This post sums up the findings of Sappa, C., Bossi, L. Postcards from Italy – The Art of Controlling Images of Cultural Goods Better Than Copyright Could.

Cultural goods have never been as much under the spotlight as in recent times. The main reason for all this attention is that beyond their role in education and cultural development, they have also turned into commodities, and they – and their images – are therefore perceived as a tool for enhancing freedom to conduct a business. This happened mainly because of the fast-paced technological evolution that affects the consumption of digital content and causes an increased need of data and images.

According to constitutional principles, States must ensure the protection, preservation, and valorization of cultural goods. Within this framework, there is a delicate balance between protection and access to cultural assets. Access to the tangible cultural good, for several reasons, may be replaced with access to the related image. For this purpose, digital reproductions of cultural goods are produced and here again, a tension exists between their protection and free circulation. Access to cultural goods and to the related images is fundamental in a free and democratic society. From the perspective of knowledge dissemination, there is a strong public interest in producing copies of cultural goods and letting them circulate widely. From a different perspective that takes into account high costs of conservation and preservation and therefore the need to identify self-funding mechanisms, as well as commercial interests in the downstream markets, it is possible to note how legal instruments have been used by Cultural Heritage Institutions (CHIs) to control the production and exploitation of images of cultural goods.

Italian rules on cultural heritage are an example of how legal instruments have been introduced to control the market related to images of cultural goods. A legal analysis on these rules and on the recent national case law can be studied to understand whether such a system finds a reasonable legal justification, and in particular whether it complies with higher fundamental principles and EU rules.

The relevant rules in the Italian Code on Cultural Goods and Landscape in a nutshell.

The Italian Code on Cultural Goods and Landscape (ICCGL) regulates cultural goods located on Italian territory that do not fall under the scope of a different national jurisdiction. In accordance with international legal instruments, this text defines cultural goods as immovable and movable goods with historical, artistic, archaeological, anthropological, ethnographic, archival interest, and therefore they have a civilization-related value.

Under Articles 106–108 ICCGL, a reproduction of a cultural good is possible upon two conditions, i.e. the authorization to the use of the concerned administrative authority that is responsible for managing the good, as well as the payment of a fee, except for the case (introduced at Article 108.3 bis 2 ICCGL) in which lawfully acquired reproductions circulate for non-commercial purposes. As for the authorization, the authority grants it after having assessed the compatibility of the use with the historical and artistic character of the selected good. This assessment is done under the full discretion of the authority and no opposition to the decision taken is possible. As for the charging, for three decades, different CHIs have been able to impose different fees. In April 2023, then changed in May 2023 and in March 2024, a Ministerial Decree introduced a tariff scheme to drive CHIs in their decisions and harmonize the practices. These texts however still leave some room for discretion to individual bodies that want to impose higher prices and do not entirely eliminate the risk of a non-equivalent treatment for potential users. All this means that a very substantial power is given to CHIs that grant (or reject) authorizations and, broadly speaking, that a cost does exist on re-users of cultural goods’ images.

A picture of the Italian case law on cultural goods’ images.

In the last decade, Articles 106–108 ICCGL were enforced via a few decisions. The plaintiff (the Italian Ministry of Culture or the CHI in possession of the cultural good) generally requests both injunctions and damages before the court of the place where the reproduced cultural good is located. The trend followed by the case law reflects a progressive intensification of a control-based approach, initially founded on (public) property-based rules, and then grounded on both the latter and personality rights.

More precisely:

The first cases date to the late 2000s. Two decisions of the Supreme Court and the Court of First Instance of Milan (Cass. Civ. No. 4213/2012, on photographs depicting a Roman catacomb published in some volumes; Trib. Milan No. 5417/2008, on unauthorized use of commissioned photographs of watercolor paintings by the 16th century) rejected the claims of violation of Articles 106–108 ICCGL.

Between 2013 and 2016, Italian courts did not recognize infringing reproductions in the reconstruction of an archaeological artefact (Cass. Civ. No. 9757/2013), nor concrete harm in the low-resolution reproduction of drawings ascribed to Caravaggio in an informative book (Trib. Milan No. 53327/2016).

In 2017, the first sanctions were issued in two cases concerning the use of a cultural good for advertising purposes (Trib. Palermo No. 1371/2014, on an image of Massimo theater; Trib. Florence No. 13758/2017, on an image of Michelangelo’s David on the leaflets and website of a company offering guided tours in museums). Non-pecuniary damages however were not granted at this stage.

Between 2022 and 2024, Italian Courts recognized the infringement for non-authorized use, granted both pecuniary and non-pecuniary damages, and introduced a personality right, i.e. an image or identity right related to cultural goods (Trib. Florence No. 1910/2022, Trib. Florence No. 15147/2018, and Trib. Florence No. 2992/2021, on a copy of Michelangelo’s David in tuxedo for advertising purposes; Trib. Florence No. 1207/2023, on a magazine cover where a model’s image transforms into Michelangelo’s David via lenticular (3D) printing technique; Michelangelo’s David (or its replica) in an online image repository; Trib. Venice No. 5317/2022, on Leonardo da Vinci’s Vitruvian Man on jigsaw puzzles; Appeal Bologna No. 1792/2024, on the portrait of the Duke of Este in a trademark for vinegar). One of these decisions also considered Articles 106–108 ICCGL as overriding mandatory provisions and affirmed their extraterritorial outreach. This aspect was contested in Germany by the Regional Court of Stuttgart No. 170247/22.

