Copyright law and cultural heritage in Italy: work in progress

Copyright law and cultural heritage in Italy: work in progress The author Ramon Romano is an affiliate researcher at the Euro-Mediterranean Institute of Science and Technology in Palermo; he holds a PhD in Civil Law from the School of Law of the University of Florence and a specialization in copyright law from the Berkman Klein Center at Harvard University. This article In the age of knowledge sharing this contribution reviews the current Italian legal framework relating to protectable cultural heritage. This study guides the reader across freedom of panorama, freedom of research, public property and common goods to show the inextricable relation between public and private law in these areas. The author hopes to identify the best tools in legal knowledge management to help build a new European management model for cultural heritage. 1. Introduction It is in the public interest to protect, preserve and enhance cultural heritage. Private interest in this area can serve the same goals or can disclose mere economic purposes. The latter are evident with particular regard to copyright and copyright licences. The link and struggle between cultural heritage and copyright is a long-standing one In Italy this connection is rooted within and corresponds to the first definition of cultural good, which—in addition to being a material good (Art. 2(2) of Codice dei beni culturali e del paesaggio, that is, the Code of the cultural goods and the landscape (Legislative Decree 22 January 2004, No. 42; hereinafter ‘CBC’)—is ‘a testimony of the value of civilization’,1 that is, a peculiar, irreparable and destructible, immaterial good (as we can understand from the wording of Art. 120 CBC).2 The boundless nature of cultural heritage reveals a double nature of copyright law. It is, at one and the same time, a life-saving medicine (when protection preserves the artistic value) and mortal poison (when, instead, economic exploitation cleanses it). In light of the present social, technological and judicial innovations the Italian copyright’s and cultural heritage’s law are, nevertheless, significantly transformed. They are polarized themselves in an unprecedented way on the first – ‘life-saving’ – side, to enhance the public interest in protecting the cultural value of the work privately owned. The examination of relevant transformations will allow us to elaborate a new legal management model of the cultural goods, that would be different with respect to the logic of the ownership. It should be pointed out that a coherent framework is lacking: the CBC is considered, in fact, mostly a summary of definitions and programmes, not a set of rules on the exercise of rights.3 Copyright law in Italy has revealed three cultural missions. First, it has an ‘incentive mission’ to favour the development of cultural heritage; it also has a ‘protective mission’ for the preservation of our collective memory and, finally, it can serve an ‘educational mission’ for cultural heritage. Italy has acknowledged an ‘incentive mission’, since the fifteenth century. For instance, in the Venetian Republic there was a statute that granted a ‘privilege’, that is, a patent (and its related economic benefits), that lasted ten years, to the ‘guild of glaziers’ rather than to a single glazier. These masters were those who created glass artworks such as those made in Murano and, at that time, infringement of craft secrets was punished with death. The related artworks were not protected directly by copyright, even if the first copyright laws have existed in Venice since the late 1400s. During the Renaissance, it was recognized that promotion of an appropriate cultural image a city could demonstrate greater political power. In the Municipal Age—when Italy was fragmented into several small states—art continued to be a political tool, and this is possibly the main reason why Italy has an outstanding cultural heritage.4 In a utilitarian view (Mill, Bentham) artworks were the instruments that promoted economic growth and today allow us, when visiting noble palaces, such as Palazzo Pitti in Florence, to enjoy amazing chandeliers (without legal protection against copying, such creations—that would become part of our cultural heritage—would likely not be produced being non-efficient goods from an economic standpoint).5 In addition to an ‘incentive mission’, intellectual property law, especially copyright law, has a ‘protective mission’ in relation to cultural heritage. This in Italy has developed through ‘double track’,6 ie two profiles: public and private. The public profile is represented, first of all, by Art. 9 of the Italian Constitution, which expressly protects and enhances the historical and artistic heritage of the nation. There are also European rules, such as Art. 3 of the Treaty on the European Union (TEU) and Art. 167 of the Treaty on the Functioning of the EU (TFEU), that express general principles of conservation and safeguarding of cultural heritage. Italy has also adhered to international conventions (from the convention for the Protection of Cultural Property in the Event of Armed Conflict). This said, in the national legal system (after a number of provisions enacted by the Bourbons in 1775 regarding Pompeii’s archaeological site protection and Croce’s Law (1920) for the landscape’s protection) the first comprehensive law on the protection of cultural heritage was Bottai’s Law of 1939 (1089/1939); after many decades we now have the aforementioned CBC, the principal legislative reference for cultural heritage protection in Italy. 2. The legal framework The protection of art has its main constitutional matrix in Art. 35 of the Italian Constitution. The same rule can be found in the 1942 Italian Civil Code, sub Art. 2060. In addition, the Copyright Act (Law 22 April 1941, No. 633, hereinafter ‘LDA’) and the Italian Civil Code (Arts. 2575–2583) defend the economic interests (Art. 25 LDA) and the moral rights of the author (Arts. 20–23 LDA and Art. 2577 of the Italian Civil Code, which set a perpetual term). Moral rights—the right to reveal and claim authorship, the right to publish, the right to withdraw copies of the work from commerce and the right of integrity in the work—belong to the author (Arts. 20–21 LDA); upon his/her death they are attributed, from generation to generation (perpetually), to his/her descendants as their own right, that is, as a personal right (Art. 23 LDA) to defend the author’s memory and his/her cultural message.7 Shortly after to the ‘Bottai's law', that in 1939 mandates the public enjoyment of cultural heritage (art. 7), one of the first provisions relating to the protection of cultural goods could be found sub art. 23(2), LDA. The provision expresses a sort of