A photography of two statues of lions announcing the COMMUNIA Salon on the hollowing of the Public Domain.

Video recording of COMMUNIA Salon: The hollowing of the Public Domain

On June 18th, we hosted our first online salon in 2024 on the hollowing out of the Public Domain through cultural heritage laws with a particular focus on Italy.

In recent years there have been a number of problematic court cases around the commercial reuse of Public Domain works held by Italian cultural heritage institutions. In response, we recently published an independent expert opinion raising questions about the compatibility of the Italian approach of cultural heritage protection with EU law, including Art. 14 of the DSM Directive.

For this COMMUNIA Salon, we invited the authors of the expert opinion, Giulia Dore and Giulia Priora to a panel discussion, moderated by Brigitte Vézina, in order to elaborate on, and discuss their findings. They were joined by Andrea Wallace to provide some further insight into the ideas behind, and implementation of Article 14 of the DSM Directive.

To kick off the discussions, Andrea Wallace (Associate Professor, University of Exeter) discussed the importance of Article 14 of the DSM Directive, noting that the recognition that faithful reproductions (such as digitization) of works in the public domain are to remain in the public domain follows more than a decade of policy work at EU level. The rationale of the provision is to ensure that the idea behind copyright is upheld: a period of exclusivity to reward creativity and creation, but then opening up a work for society to enjoy free of charge. As such, Article 14 sends a “clear message, both to member states but also to institutions” that related rights cannot be used to perpetually extend protection. Nevertheless, some member states continue to restrict access to works in the public domain (see Andrea’s survey for Europeana for more detail).

Following this presentation, Giulia Priora (Assistant Professor, NOVA School of Law in Lisbon) took the stage to showcase the Italian implementation of Article 14 of the DSM Directive, explaining how it creates a carve out for works that fall within the scope of the Italian Cultural Heritage Code, which is at odds with the principles of Article 14 outlined in its recital. She concluded that the Italian implementation is not fully compliant with the obligation of result imposed by the DSM Directive, as it fails to transpose Article 14 in a way that is “achieving the objectives set by the European Union legislator.” This creates significant obstacles to access cultural heritage, fragments the legal landscape that the EU lawmaker tried to harmonize, and poses a constitutional problem both at national and EU level by jeopardizing the balance between copyright and fundamental rights.

Finally, Giulia Dore (Assistant Professor, University of Trento) outlined the contents of the Italian Cultural Heritage code, explaining how it opened the door to the creation of a pseudo or para-copyright by national courts. She explained how national courts are cherry-picking norms and the impact this case law can have on the use of cultural heritage material, before outlining a number of ways to remedy the situation at EU level and prevent the abuse of similar national legislation by other member states.

Following the presentations, the Q&A session, moderated by Brigitte Vézina (Director of Policy and Open Culture, Creative Commons), addressed several questions from the audience, such as whether protection of works might be warranted to uphold certain cultural values and whether the cultural heritage lawsuits in Italy had made discussions around the topic more mainstream.

If you are curious on how to move forward and address the issue of cultural heritage laws to protect the Public Domain from their encroachment, you can find COMMUNIA’s recommendations in our Policy paper #20 on the right to use Public Domain heritage.

Cropped etching of Minerva with a helmet, featuring event title and information.
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