Reproduction of cultural heritage images: between open access and forms of control

Images of cultural heritage are an incredible resource for access to culture and the dissemination of knowledge of Italy’s cultural heritage around the world. Although technological development and the spread of digital media have made access to digital cultural heritage as easy as possible, in Italy there still remain many obstacles to the circulation of images of public cultural heritage both in national legislation and in court rulings. While, at the international level, we are witnessing the development of a solid movement working for the diffusion of open access policies, the Italian context, with rare exceptions (such as the Egyptian Museum Foundation of Turin), remains anchored to conservative approaches aimed at limiting the possibilities of use of cultural heritage images.

The Italian debate on the use of faithful reproductions of cultural property has returned to the spotlight over the past few months, following a number of judicial pronouncements and the controversy that followed the Ministry of Culture’s adoption of Decree No. 161/2023 (“Guidelines for the determination of the minimum amounts of fees and royalties for the concession of use of property in consignment to state institutes and places of culture”).

The national courts, in fact, affirmed the existence of a right to the image of cultural property, basing on it the necessary prior application for authorization and payment of a fee for the use of the image. According to this perspective, prior control by the public administration would also be indispensable in the case of reuse of the image of cultural property for non-commercial uses. These pronouncements have affirmed the existence of a “right to the image” for cultural heritage, envisaging the addition of an additional level of protection to that of copyright, superimposing publicistic norms such as the Cultural Heritage Code (Legislative Decree of January 22, 2004, no. 42) and, in particular, Articles 107 and 108 thereof, to typically private norms, such as Article 10 of the Civil Code (which protects precisely the right to the image of persons).

In the jurisprudential reasoning, a right to the image is recognized which, unlike copyright, is unlimited in time and which generates, therefore, a kind of permanent privative right in favor of the State, enshrined in Articles 107 and 108 of the Cultural Heritage and Landscape Code.

In the pronouncements of the Italian courts, the right to the image, is referred to in relation to the need to protect the “decorum” of the cultural property in addition to the limits related to the for-profit use of the property itself, raising several interpretative doubts and critical profiles. Article 108 of the Cultural Heritage Code allows the use and dissemination of reproductions of cultural heritage, only for purposes other than for profit, in the context of activities that, theoretically, could already result in a “debasement” of the same (think, for example, of the dissemination in non-commercial channels of caricature reworkings of reproductions of cultural assets in the name of the free manifestation of thought or creative expression referred to by the norm). It cannot be argued, therefore, that the problem of decorum is superimposable tout court on the commercial use of images, almost as if the use of an image becomes immune to the problem of decorum from the moment the fee is paid to the administration.

The question also arises as to how it is possible to define a parameter for assessing the compatibility of the use of the image with the requirements of the protection of decorum, and therefore how can the individual cultural institution, responsible for issuing the authorization, concretely assess whether the same is or is not respected, with all the risks of an uneven and differentiated application of these criteria on the territory.

In this sense, the Open to Wonder initiative, with which the Ministry of Tourism used the image of Botticelli’s Venus for a promotional campaign, criticized on several fronts for its unhappy outcomes, yet falling within the hypotheses allowed by the norm, is also part of the debate.

In essence, the right to the image ends up becoming a pretext to limit the circulation of reproductions of cultural goods in an attempt to increase their profitability according to an approach that is now obsolete and contrary to the evidence (as pointed out by the Court of Auditors itself in its Deliberation of October 12, 2022, no. 50/2022/G), as well as in open opposition to the policies and practices of open access that are widespread throughout the world, and in contrast to cultural heritage research activities, which are often disseminated in commercial channels as part of publishing products.

In this sense, Decree 161/2023 also returns to using the argument of decorum to subject any form of use of images to authorization (Art. 2), in open violation of Art. 108 c. 3-bis of the Cultural Heritage Code, which, since 2014, makes the dissemination of reproductions free for purposes other than profit. The Decree, moreover, in defining minimum fees for the use of images of cultural property, introduces an unnecessarily cumbersome and complex calculation system that puts users and cultural institutions called upon to adopt it in difficulty, confusing the channels of acquisition of images with the ways in which they can be reused. Unlike the PND, moreover, the decree under consideration, was not the result of a dialogue with professionals and associations in the sector, which highlighted its serious criticalities, clamoring for a resumption of dialogue on the point. Dialogue that so far, unfortunately, has not been answered by the Ministry.

The Decree, moreover, does not consider the underlying complexity of the use of images of cultural heritage, which is often part of a context in which the modalities of use, safeguarded by Article 108 of the Cultural Heritage Code, overlap with economically relevant profiles, making the presence or absence of a profit-making purpose under the sector’s regulations not easy to interpret.

What emerges is a profound contradiction in the Italian legal framework, which, moreover, in a now changed context, does not take into account the enormous and, by now, inescapable potential of the digital so that the right of individuals to “benefit from and contribute to the enrichment of cultural heritage” can be effectively realized as affirmed by the Faro Convention (Art. 4).

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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