partnership between public administrations and citizens as regards cultural heritage protection; it states that if the family’s interest to protect an artwork becomes a public interest to protect a cultural good, the same possibilities provided for within Art. 23 LDA shall be attributed to the Government (originally to the Prime Minister, now the Ministry of Cultural Heritage, which was established in 1975). Relevant EU Directives seem to favour public interest. Dir. 28/2012/EU on the use and protection of orphan works (which could also be part of cultural heritage)8 sacrifices private interests to allow the cultural dissemination of works otherwise locked away. Legislation on orphan works expresses the link between the purpose of dissemination promoted by cultural heritage rules and the limits of copyright. This balancing exercise can be also identified in international conventions, such as the UNIDROIT Convention on stolen or illegally exported cultural goods, signed in Rome in 1995 and which regulates the civil liability in the movement of cultural objects. For example, Art. 4 therein states—albeit implicitly—that compensation for the purchaser of a work stolen also depends on the existence and the knowledge (also potential knowledge) of the rights, both moral and economic, over the cultural good. 3. The struggle between cultural needs and copyright On consideration of the above, the condition whereby a cultural object can be entitled to copyright protection is that it displays a sufficient degree of originality (Art. 1 LDA). If it also has a cultural value for society (Art. 12 CBC), then it can also be protected under the CBC. An artwork can possess both.9 Nevertheless the law (Art. 10(5) CBC) states that an artwork, such as a sculpture, made by a living author up to 50 years from its creation, cannot be regulated by cultural heritage’s rules. Even the artistic buildings – i.e. the architectural works, whose drawings, diagrams, maps, charts, plans and models are copyrighted - have the higher limit of 70 years. So, a sculpture created in 1970 by an artist who passed away in 2010 will receive cultural protection in 2020 (if the sculpture belongs to the building’s façade the ‘cultural protection’ will only begin in 2040). Until 2080 the sculpture will be protected by copyright (Art. 25 LDA), while moral rights will last in perpetuity.10 At the moment, therefore, Italian law shows a potentially dangerous conflict of interests between the author’s economic interests and the public interest, because it is very difficult to say which interest should prevail during the last 20/40 years of copyright protection. Such potential conflict is also between two sets of values: fast and free movement of goods and protection of personal or public interests and rights.11 With regard to movable objects, it would be probably better to extend this privilege to 70 years; in fact, the general prevalence of the public interest over private interests allows us to observe a weakening of the exclusive rights over an artwork. Art. 107(1) CBC, states that the Public Administration could allow the making of copies of ‘cultural objects’ while respecting copyright; this attention to private interests, nonetheless, must be resized because there is a trend to overcome the typical exclusivity of copyright. In fact, according to Art. 107(2), in the conflict between the economic interest to make a cast of a sculpture and the public interest to forbid it, the latter should prevail. This conclusion is true, conversely to the 3D printing reproduction, whereas the egoistic interest not to license an artwork’s copy is often overpowered by the cultural and creative collective interests. From an artwork's photography, in fact, now we can ‘copy’ or ‘create’ ‘a distinguishable variation’ that can be considered a new work.12 Another case in which we can see the ‘favor rei publicae’, that is, the preference for safeguarding public interests, is in respect of the will to retire from commerce (‘ius poenitendi’) or destroy (‘ius abutendi’) an artwork that is also a cultural object; in this case the collective interest to the dissemination of a cultural message would prevail over the author’s moral rights. This trend is also proved by the ‘new’ Art. 15 LDA that, establishing a sort of fair use, allows the playing of music and reading of literary works of others in museums or public libraries, so that they are known and divulged. 4. The armed David case There are cases that show that a cultural object’s reproduction is governed as the reproduction of an artwork. In these cases, Italian public law (CBC) mirrors copyright law (LDA) regulating ‘licences’ and ‘fair use’. Significant in this sense is the ‘armed David case’.13 Michelangelo’s David has been hosted in Galleria dell’Accademia in Florence since 1873 and its material reproduction is subject to a sort of licence from the competent public administration that verifies the compatibility between the stated purpose and the cultural destination of the artwork (Arts. 106–107 CBC); licences are provided subject to the payment of a fee (Art. 108 CBC). In 2014 US company USA ARMALITE did not comply with either rule in its campaign to promote the sale of its weapons by making an outrageous photomontage depicting David armed with a machine gun. Italian government and the Director of the Galleria dell’Accademia immediately reacted against the US company; the case was eventually solved with the withdrawal of the image from the advertising campaign.14 This case may appear trivial, but starting from it, scholars have suggested a strict interpretation of the rules allowing the free reproduction of cultural goods (Art. 107 CBC), considering that relevant rules also apply with respect to digital reproductions. Attempts to exploit the image of David have, nonetheless, continued. On 22 November 2017 the Court of Florence stopped the commercial use (also online) of the image of David by a tour operator who wanted to resell tickets for Galleria dell’Accademia at a price higher than the official one.15 This case also shows how through the unauthorized use of the image of a cultural good it is possible to confuse visitors regarding official channels for purchasing tickets. To avoid enclosing access to and use of cultural heritage, however, in 2014 Art. 108(3) CBC was revised by the ‘Art Bonus Decree' (D.L. 31.5.2014, n. 83), specifying a liberalization or maybe the germ of a new ‘fair use'. Since 2014 it has not been possible to make reproductions of cultural goods for commercial purposes. However, it is possible to freely reproduce a cultural good (for example the image of David for a university lecture) when the purpose is non-commercial, for example for educational or creative use. Art. 108 CBC has been recently further amended (Law 124/2017) to also allow digital reproductions, with own medium, in libraries and archives for cultural aims. In general, the underlying goal is to enhance cultural heritage without impairing creativity, research and education. These reforms have nevertheless been considered potentially risky in that they appear to remove any control over the cultural heritage being reproduced, and do not require any permission or fee. However, guaranteeing freedom of research and dissemination of cultural heritage through a deregulation of scientific research appear laudable goals. 