Recent Italian courts cases concerning the reproduction of works held by Italian cultural heritage institutions ignore Article 14 of the CDSM Directive. Instead of following the intent of the directive to ensure that faithful reproductions of public domain works remain in the public domain, the Italian lawmaker extends new exclusive rights over public domain works based on national heritage laws. Responding to this alarming development, COMMUNIA commissioned an independent expert opinion from researchers Giulia Dore (University of Trento) and Giulia Priora (NOVA School of Law in Lisbon).
Italy’s proprietary and paternalistic approach to cultural heritage is enshrined in the Italian Code of Cultural Heritage and Landscape, which extends exclusive rights to the reproduction of public domain works in collections held by Italian heritage institutions and mandates the institutions to determine what uses are and aren’t compatible with the work’s “original intent”. In addition to the protection offered by the Code, Italian courts have also been recognizing personality rights to these works, which restricts the use of these works even further.
In this way, the Italian law-giver engineers a “pseudo-copyright”, allowing the courts to bypass the safeguards for the public domain put in place by the EU in the CDSM Directive. This independent expert opinion analyzes the curious Italian transposition of the CDSM Directive which allows for the courts to ignore the Directive in cases against Ravensburger and GQ Magazine.
The authors urge the EU legislator “to lay down clear-cut regulatory clarifications and balanced and systematic legal interpretations, to prevent any potential legal inconsistencies in the interplay between copyright and cultural heritage”. They further urge member states to interpret national norms systematically and holistically in order to comply with EU law and its intent to protect the public domain from such conservative proprietary tendencies.
The full study inquiring about the compatibility of the Italian legal system with EU law at the intersection of cultural heritage and public domain artworks is available here.
