasion of the decree implementing the copyright directive in the Italian legislation (Legislative Decree 177/2021, approved on November 8, 2021), the debate on images of cultural heritage reopened. Many hoped that the Italian legislator would take the opportunity to also amend articles 107 and 108 of the Code of Cultural Heritage to fully implement the provisions of article 14 of the directive (which we have already talked about in the previous paragraphs); instead this did not happen. The new article 32-bis introduced in Law 633/1941, on one hand reproduces almost verbatim the text of art. 14 of the directive, on the other hand expressly states that “the provisions regarding the reproduction of cultural heritage remain unchanged”.
How can article 108 remain unchanged without coming into conflict with the provisions of the directive? Many are asking this question. In fact, although Article 108 does not create a right expressly qualified as a copyright or neighbouring right, de facto it creates in favour of museums and other cultural institutions the power to authorise or not authorise the reproductions of the cultural heritage and to impose the payment of a compensation (more properly “fees”[4]) for such reproductions. The effect is to implicitly contradict and therefore jeopardise the provisions of Article 14 of the directive.
As a personal consideration on this specific issue, I have the impression that the Italian legislator enjoys playing word games, using a dissonant nomenclature (“it is not a compensation for a neighbouring right, it is only a fee for reproduction”) and also to play with the placement of words (in fact the rules are inserted in different legislative texts). I do not believe that this is sufficient to circumvent the obligations deriving from the European directives. And we must also consider the hypothesis that the incompatibility between art. 108 of the Code of Cultural Heritage and art. 14 EU Directive 790/2019 is raised before any judge or even brought before the EU Court of Justice.
References for further information
Aliprandi, S. (2017). Vincoli alla riproduzione dei beni culturali, oltre la proprietà intellettuale; chapter of Serlorenzi, M. & Jovine, I. (editors), Pensare in rete, pensare la rete per la ricerca, la tutela e la valorizzazione del patrimonio archeologico, Archeologia e Calcolatori, All’Insegna del Giglio, 2017. http://aliprandi.blogspot.com/2017/11/vincoli-riproduzione-beniculturali-archeologia-calcolatori.html.
Casini, L. (2018). Riprodurre il patrimonio culturale? I “pieni” e i “vuoti” normativi. Aedon. Rivista di arti e diritto on line, 2018, 3. http://www.aedon.mulino.it/archivio/2018/3/casini.htm.
Modolo, M. (2021). La riproduzione del bene culturale pubblico tra norme di tutela, diritto d’autore e diritto al patrimonio. Aedon. Rivista di arti e diritto on line, 2021, 1. http://www.aedon.mulino.it/archivio/2021/1/modolo.htm.
Musso, A. (2010). Opere fotografiche e fotografie documentarie nella disciplina dei diritti di autore o connessi: un parallelismo sistematico con la tutela dei beni culturali. Aedon. Rivista di arti e diritto on line, 2010, 2. http://www.aedon.mulino.it/archivio/2010/2/musso.htm.
Petri, G. (2014). The Public Domain vs. the Museum: The Limits of Copyright and Reproductions of Two-dimensional Works of Art. Journal of Conservation and Museum Studies, 12(1). DOI: http://doi.org/10.5334/jcms.1021217
Notes
[1] We invite you to read the appropriate reflections of many authoritative authors that are collected in the book edited by Merete Sanderhoff. Here is a short excerpt from the Foreword signed by the editor: «Cultural heritage belongs to everyone. It was created by — and for — all kinds of people. The digitization of physical heritage objects enables them to move out of storage rooms, library shelves, and file drawers, and land in the hands of the worlds’ citizens. When cultural heritage is digital, there is nothing standing in the way of sharing and reusing it.» Sanderhoff, M. (editor) (2014). Sharing is caring. Openness and sharing in the cultural heritage sector, Copenhagen: SMK. https://www.smk.dk/wp-content/uploads/2018/10/94124_sharing_is_Caring_UK.pdf.
[2] European Union directive no. 790 of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC. Full text available here: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019L0790.
[3] For a better understanding of the rationale of art. 14, we report the text of Whereas n. 53: “In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage. In the digital environment, the protection of such reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works. In addition, differences between the national copyright laws governing the protection of such reproductions give rise to legal uncertainty and affect the cross-border dissemination of works of visual arts in the public domain. Certain reproductions of works of visual arts in the public domain should, therefore, not be protected by copyright or related rights. All of that should not prevent cultural heritage institutions from selling reproductions, such as postcards.”
[4] Italian “canoni”.