5. A ‘phantasmagorical’ freedom of panorama In view of the rise of digital technologies and the cultural needs of society, copyrights, right to property and personal image rights may form a ‘dam’ that prevent fair use of works. Referring to Art. 107(1) CBC, scholars have included ‘new copyrights’ such as the display of lights (for example on the Ponte Vecchio or Coliseum by night). In Italy, in contrast to many EU countries that have transposed article 5(3(h) of Dir. 2001/29/EC, there is no such thing as freedom of panorama.16 Freedom of panorama is an exception to copyright law, allowing the reproduction of monuments or other buildings permanently located on public display without the need for a licence. In Italy,17 where historically greater attention has been paid to the protection of cultural heritage than is the case elsewhere,18 these artworks are not in the public domain. When invoking the Italian cultural fair use within Art. 108(3) CBC, reference is not strictly to freedom of panorama and the non-commercial nature of the reproduction must be proven. However, overcoming previous opinions,19 it could be stated that de facto there is a non-commercial and non-professional freedom of panorama in Italy; nevertheless, its roots are found in the CBC rather than in the LDA. And it is for this reason that freedom of panorama in Italy can be regarded as ‘phantasmagorical’. One must also consider that when the reproduction of artworks and cultural goods are enclosed in a private area, is always forbidden. In fact, the property right (Art. 832 of the Italian Civil Code) encloses the image rights on all immovable and movable things that are present over the property.20 When they are visible from the public street, however, ownership of that area cannot prevent third-party reproductions, unless there are copyrights on relevant buildings or artworks (Art. 70 LDA). In some cases, furthermore, the privacy right (Art. 9 of the Italian Civil Code) could prevent the making of reproductions because there could be a link between the thing and the person (such as an unfeigned or a disclaimed artwork by its author); in other cases it is the personal right to reproduce the portrait of a relative (Art. 10 of the Italian Civil Code) that prevents the reproduction of a picture or a marble bust. All things considered, the possibility of prohibiting the free reproduction, that is expressed also within Art. 96 LDA, appears as a corollary of ownership entitlement and a projection of a personal right.21 In conclusion, unlike other countries, freedom of panorama can be never fully invoked in Italy, but will be only the smallest freedom of personal cultural use—a sort of free licence of cultural panorama. 6. The agreement logic Technological developments, through a smart use of IPRs, have allowed the opening up of a new legal policy in cultural heritage’s protection and enhancement. We have moved, in fact, from a logic of control to a logic of agreements. This direction was originally given by the Law Decree 31 May 2014, No 83 (‘Art Bonus Decree’) that amended the CBC (Art. 12(3) that modified Arts. 106–109 CBC) increasing the access and enjoyment of cultural goods online. This reform introduced the aforementioned Art. 108(3) CBC. This rule, as well as its recent extension to libraries and archives (Law 124/2017), has encouraged the dissemination of cultural heritage, finally granting a permit to individuals, not only for personal use, but also to reproduce cultural goods freely when there is a goal of valorization thereof. This appears more liberal than a free licence because any request to represent and any control on the use of the cultural good’s image is missing; nevertheless, this allows a rapid dissemination of knowledge, without the spatial and economic restrictions that have been encountered so far. Knowledge can now be represented as a common good. Such evolution is also evident in initiatives like the agreement between the Google Cultural Institute and the world’s most important museums on the creation of an open access database of artworks digitized in HD.22 Public institutions allow the free digital reproduction and Google provides a free universal license23 to enjoy those cultural goods, triggering a process of acquiring cultural awareness that comes out in social and economic benefits (tourism, academic relationships, better protection, education, etc). Over the historical ‘incentive mission’ and the general ‘protective mission’ we can see, in fact, that digital rules can have an educational mission, spreading the artwork’s cultural message throughout the world, the main aim being to democratize access to culture and promote its preservation for future generations.24 Conclusion The regulation of cultural heritage in Italy represents an exception in relation to the concept of property as an absolute right; the CBC is applied both to private owners (Art. 10(3) CBC) and public administrations (Art. 10(1)-(2) CBC)25. This probably signals that we should resort to some other classifications (see the Italian Supreme Court’s judgment on 14 February 2011, No. 366526). For example, in Italy, the Industrial Property Code (CPI) provides, within Art. 19(3), for the possibility of public administrations to obtain trade mark registrations, and also for distinctive graphic features derived from cultural, historical, architectural or environmental heritage of relevant territories. This rule is peculiar because, on the one hand, it expresses the value of the brand as an intangible projection of the cultural goods as public goods and, on the other, binds them to a general interest. Public property appears to prevail over copyright and freedom of panorama, even if nowadays we are witnessing a process of opening up the dialogue for the use of cultural goods. Beyond easy enthusiasms, recent reforms and agreements express political choices that have not led to the introduction of freedom of panorama, but rather respond to economic needs of the state. The risk of the property regime is the prevention of the exercise of fundamental rights (creativity, education, communication, teaching) that today are particularly strong; the risk of an uncontrolled freedom of panorama could be the commercial, selfish, use of common goods, a return of property through the back door and a real ‘tragedy of the commons’.27 The route towards a new legal management model of cultural heritage, alternative to proprietary or anti-ownership logic, is open. It will probably be based increasingly on the agreement between, public or private, cultural goods owners, copyright holders and other stakeholders (such as foundations or social media content providers). As expressed by the eminent jurist and philosopher Hans George Gadamer, following the teaching of Hegel and Heidegger on the relationship between art and gnoseology, culture is the only good of mankind that, when shared, instead of diminishing, becomes more abundant.28 Footnotes 1 MS Giannini, I beni culturali, in Riv. trim. dir. pubbl., 1976, p. 3 ff. See also G. Morbidelli, Il valore immateriale dei beni culturali, in Aedon, 1, 2014. 