Culture Commission passes resolution for free reproduction of cultural property

The Culture Committee of the Chamber of Deputies yesterday approved an important bipartisan measure, presented by Gianluca Vacca (5-Star Movement), Daniele Belotti (League), Flavia Piccoli Nardelli (Pd), Federico Mollicone (Fratelli d’Italia) and Valentina Aprea (Forza Italia) in favor of the free reproduction of images of public cultural property. The premise from which the five parliamentarians start is that culture is one of the main engines of development for our country: “it is therefore essential,” reads the text of the united resolution on the digital reproduction of cultural goods, “to promote a reflection for which it is necessary to start again from culture understood as a precious common good and as an opportunity for sharing.” The idea is that Italy should play a central role in ensuring the right balance between the legal positions of rights holders and those of the community, as users of culture. European Union Directive 2019/790 calls on member states to consider the rapid technological developments that continue to transform the way works and other materials are created, produced, distributed, and exploited, while new business models and actors are constantly emerging, in order to adapt relevant legislation to future needs so as not to limit technological evolution; consequently, the context of the transposition of the aforementioned European legislation represents an opportunity to respond to and clarify, within our legal system, the scope of the instances aimed at the recognition of the faculty of free reproduction of images of cultural property in the public domain.

And again, at the European level, Article 14 of Directive 2019/790 provides that: “Member States shall ensure that, upon the expiration of the term of protection of a work of the visual arts, the material resulting from an act of reproduction of such work shall not be subject to copyright or related rights, unless the material resulting from such act of reproduction is original in the sense that it constitutes the author’s own intellectual creation” in order to facilitate the promotion and awareness of reproductions of the work of the visual arts upon the expiration of the protection granted by copyright law. The transposition of this article makes it necessary to consider the appropriateness of coordinating this rule with Article 108 of the Code of Cultural Heritage and Landscape, which restricts the reuse for commercial purposes of reproductions of cultural property albeit in the public domain, and according to the resolution, “it is therefore necessary to make a commitment of the Government aimed at supporting a digitization program and assessing the possible ways of disseminating digital reproductions of cultural heritage.”

“The possibility of disseminating reproductions of public and public domain cultural heritage, through the web,” the resolution goes on to say, “represents a fundamental lever for strengthening the policies of territorial enhancement and protection and for the promotion of Italy’s image abroad, also in terms of tourism, if we consider that a photograph of a cultural asset on Wikipedia the free encyclopedia translated into more than 280 languages. published under a Creative Commons Share Alike license (a copyright license that allows any user to use, modify, and share the licensed work having as a limitation, at most, conditions that impose recognizing the attribution of the work and sharing it in the same way) becomes viral and circulates worldwide, with millions of views per day, as widely attested.” The resolution’s drafters note, however, that “such dissemination is still scarce and ineffective when compared to the potential of the artistic, historical and architectural beauty of our country,” and that “there is a growing number of European countries that make explicit in their legislation exceptions to copyright law to allow anyone to reproduce buildings and works visible from the public street, such as the recent cases in Belgium and France and in the process of the new European copyright directive.”

What’s more, the European Parliament and the European Commission (COM(2016) 592 final, September 14, 2016) have pointed to “freedom of panorama” as an important exception to be harmonized and thus extended at the European level, but in Italy, at the moment, although several legislative instruments have already been proposed, there is no such exception to copyright law, and in the daily practice of ministerial offices, the provisions of Legislative Decree No. 42 of January 22, 2004, regarding the dissemination of images of public cultural property and public domain are not always implemented in a homogeneous manner. Still, expanding the sphere of free access and reuse of digitized cultural heritage for the purposes of protection, risk prevention, editorial promotion, communication, education, development of fruition to enhance processes of longlife learning, gamification, merchandising, and tourism promotion has been recognized as a priority in the use of the Recovery Fund, as stated in the opinion approved by the VII Commission of the Chamber of Deputies on September 29, 2020 on the outline of the report to the Assembly on priorities in the use of the Recovery Fund.

Then there is also the economic issue: during Icom Italia ’s informal hearing at the Senate’s 14th Permanent Commission, a study was presented where it was possible to show that revenues from the sale of images on the web are lower than their operating costs, in contrast to the benefits for cultural institutions in terms of visibility and, of course, for the community of users in terms of opportunities for cultural, social and economic growth. It should then be considered that for cultural institutions that have introduced a regime of free reuse of images of their collections, it is possible to register benefits in terms of the enhancement of the assets and their dissemination and knowledge, against the modest amount of income from reproduction fees. In addition, the online enhancement initiatives of collections or historical sources promoted by museums, archives and libraries make it increasingly appropriate to have a precise understanding of the opportunities and limitations related to the reuse of images both for the promoting institution and, even more so, for the user-user, putting an end to a state of uncertainty about the legitimacy of the uses of reproductions of cultural heritage.

For these reasons, the resolution commits the government “to take initiatives to promote, starting with the transposition of Directive 2019/790/EU, a systematization and modernization of the legal framework of copyright and related rights, in order to remove the so-called related rights in the case of reproduction of works of the visual arts in the public domain that do not have an original character, as provided for in Article 14 of EU Directive 790/2019.” “to take initiatives to adapt and complete the current regulatory framework, safeguarding a high level of protection of copyright and related rights in compliance with the needs of protection of cultural heritage, guaranteeing the right to free manifestation of thought and, at the same time, allowing an adequate enhancement of cultural heritage, including through the use of new technologies, so as to continue on the path of liberalization of the reproduction of cultural heritage and dissemination of images, initiated with the amendment of Article 108 of the Code of Cultural Heritage and Landscape.” “to address therefore a coordination between the discipline of copyright and that of reproductions, understood not only from a point of view of heritage protection, but as a promotion of the development of culture”; “to adopt initiatives, including regulatory ones, aimed at encouraging the free reuse and free dissemination of images of public cultural property visible from the public street, for any purpose, in compliance with copyright law (even providing for forms of exceptions, such as the ’freedom of tempered panorama’).”

Finally, the resolution also commits the government “to provide guidance, including through the institution of the Digital Library, to the central and peripheral institutes of the Ministry of Culture on how to disseminate images of public cultural property online; to take initiatives aimed at establishing a working group, open to the participation of experts in the field and the most representative associations of the cultural heritage professions and the main stakeholders, in order to propose a reformulation of Article 87 of Law April 22, 1941, no. 633 (”protection of copyright and other rights related to its exercise“), and Articles 107 and 108 of Legislative Decree No. 42 of January 22, 2004 (”code of cultural heritage and landscape“), which is in line with the provisions of Article 14 of European Directive 2019/790/EU. This working group will also have the task of assessing the cultural and economic impact underlying the possible application of the free reuse of cultural heritage images and to provide information support to the central and peripheral institutes of the Ministry of Culture; to adopt initiatives to enhance the protection of the role of creatives and authors, considering their centrality in the processes of cultural creation and authorship in our country, starting from the emergency phase related to the epidemic during which these professional figures have particularly suffered first the blocking of cultural events and consequently a slow and undersized restart.”

Image: Montecitorio Palace. Ph. Credit Manfred Heyde.

Culture Commission passes resolution for free reproduction of cultural property

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