Against this backdrop, four issues deserve to be studied: (i) the fees required for exploiting cultural goods and their images; (ii) the authorization needed for the exploitation; (iii) the personality right related to the cultural good; and (iv) the cross-border reach of the national provisions on cultural heritage.

(i) Italian provisions on images of cultural goods remain independent and autonomous from copyright rules. Therefore, they do not lengthen copyright protection, nor do they impose a protection on non-original works in the public domain. On the other hand, it remains difficult to imagine that Directive 2006/116/EC on the terms of protection of copyright or Article 14 Directive (EU) 2019/790 on copyright in the Digital Single Market have an impact on a national code regarding cultural goods, mainly for the abovementioned different respective goals and underpinning. Fees introduced by the national system on cultural heritage comply with the EU copyright framework and with Article 14 Directive (EU) 2019/790 in particular. National rules on cultural heritage appear also in abstracto compliant with Directive (EU) 2019/1024 on open data, introducing a ceiling on fees that can be imposed for the use of information extracted from a collection of a museum, archive or library open to the public and a principle of non-discrimination for similar uses.

(ii) The administrative authority with the power to grant or reject authorization of use has full discretion as to its decision on the matter. Imposing conditions on circulation has an impact on freedom of expression, as does the fact of identifying the authority hosting the concerned cultural good as the only subject able to ensure the adequacy of the production and uses of related images. Legal certainty is also at stake, since in any case, it is difficult to interpret which elaborations for advertisement or merchandising purposes could be considered as compliant to the needs.

(iii) The personality right related to cultural goods emerging from the most recent Italian case law raises a lot of issues. Such a personality right seems to be aimed at justifying the existence of non-pecuniary damages, the removal of the unauthorized reproductions from the market even in case the fee was paid, and the urgency to provide an interim order even a long time after the beginning of the illicit use. Courts have sometimes affirmed an image right of the cultural good itself. Other times they have identified an identity right of the community of citizens evoked through the cultural good. Both these asset-centered or nationalistic approaches raise uncertainties and lack of legal ground in higher norms, since they deviate from the common understanding of personality rights and appear to disproportionately extend their limits. Indeed, personality rights are generally not intended to be assessed with respect to goods, nor for very vast dis-homogeneous groups. Moreover, it is generally admitted that the force of the legal claim for the enforcement of personality rights (including the right of integrity of authors) decreases as time passes. On the contrary, the personality right in cultural goods could gain significance over time, because of an increasing notoriety of the cultural good considered. Also, the presence of an actionable harm remains doubtful because the mere reproduction of any cultural good seems neither to unequivocally point to Italy, Italians or the hosting CHI, nor to automatically degrading the decorum of the tangible cultural good. All this considered, the interpretation as to the existence of an actionable personality right related to cultural goods is likely to be challenged on legitimacy-related questions.

(iv) One of the most internationally relevant aspects is to assess clearly the operational impact of Articles 106–108 ICCGL and understand whether Italian courts could issue a decision with a global outreach instead of a merely national scope. It is doubtful that measures such as cross-border injunction or compensation for damages are legitimate when the harmful event occurred outside of the Italian territory, and this in particular when the defendant has no domicile in Italy. Italian Courts have issued their decisions leveraging on the criterion of the forum commissi delicti. However, applying this criterion, the protection sought by the plaintiff remains limited within the boundaries of the state of the forum. The existence of multiple defendants, one of whom is located in Italy, or an exploitation on the internet are unlikely to change this assessment for different reasons. From a different angle, even the overriding mandatory nature of Italian provisions is not convincing, since here intangible objects, i.e. images are concerned, and not tangible cultural goods. In any case, if a cross-border order were issued, a refusal to enforce by invoking contrariety to public order seems possible. The argument could be developed around several arguments, i.e. the deviation from the common understanding of personality rights, the inadequate balancing with human and fundamental rights, the non-proportionality of the remedies provided, as well as the fundamental interest of society to safeguard the public domain. As a result, the extraterritorial scope of the ICCGL rules on images of cultural goods would be rather restrained.

Conclusion

An existing tension seems to affect the intention of CHIs to control images of cultural goods and the free circulation of intangible assets, that is typical of the digital and algorithmic society. The herein analyzed Italian approach is clearly oriented towards the control of such assets, more than aiming at their free circulation. This has implications on fundamental rights and broader constitutional issues, e.g. freedom of expression, access to knowledge, freedom to conduct a business. This approach seems to find legitimacy in the EU legal framework on copyright and open data. However, the personality right related to cultural goods as introduced by courts does not seem compliant with higher norms. On top of that, the overall system may be criticized from an economic perspective, as long as no evidence of its efficiency is provided. This also leads to criticism from a political perspective, since such a control-based approach is not in line with the current EU institutions’ initiatives, whose goals are to create a cloud for cultural heritage, ideally hosting functions and tools related to cultural heritage and 3D reproductions of cultural goods, as well as a European data space on cultural heritage, ideally interoperable with all the other data spaces that are being designed and built for different sorts of data.

Cristiana Sappa is Professor of Business Law at IESEG School of Management, Lille, France. c.sappa@ieseg.fr.

Ludovico Bossi is PhD Candidate in Law and Business and Member of the Innovation Law and Ethics Observatory (ILEO) at Luiss Guido Carli University, Rome, Italy. lbossi@luiss.it