2 Cultural goods have a double statute, material and immaterial; unlike intellectual property, however, underlying rights do not subsist if the ‘cultural object’, to which they are connected, are destroyed: see M. Are, ‘Beni immateriali’, in Enc. dir., V (Milan, 1959), p. 251 ff. 3 A. Gentili, ‘Quale modello giuridico per i beni culturali?’, in G. Conte and S. Landini (eds), Principi, Regole, Interpretazione. Contratti e Obbligazioni, Famiglie e Successioni. Scritti in onore di Giovanni Furgiuele (Mantua, 2017), 1, p. 219. 4 For a historical overview see P. O. Long, Openess, Screcy, Authorship. Technical Arts and the Culture of Knowledge from Antiquity to the Reinassance (Baltimore, 2001), pp. 88–101. 5 W. Fisher, ‘Theories of Intellectual Property’ in R. Munzer (ed.), New Essays in the Legal and Political Theory of Property (Cambridge, MA, 2001), pp. 168, 194, 198. 6 A. Pojaghi, ‘Beni culturali e diritto d’autore’, in Dir. Aut. (Milan, 2014), p. 151. 7 Referring to P. Greco and P. Vercellone, I diritti sulle opere dell'ingegno, in Trattato Vassalli, XI, 3 (Turin, 1974), p. 345 ss. See contra A. Zaccaria, Diritti extrapatrimoniali e successione (Padua, 1988), p. 180, according to whom it would be a mortis causa right. 8 M. L. Montagnani, Le utilizzazioni delle opere orfane, in AIDA, 2013, p. 162. 9 Pojaghi, ‘Beni culturali e diritto d’autore’, pp. 149–50. 10 Ibid, p. 152. 11 R. Barberio, ‘Il regime e le forme di circolazione e di controllo dell’opera d’arte tra diritto d’autore e tutela del bene culturale’, in L’arbitrato ed il mercato delle opere d’arte (Reggio Calabria, 2011), p. 91 ff. 12 In the USA see Bridgeman Art Library Ltd. v Corel Corp., 36 F. Supp 2d 191, 196 (S.D.N.Y. 1999). 13 L. Casini, ‘“Noli me tangere”: i beni culturali tra materialità e immaterialità’, Aedon, 1, 2014. 14 The then Minister of Cultural Heritage and Tourism—Dario Franceschini—and the Director of Florence museums—Cristina Acidini—publicly stated that the Government would sue the company and that the museum would warn it; following these statements the company removed the image from its website. See http://www.lanazione.it/firenze/cronaca/2014/03/09/1036343-david-armato-franceschini.shtml (accessed 15 January 2018). 15 See http://www.lanazione.it/firenze/cronaca/david-michelangelo-ordinanza-immagine-1.3556006 (accessed 15 January 2018). A similar provision, soon after, was issued by the Court of Palermo to preserve the image of Massimo Theatre from unathorized exploitation by a local bank: see http://palermo.gds.it/2017/12/03/vietato-utilizzare-le-foto-del-teatro-massimo-per-fini-commerciali_767638/ (accessed 15 January 2018). 16 A. Spedicato, Piccola guida alla tutela della fotografia e dell’opera fotografica (Padua, 2012), p. 48. M. Dulong de Rosnay and P. C. Langlais, ‘Public Artworks and the Freedom of Panorama Controversy: a Case of Wikimedia Influence’, Internet Policy Review, 6, 1 (2017). 17 G. Cavagna di Gualdana, ‘Freedom of Panorama in Italy: Does it Exist?’, IPKat, 14 July 2017. Available at: http://ipkitten.blogspot.it/2017/07/freedom-of-panorama-in-italy-does-it.html (accessed 15 January 2018). 18 F. Morando, Diritti su i beni culturali e licenze libere, in Quaderni del Centro Studi Magna Grecia, 2011, reports how in the eighteenth century the Popes prohibited the reproduction of archeological remains. 19 However, we must consider that, in the response given on 5 February 2008 to the relevant parliamentary hearing, the MIBACT responded that ‘in Italy, since there is no specific legislation in place, it must be lawful to photograph freely all visible works, from the new building in the Ara Pacis site to the Coliseum, for any purpose, including commercial, with the exception that, in modifying or altering the object of the picture, this is offended in its decorum and in the values that it expresses.’ Nevertheless, this position appears incompatible with the CBC’s aims of protection and exploitation (Art. 107 CBC). In fact, the new art. 108 CBC—even if deleted the prior authorization—has imposed a requirement that the reproduction is for non-commercial purposes. This, even just potential, remains subject to a licence. 20 G. Resta, ‘Chi è proprietario delle Piramidi? L’immagine dei beni tra property e commons’, in Politica del Diritto, n. 4, 4 December 2009, pp. 582 and p. 593. 21 A. De Vita, sub art. 10, in AA. VV., Delle persone fisiche, in Comm. Cod. Civ. Scialoja-Branca (Bologna-Rome, 1988), p. 539, text and footnote 20. 22 See, eg, https://www.google.com/culturalinstitute/beta/partner/uffizi-gallery?hl=it (accessed 15 January 2018). 23 There is a free app on Itunes (https://itunes.apple.com/it/app/google-arts-culture/id1050970557?mt=8) and Google Play (https://play.google.com/store/apps/details?id=com.google.android.apps.cultural&hl=it) (both accessed 15 January 2018). 24 L. Sanger, ‘Who Says We Know: On the New Politics of Knowledge’, Edge: The Third Culture, available at: https://www.edge.org/3rd_culture/sanger07/sanger07_index.html (accessed 15 January 2018). 25 The private good becomes cultural by virtue of an administrative measure which ensures its ‘cultural’ quality (art. 13-15 CBC), this one must be notified to the owner and has its effect from the date of notification. Consequently there is a compression to the typical exclusive enjoyment on the good. See T. Autieri, Commentario al codice dei beni culturali e del paesaggio (Rimini, 2007), p. 161 ss. 26 In Giur. It., 2011, p. 12, with note of C. M. Cascione, Le Sezioni unite oltre il codice civile. Per un ripensamento della categoria dei beni pubblici, p. 2506 ss. 27 G. Hardin, ‘The Tragedy of the Commons’, Science, 162 (1968), 1243–8. 28 H. G. Gadamer, Truth and Method (London, 1989), passim. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Intellectual Property Law & Practice Oxford University Press

Copyright law and cultural heritage in Italy: work in progress

