Paying for cultural heritage images: what model should be referred to?

The enactment of the “Tarasco” decree(call it by its name) and the almost simultaneous court rulings in Florence have suddenly reawakened the debate on the management of reproductions of public cultural property. Decree and rulings have in fact marked a sudden departure from the direction imparted in recent years by the Ministry of Culture toward tempered liberalization, recognizable both in the changes to Article 108 of the Cultural Heritage Code and, even more so, in the contents of the National Plan for Digitization.

Decree and rulings have been criticized in particular on three levels: the first for wanting to consider images of cultural property exclusively as a revenue earner for the state, resurrecting a “shopkeeper’s” approach to cultural property policies that we imagined was now dead and buried; the second for the confusion being made between cultural property understood as “things” - protected by DL 42/2004 - and their images - subject, only if they refer to assets of public entities and in the case of for-profit uses, simply to an optionally onerous concession regime -; the third for extending to cultural assets a protection hitherto provided only for the identity of persons.

Many legal experts have spoken on the reasons for the decree and the rulings, and they have basically merely told us something that, in fact, we already knew: namely, that these are in principle legitimate measures (although on some points, as we shall illustrate, we are left with doubts). However, it would be equally legitimate to ask how appropriate such a turnaround is, and thus not so much whether the decree and the recent rulings are really a necessary application of the law, but whether there are other interpretations, more in keeping with constitutional principles. I am referring, of course, to Articles 9 (promotion of culture and research), 21 (freedom of thought and expression) and 33 (freedom of research and teaching); let us also consider Article 97 (balance of public budgets and good performance of the administration). Well, in what direction did the interpretation behind the Tarasco Decree take us?

1. For a publication of images of state cultural property you always pay, anyway and dearly: for the decree there is no publication that is not considered non-profit, including Open access. As a result, most of Italy’s cultural assets are in danger of no longer being studied, since their images will not be available to those who cannot afford significant outlays. We are not talking about a few works of great media impact, but thousands of miles of archival documents and bibliographic resources, as well as an incalculable number of artworks and archaeological finds mostly stored in warehouses. This means “taxing” research and depressing the appreciation of cultural heritage (“Who are you? A picture? A florin!”).

2. The biggest costs, however, are the bureaucratic ones for the management of the concession practices that have been reintroduced, which for the public administration are higher than the revenues, thus a damage to budgets: this is what the Court of Auditors says (Resolution No. 50/2022/G). This is also a direct cost for the citizen, who is forced, in addition to paying jointly and severally, to commit his or her time in following these practices and waiting for their management time. All of this violates the principles of balanced budgets and good administration dear to the author of the decree.

3. It reintroduces an illegitimate form of preventive control over the use of images of cultural property to assess a compliance with decorum, with a forced interpretation of Art. 20 of DL 42/2004 - which concerns interventions on the property, not its image -, tramples on the freedom of dissemination of images for purposes other than profit already sanctioned in 2014 with the introduction of Article 108 paragraph 3 bis in the text of the code. Doing so imposes a true form of censorship in defiance of freedom of research, thought and expression. Totally out of place seems in this regard the reference to an alleged right to the collective identity of citizens, invoked by the Florence rulings.

The wave of protests that has swept over the decree, however, may have borne some fruit: it seems that the minister, probably touched by the criticism coming from all sides, has ordered the decree’s author to correct the mess, to the point that today a new draft is already circulating, kept strictly secret, however, instead of being the subject of public consultation (as was the case with the National Digitization Plan). From the leaked rumors, it seems that the new draft would make periodicals classified as scientific by ANVUR free of charge (a classification, moreover, whose sole purpose is to measure the output of universities, and which certainly has no scientific basis): a step forward from before but ten backward from the NDP, which provided for free access for the entire publishing sector. Well: it would be appropriate for the universities to reject as a “chosen pact” such a proposal of gratuitousness-suggested again by Tarasco-by openly speaking out against this “corporate” solution with a reminder of the constitutional values of freedom of research and expression and promotion of culture and research that should be founding principles of their action.

Finally, an observation that is also meant to be an appeal: the decree applies only to state property. This means that other territorial public entities remain free to determine their own fees, and wanting even to zero them within the framework of the Cultural Heritage Code and Directive 2019/1089 (EU), which while it is true that on the one hand excludes from theapplication of reproductions of goods from museums, archives and libraries, on the other hand specifies that "upper limits for fees [...] shall be without prejudice to the right of Member States to impose lower costs or none at all." Let the local authorities, then, set an example for the state by introducing by regulation those principles of Open Access that the Ministry persists in denying to its own institutions, but not to its own assets, given that the Egyptian Museum of Turin is the first in Italy to have released online images of state assets that can be freely reused even for commercial purposes!

In conclusion, it is necessary to state honestly to which economic and social model one intends to refer with such short-sighted policies. To a model that is ostensibly liberalist - but in reality backwardly statist and in the end simply shopkeeping - or to a model in which cultural heritage is considered to belong to the Republic, thus primarily to citizens, and their images to be an instrument of cultural and social promotion, within a system of free circulation of ideas and manifestation of thought?

This contribution was originally published in No. 20 of our print magazine Finestre Sull’Arte on paper. Click here to subscribe.

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