Last Friday, news broke of the order taken by the court of first instance of Venice on a precautionary judgement served by Gallerie dell’Accademia di Venezia, a public museum under the Italian Ministry of Culture. At stake: a Ravensburger puzzle representing the famous 1490s drawing Vitruvian Man by Italian Renaissance genius Leonardo da Vinci.
The defendants are the world-renowned German toy making companies Ravensburger AG, Ravensburger Verlag GMBH and their Italian office represented by Ravensburger S.r.l.. They were brought to court for using the image of the widely popular Public Domain drawing to produce and sell puzzles without authorization or payment of a fee to the Gallerie dell’Accademia di Venezia, where the physical artwork is kept.
A puzzling question
Let’s pause here. Authorization, fee, Public Domain work… These don’t add up. The Public Domain is made up of works that are out of copyright, free to use by anyone for any purpose. The Public Domain is the treasure trove of creative works that inspires us all and upon which all creativity depends. In fact, protecting the Public Domain is so important that in 2019 the European legislator made it explicit in Article 14 of the European Directive on Copyright in the Digital Single Market (CDSM) that non-original reproductions of works in the Public Domain must stay in the Public Domain — no copyright protection arises from the simple act of reproduction of public domain works, e.g. through digitisation.
So, how come the Gallerie could prevent Ravensburger from using an image of the Public Domain Vitruvian Man on its puzzles? How come the court:
- prohibited the defendants from using for commercial purposes the image of the work “Vitruvian Man” by Leonardo da Vinci and its name, in any form and any product and/or instrument, including digital ones, on their websites and on all other websites and social networks under their control;
- ordered the defendants to pay a penalty of € 1.500 to the Gallerie dell’Accademia di Venezia for each day of delay in the execution of the precautionary order;
- ordered the publication of the order in extracts and/or summaries of its contents by the Gallerie dell’Accademia and at the expense of the defendants in two national daily newspapers and in two local daily newspapers?
The answer: The Italian Cultural Heritage Code
The answer lies with a particular piece of Italian law: the Italian Cultural Heritage Code (Legislative Decree n. 42/2014). According to the Italian Cultural Heritage Code and relevant case law, faithful digital reproductions of works of cultural heritage — including works in the Public Domain — can only be used for commercial purposes against authorization and payment of a fee. Importantly though, the decision to require authorization and claim payment is left to the discretion of each cultural institution (see articles 107 and 108). In practice, this means that cultural institutions have the option to allow users to reproduce and reuse faithful digital reproductions of Public Domain works for free, including for commercial uses. This flexibility is fundamental for institutions to support open access to cultural heritage.
Incompatible with Article 14 CDSM
Be that as it may, the Cultural Heritage Code’s “authorization+fee” system generally deals a severe blow to the Public Domain in Italy, and alarmingly, beyond its national borders — Creative Commons calls attention to this in its Global Open Culture Call to Action to Policymakers. It is in fact completely at odds with EU legislation protecting the Public Domain: Article 32, quater of the Italian Copyright law (Law n. 633 of April 22nd, 1941) clearly conflicts with the intent of the European legislator. That is because Article 32, quater transposes Article 14 CDSM but limits its effect to the application of the Italian Cultural Heritage Code. We at Communia have strong reasons to believe this is incompatible with the letter and the spirit of Article 14.
Even in cases where European legislation does not in itself have direct effects or applicability in the national legal system of the Member States, it must always represent an indispensable guiding parameter for national courts, which are called upon to interpret national law in the light of European legislation (i.e., the obligation to interpret it in conformity). Further, there is a general prohibition for Member States to allow a national rule to prevail over a contrary EU rule, without making a distinction between earlier and later national law.
Not the only case
The Vitruvian Man is sadly not an isolated case. Just a few months ago, we commented on the one opposing the Uffizi Museum to Jean Paul Gaultier, where the defendant, a French fashion designer, used images of another Renaissance masterpiece, Botticelli’s Birth of Venus. These cases are bound to leave wreckage in their wake: great uncertainty around the use of cultural heritage across the entire single market, hampered creativity, stifled European entrepreneurship, reduced economic opportunities, and a diminished, impoverished Public Domain. To address these issues, we hope the European Court of Justice will soon have the opportunity to clarify that the Public Domain must not be restricted, a fortiori by rules outside of copyright and related rights, which compromise the European legislator’s clear intent to uphold the Public Domain.
Quite curiously, even though the precautionary order should be executed with specific regard to the Vetruvian Man’s puzzle, it is interesting to see that on the defendant’s website one can still buy puzzles reproducing “La Gioconda” (the Mona Lisa) and “The Last Supper” by Leondardo da Vinci; “The Kiss” by Hayez and another “The Kiss” by Klimt and many other monuments, works of art, as well as images of nature and animals.
Is legal action the right way to deal with this issue? Court proceedings are expensive and will not change reality. A different approach (compatible with an open access policy and the protection of the Public Domain) that liberalises the faithful reproduction of cultural heritage in the Public Domain would be more supportive of tourism, the creative industry and “the benefit of civil society in general. Other than being compatible with the principle stated by Art. 14 of the CDSM Directive.