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Abstract

The author Ramon Romano is an affiliate researcher at the Euro-Mediterranean Institute of Science and Technology in Palermo; he holds a PhD in Civil Law from the School of Law of the University of Florence and a specialization in copyright law from the Berkman Klein Center at Harvard University. This article In the age of knowledge sharing this contribution reviews the current Italian legal framework relating to protectable cultural heritage. This study guides the reader across freedom of panorama, freedom of research, public property and common goods to show the inextricable relation between public and private law in these areas. The author hopes to identify the best tools in legal knowledge management to help build a new European management model for cultural heritage. 1. Introduction It is in the public interest to protect, preserve and enhance cultural heritage. Private interest in this area can serve the same goals or can disclose mere economic purposes. The latter are evident with particular regard to copyright and copyright licences. The link and struggle between cultural heritage and copyright is a long-standing one In Italy this connection is rooted within and corresponds to the first definition of cultural good, which—in addition to being a material good (Art. 2(2) of Codice dei beni culturali e del paesaggio, that is, the Code of the cultural goods and the landscape (Legislative Decree 22 January 2004, No. 42; hereinafter ‘CBC’)—is ‘a testimony of the value of civilization’,1 that is, a peculiar, irreparable and destructible, immaterial good (as we can understand from the wording of Art. 120 CBC).2 The boundless nature of cultural heritage reveals a double nature of copyright law. It is, at one and the same time, a life-saving medicine (when protection preserves the artistic value) and mortal poison (when, instead, economic exploitation cleanses it). In light of the present social, technological and judicial innovations the Italian copyright’s and cultural heritage’s law are, nevertheless, significantly transformed. They are polarized themselves in an unprecedented way on the first – ‘life-saving’ – side, to enhance the public interest in protecting the cultural value of the work privately owned. The examination of relevant transformations will allow us to elaborate a new legal management model of the cultural goods, that would be different with respect to the logic of the ownership. It should be pointed out that a coherent framework is lacking: the CBC is considered, in fact, mostly a summary of definitions and programmes, not a set of rules on the exercise of rights.3 Copyright law in Italy has revealed three cultural missions. First, it has an ‘incentive mission’ to favour the development of cultural heritage; it also has a ‘protective mission’ for the preservation of our collective memory and, finally, it can serve an ‘educational mission’ for cultural heritage. Italy has acknowledged an ‘incentive mission’, since the fifteenth century. For instance, in the Venetian Republic there was a statute that granted a ‘privilege’, that is, a patent (and its related economic benefits), that lasted ten years, to the ‘guild of glaziers’ rather than to a single glazier. These masters were those who created glass artworks such as those made in Murano and, at that time, infringement of craft secrets was punished with death. The related artworks were not protected directly by copyright, even if the first copyright laws have existed in Venice since the late 1400s. During the Renaissance, it was recognized that promotion of an appropriate cultural image a city could demonstrate greater political power. In the Municipal Age—when Italy was fragmented into several small states—art continued to be a political tool, and this is possibly the main reason why Italy has an outstanding cultural heritage.4 In a utilitarian view (Mill, Bentham) artworks were the instruments that promoted economic growth and today allow us, when visiting noble palaces, such as Palazzo Pitti in Florence, to enjoy amazing chandeliers (without legal protection against copying, such creations—that would become part of our cultural heritage—would likely not be produced being non-efficient goods from an economic standpoint).5 In addition to an ‘incentive mission’, intellectual property law, especially copyright law, has a ‘protective mission’ in relation to cultural heritage. This in Italy has developed through ‘double track’,6 ie two profiles: public and private. The public profile is represented, first of all, by Art. 9 of the Italian Constitution, which expressly protects and enhances the historical and artistic heritage of the nation. There are also European rules, such as Art. 3 of the Treaty on the European Union (TEU) and Art. 167 of the Treaty on the Functioning of the EU (TFEU), that express general principles of conservation and safeguarding of cultural heritage. Italy has also adhered to international conventions (from the convention for the Protection of Cultural Property in the Event of Armed Conflict). This said, in the national legal system (after a number of provisions enacted by the Bourbons in 1775 regarding Pompeii’s archaeological site protection and Croce’s Law (1920) for the landscape’s protection) the first comprehensive law on the protection of cultural heritage was Bottai’s Law of 1939 (1089/1939); after many decades we now have the aforementioned CBC, the principal legislative reference for cultural heritage protection in Italy. 2. The legal framework The protection of art has its main constitutional matrix in Art. 35 of the Italian Constitution. The same rule can be found in the 1942 Italian Civil Code, sub Art. 2060. In addition, the Copyright Act (Law 22 April 1941, No. 633, hereinafter ‘LDA’) and the Italian Civil Code (Arts. 2575–2583) defend the economic interests (Art. 25 LDA) and the moral rights of the author (Arts. 20–23 LDA and Art. 2577 of the Italian Civil Code, which set a perpetual term). Moral rights—the right to reveal and claim authorship, the right to publish, the right to withdraw copies of the work from commerce and the right of integrity in the work—belong to the author (Arts. 20–21 LDA); upon his/her death they are attributed, from generation to generation (perpetually), to his/her descendants as their own right, that is, as a personal right (Art. 23 LDA) to defend the author’s memory and his/her cultural message.7 Shortly after to the ‘Bottai's law', that in 1939 mandates the public enjoyment of cultural heritage (art. 7), one of the first provisions relating to the protection of cultural goods could be found sub art. 23(2), LDA. The provision expresses a sort of partnership between public administrations and citizens as regards cultural heritage protection; it states that if the family’s interest to protect an artwork becomes a public interest to protect a cultural good, the same possibilities provided for within Art. 23 LDA shall be attributed to the Government (originally to the Prime Minister, now the Ministry of Cultural Heritage, which was established in 1975). Relevant EU Directives seem to favour public interest. Dir. 28/2012/EU on the use and protection of orphan works (which could also be part of cultural heritage)8 sacrifices private interests to allow the cultural dissemination of works otherwise locked away. Legislation on orphan works expresses the link between the purpose of dissemination promoted by cultural heritage rules and the limits of copyright. This balancing exercise can be also identified in international conventions, such as the UNIDROIT Convention on stolen or illegally exported cultural goods, signed in Rome in 1995 and which regulates the civil liability in the movement of cultural objects. For example, Art. 4 therein states—albeit implicitly—that compensation for the purchaser of a work stolen also depends on the existence and the knowledge (also potential knowledge) of the rights, both moral and economic, over the cultural good. 3. The struggle between cultural needs and copyright On consideration of the above, the condition whereby a cultural object can be entitled to copyright protection is that it displays a sufficient degree of originality (Art. 1 LDA). If it also has a cultural value for society (Art. 12 CBC), then it can also be protected under the CBC. An artwork can possess both.9 Nevertheless the law (Art. 10(5) CBC) states that an artwork, such as a sculpture, made by a living author up to 50 years from its creation, cannot be regulated by cultural heritage’s rules. Even the artistic buildings – i.e. the architectural works, whose drawings, diagrams, maps, charts, plans and models are copyrighted - have the higher limit of 70 years. So, a sculpture created in 1970 by an artist who passed away in 2010 will receive cultural protection in 2020 (if the sculpture belongs to the building’s façade the ‘cultural protection’ will only begin in 2040). Until 2080 the sculpture will be protected by copyright (Art. 25 LDA), while moral rights will last in perpetuity.10 At the moment, therefore, Italian law shows a potentially dangerous conflict of interests between the author’s economic interests and the public interest, because it is very difficult to say which interest should prevail during the last 20/40 years of copyright protection. Such potential conflict is also between two sets of values: fast and free movement of goods and protection of personal or public interests and rights.11 With regard to movable objects, it would be probably better to extend this privilege to 70 years; in fact, the general prevalence of the public interest over private interests allows us to observe a weakening of the exclusive rights over an artwork. Art. 107(1) CBC, states that the Public Administration could allow the making of copies of ‘cultural objects’ while respecting copyright; this attention to private interests, nonetheless, must be resized because there is a trend to overcome the typical exclusivity of copyright. In fact, according to Art. 107(2), in the conflict between the economic interest to make a cast of a sculpture and the public interest to forbid it, the latter should prevail. This conclusion is true, conversely to the 3D printing reproduction, whereas the egoistic interest not to license an artwork’s copy is often overpowered by the cultural and creative collective interests. From an artwork's photography, in fact, now we can ‘copy’ or ‘create’ ‘a distinguishable variation’ that can be considered a new work.12 Another case in which we can see the ‘favor rei publicae’, that is, the preference for safeguarding public interests, is in respect of the will to retire from commerce (‘ius poenitendi’) or destroy (‘ius abutendi’) an artwork that is also a cultural object; in this case the collective interest to the dissemination of a cultural message would prevail over the author’s moral rights. This trend is also proved by the ‘new’ Art. 15 LDA that, establishing a sort of fair use, allows the playing of music and reading of literary works of others in museums or public libraries, so that they are known and divulged. 4. The armed David case There are cases that show that a cultural object’s reproduction is governed as the reproduction of an artwork. In these cases, Italian public law (CBC) mirrors copyright law (LDA) regulating ‘licences’ and ‘fair use’. Significant in this sense is the ‘armed David case’.13 Michelangelo’s David has been hosted in Galleria dell’Accademia in Florence since 1873 and its material reproduction is subject to a sort of licence from the competent public administration that verifies the compatibility between the stated purpose and the cultural destination of the artwork (Arts. 106–107 CBC); licences are provided subject to the payment of a fee (Art. 108 CBC). In 2014 US company USA ARMALITE did not comply with either rule in its campaign to promote the sale of its weapons by making an outrageous photomontage depicting David armed with a machine gun. Italian government and the Director of the Galleria dell’Accademia immediately reacted against the US company; the case was eventually solved with the withdrawal of the image from the advertising campaign.14 This case may appear trivial, but starting from it, scholars have suggested a strict interpretation of the rules allowing the free reproduction of cultural goods (Art. 107 CBC), considering that relevant rules also apply with respect to digital reproductions. Attempts to exploit the image of David have, nonetheless, continued. On 22 November 2017 the Court of Florence stopped the commercial use (also online) of the image of David by a tour operator who wanted to resell tickets for Galleria dell’Accademia at a price higher than the official one.15 This case also shows how through the unauthorized use of the image of a cultural good it is possible to confuse visitors regarding official channels for purchasing tickets. To avoid enclosing access to and use of cultural heritage, however, in 2014 Art. 108(3) CBC was revised by the ‘Art Bonus Decree' (D.L. 31.5.2014, n. 83), specifying a liberalization or maybe the germ of a new ‘fair use'. Since 2014 it has not been possible to make reproductions of cultural goods for commercial purposes. However, it is possible to freely reproduce a cultural good (for example the image of David for a university lecture) when the purpose is non-commercial, for example for educational or creative use. Art. 108 CBC has been recently further amended (Law 124/2017) to also allow digital reproductions, with own medium, in libraries and archives for cultural aims. In general, the underlying goal is to enhance cultural heritage without impairing creativity, research and education. These reforms have nevertheless been considered potentially risky in that they appear to remove any control over the cultural heritage being reproduced, and do not require any permission or fee. However, guaranteeing freedom of research and dissemination of cultural heritage through a deregulation of scientific research appear laudable goals. 5. A ‘phantasmagorical’ freedom of panorama In view of the rise of digital technologies and the cultural needs of society, copyrights, right to property and personal image rights may form a ‘dam’ that prevent fair use of works. Referring to Art. 107(1) CBC, scholars have included ‘new copyrights’ such as the display of lights (for example on the Ponte Vecchio or Coliseum by night). In Italy, in contrast to many EU countries that have transposed article 5(3(h) of Dir. 2001/29/EC, there is no such thing as freedom of panorama.16 Freedom of panorama is an exception to copyright law, allowing the reproduction of monuments or other buildings permanently located on public display without the need for a licence. In Italy,17 where historically greater attention has been paid to the protection of cultural heritage than is the case elsewhere,18 these artworks are not in the public domain. When invoking the Italian cultural fair use within Art. 108(3) CBC, reference is not strictly to freedom of panorama and the non-commercial nature of the reproduction must be proven. However, overcoming previous opinions,19 it could be stated that de facto there is a non-commercial and non-professional freedom of panorama in Italy; nevertheless, its roots are found in the CBC rather than in the LDA. And it is for this reason that freedom of panorama in Italy can be regarded as ‘phantasmagorical’. One must also consider that when the reproduction of artworks and cultural goods are enclosed in a private area, is always forbidden. In fact, the property right (Art. 832 of the Italian Civil Code) encloses the image rights on all immovable and movable things that are present over the property.20 When they are visible from the public street, however, ownership of that area cannot prevent third-party reproductions, unless there are copyrights on relevant buildings or artworks (Art. 70 LDA). In some cases, furthermore, the privacy right (Art. 9 of the Italian Civil Code) could prevent the making of reproductions because there could be a link between the thing and the person (such as an unfeigned or a disclaimed artwork by its author); in other cases it is the personal right to reproduce the portrait of a relative (Art. 10 of the Italian Civil Code) that prevents the reproduction of a picture or a marble bust. All things considered, the possibility of prohibiting the free reproduction, that is expressed also within Art. 96 LDA, appears as a corollary of ownership entitlement and a projection of a personal right.21 In conclusion, unlike other countries, freedom of panorama can be never fully invoked in Italy, but will be only the smallest freedom of personal cultural use—a sort of free licence of cultural panorama. 6. The agreement logic Technological developments, through a smart use of IPRs, have allowed the opening up of a new legal policy in cultural heritage’s protection and enhancement. We have moved, in fact, from a logic of control to a logic of agreements. This direction was originally given by the Law Decree 31 May 2014, No 83 (‘Art Bonus Decree’) that amended the CBC (Art. 12(3) that modified Arts. 106–109 CBC) increasing the access and enjoyment of cultural goods online. This reform introduced the aforementioned Art. 108(3) CBC. This rule, as well as its recent extension to libraries and archives (Law 124/2017), has encouraged the dissemination of cultural heritage, finally granting a permit to individuals, not only for personal use, but also to reproduce cultural goods freely when there is a goal of valorization thereof. This appears more liberal than a free licence because any request to represent and any control on the use of the cultural good’s image is missing; nevertheless, this allows a rapid dissemination of knowledge, without the spatial and economic restrictions that have been encountered so far. Knowledge can now be represented as a common good. Such evolution is also evident in initiatives like the agreement between the Google Cultural Institute and the world’s most important museums on the creation of an open access database of artworks digitized in HD.22 Public institutions allow the free digital reproduction and Google provides a free universal license23 to enjoy those cultural goods, triggering a process of acquiring cultural awareness that comes out in social and economic benefits (tourism, academic relationships, better protection, education, etc). Over the historical ‘incentive mission’ and the general ‘protective mission’ we can see, in fact, that digital rules can have an educational mission, spreading the artwork’s cultural message throughout the world, the main aim being to democratize access to culture and promote its preservation for future generations.24 Conclusion The regulation of cultural heritage in Italy represents an exception in relation to the concept of property as an absolute right; the CBC is applied both to private owners (Art. 10(3) CBC) and public administrations (Art. 10(1)-(2) CBC)25. This probably signals that we should resort to some other classifications (see the Italian Supreme Court’s judgment on 14 February 2011, No. 366526). For example, in Italy, the Industrial Property Code (CPI) provides, within Art. 19(3), for the possibility of public administrations to obtain trade mark registrations, and also for distinctive graphic features derived from cultural, historical, architectural or environmental heritage of relevant territories. This rule is peculiar because, on the one hand, it expresses the value of the brand as an intangible projection of the cultural goods as public goods and, on the other, binds them to a general interest. Public property appears to prevail over copyright and freedom of panorama, even if nowadays we are witnessing a process of opening up the dialogue for the use of cultural goods. Beyond easy enthusiasms, recent reforms and agreements express political choices that have not led to the introduction of freedom of panorama, but rather respond to economic needs of the state. The risk of the property regime is the prevention of the exercise of fundamental rights (creativity, education, communication, teaching) that today are particularly strong; the risk of an uncontrolled freedom of panorama could be the commercial, selfish, use of common goods, a return of property through the back door and a real ‘tragedy of the commons’.27 The route towards a new legal management model of cultural heritage, alternative to proprietary or anti-ownership logic, is open. It will probably be based increasingly on the agreement between, public or private, cultural goods owners, copyright holders and other stakeholders (such as foundations or social media content providers). As expressed by the eminent jurist and philosopher Hans George Gadamer, following the teaching of Hegel and Heidegger on the relationship between art and gnoseology, culture is the only good of mankind that, when shared, instead of diminishing, becomes more abundant.28 Footnotes 1 MS Giannini, I beni culturali, in Riv. trim. dir. pubbl., 1976, p. 3 ff. See also G. Morbidelli, Il valore immateriale dei beni culturali, in Aedon, 1, 2014. 2 Cultural goods have a double statute, material and immaterial; unlike intellectual property, however, underlying rights do not subsist if the ‘cultural object’, to which they are connected, are destroyed: see M. Are, ‘Beni immateriali’, in Enc. dir., V (Milan, 1959), p. 251 ff. 3 A. Gentili, ‘Quale modello giuridico per i beni culturali?’, in G. Conte and S. Landini (eds), Principi, Regole, Interpretazione. Contratti e Obbligazioni, Famiglie e Successioni. Scritti in onore di Giovanni Furgiuele (Mantua, 2017), 1, p. 219. 4 For a historical overview see P. O. Long, Openess, Screcy, Authorship. Technical Arts and the Culture of Knowledge from Antiquity to the Reinassance (Baltimore, 2001), pp. 88–101. 5 W. Fisher, ‘Theories of Intellectual Property’ in R. Munzer (ed.), New Essays in the Legal and Political Theory of Property (Cambridge, MA, 2001), pp. 168, 194, 198. 6 A. Pojaghi, ‘Beni culturali e diritto d’autore’, in Dir. Aut. (Milan, 2014), p. 151. 7 Referring to P. Greco and P. Vercellone, I diritti sulle opere dell'ingegno, in Trattato Vassalli, XI, 3 (Turin, 1974), p. 345 ss. See contra A. Zaccaria, Diritti extrapatrimoniali e successione (Padua, 1988), p. 180, according to whom it would be a mortis causa right. 8 M. L. Montagnani, Le utilizzazioni delle opere orfane, in AIDA, 2013, p. 162. 9 Pojaghi, ‘Beni culturali e diritto d’autore’, pp. 149–50. 10 Ibid, p. 152. 11 R. Barberio, ‘Il regime e le forme di circolazione e di controllo dell’opera d’arte tra diritto d’autore e tutela del bene culturale’, in L’arbitrato ed il mercato delle opere d’arte (Reggio Calabria, 2011), p. 91 ff. 12 In the USA see Bridgeman Art Library Ltd. v Corel Corp., 36 F. Supp 2d 191, 196 (S.D.N.Y. 1999). 13 L. Casini, ‘“Noli me tangere”: i beni culturali tra materialità e immaterialità’, Aedon, 1, 2014. 14 The then Minister of Cultural Heritage and Tourism—Dario Franceschini—and the Director of Florence museums—Cristina Acidini—publicly stated that the Government would sue the company and that the museum would warn it; following these statements the company removed the image from its website. See http://www.lanazione.it/firenze/cronaca/2014/03/09/1036343-david-armato-franceschini.shtml (accessed 15 January 2018). 15 See http://www.lanazione.it/firenze/cronaca/david-michelangelo-ordinanza-immagine-1.3556006 (accessed 15 January 2018). A similar provision, soon after, was issued by the Court of Palermo to preserve the image of Massimo Theatre from unathorized exploitation by a local bank: see http://palermo.gds.it/2017/12/03/vietato-utilizzare-le-foto-del-teatro-massimo-per-fini-commerciali_767638/ (accessed 15 January 2018). 16 A. Spedicato, Piccola guida alla tutela della fotografia e dell’opera fotografica (Padua, 2012), p. 48. M. Dulong de Rosnay and P. C. Langlais, ‘Public Artworks and the Freedom of Panorama Controversy: a Case of Wikimedia Influence’, Internet Policy Review, 6, 1 (2017). 17 G. Cavagna di Gualdana, ‘Freedom of Panorama in Italy: Does it Exist?’, IPKat, 14 July 2017. Available at: http://ipkitten.blogspot.it/2017/07/freedom-of-panorama-in-italy-does-it.html (accessed 15 January 2018). 18 F. Morando, Diritti su i beni culturali e licenze libere, in Quaderni del Centro Studi Magna Grecia, 2011, reports how in the eighteenth century the Popes prohibited the reproduction of archeological remains. 19 However, we must consider that, in the response given on 5 February 2008 to the relevant parliamentary hearing, the MIBACT responded that ‘in Italy, since there is no specific legislation in place, it must be lawful to photograph freely all visible works, from the new building in the Ara Pacis site to the Coliseum, for any purpose, including commercial, with the exception that, in modifying or altering the object of the picture, this is offended in its decorum and in the values that it expresses.’ Nevertheless, this position appears incompatible with the CBC’s aims of protection and exploitation (Art. 107 CBC). In fact, the new art. 108 CBC—even if deleted the prior authorization—has imposed a requirement that the reproduction is for non-commercial purposes. This, even just potential, remains subject to a licence. 20 G. Resta, ‘Chi è proprietario delle Piramidi? L’immagine dei beni tra property e commons’, in Politica del Diritto, n. 4, 4 December 2009, pp. 582 and p. 593. 21 A. De Vita, sub art. 10, in AA. VV., Delle persone fisiche, in Comm. Cod. Civ. Scialoja-Branca (Bologna-Rome, 1988), p. 539, text and footnote 20. 22 See, eg, https://www.google.com/culturalinstitute/beta/partner/uffizi-gallery?hl=it (accessed 15 January 2018). 23 There is a free app on Itunes (https://itunes.apple.com/it/app/google-arts-culture/id1050970557?mt=8) and Google Play (https://play.google.com/store/apps/details?id=com.google.android.apps.cultural&hl=it) (both accessed 15 January 2018). 24 L. Sanger, ‘Who Says We Know: On the New Politics of Knowledge’, Edge: The Third Culture, available at: https://www.edge.org/3rd_culture/sanger07/sanger07_index.html (accessed 15 January 2018). 25 The private good becomes cultural by virtue of an administrative measure which ensures its ‘cultural’ quality (art. 13-15 CBC), this one must be notified to the owner and has its effect from the date of notification. Consequently there is a compression to the typical exclusive enjoyment on the good. See T. Autieri, Commentario al codice dei beni culturali e del paesaggio (Rimini, 2007), p. 161 ss. 26 In Giur. It., 2011, p. 12, with note of C. M. Cascione, Le Sezioni unite oltre il codice civile. Per un ripensamento della categoria dei beni pubblici, p. 2506 ss. 27 G. Hardin, ‘The Tragedy of the Commons’, Science, 162 (1968), 1243–8. 28 H. G. Gadamer, Truth and Method (London, 1989), passim. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of Intellectual Property Law & PracticeOxford University Press

Published: Sep 1, 2018

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