Everybody at some point in their life has photographed historic monuments, artistic and architectural works, buildings and, generally speaking, all works that have a cultural value. However, not everyone knows about the legal implications arising out of such activity or about the different rights that can be affected by it.
Am I free to take pictures of that cultural work? Am I free to use that picture in my commercial activity? Do I have a right to panorama? This is a difficult question to answer. Yet, it is of great importance for those who seek to use pictures of artistic and cultural works in their business, especially in the era of modern technologies.
First of all Italian Copyright Law applies. In fact, in the case of artistic, architectural or cultural works in general whose owner is still alive or passed away less than 70 years ago, an authorization by the author or its heirs must be sought to use pictures reproducing such works. In fact, Article 13 of the Italian Copyright Law (Law No. 633/1941) grants the author the exclusive right to reproduce its works in any way. The only exceptions to this rule are set forth in Article 70 of the Italian copyright law, among which there is the personal use of the reproduction.
Once such works are no longer covered by copyright, then are they freely reproducible? Should we have a right to panorama?
Such works are also relevant under the Italian Code on Cultural Heritage and Landscape (Legislative Decree No. 42/2004 – Codice dei beni culturali e del paesaggio), which aims at protecting Italian cultural heritage. And, indeed, we do have a huge cultural heritage!
More specifically, Articles 107 and 108 of such Law require those who want to use pictures reproducing goods that belong to Italian Cultural Heritage to seek authorization from the competent authority, which can either be the State or a local public entity. In any event, once the authorization is granted, a fee must be paid to the relevant authority.
Exceptions to this rule are limited and could be included in the right to panorama that is “the freedom to photographically reproduce monuments, artistic and architectural works, buildings and any public space in general without infringing third parties copyrights on such goods”.
In contrast to other jurisdictions where this right is provided within their copyright law, in Italy the right to panorama is not expressly regulated except for Article 108 of the Italian Code on Cultural Heritage and Landscape. Article 108 mentioned above, in fact, provides that no authorization and no fee are due for the reproduction of such works by individuals in case of personal use or for study purposes as well as by private or public subjects for the purpose of enhancement, provided they are implemented without profit. In any case, the Article also states that the freedom to reproduce them (without authorization/fee) is guaranteed in the case of non-profit activities, study, research, manifestation of thought or creative expression and promotion of cultural heritage.
So, it goes without saying that not much room is left for right to panorama. The issue here is a very tricky one: it all comes down to a need for balance between protection of our cultural heritage with the freedom to benefit – in a broad sense – from a cultural heritage which, after all, belongs to the whole world.
In Italy the conflict between those two requirements first became clear in 2007 when Wikipedia was warned by the National Trust of Florence (Soprintendenza per i Beni Culturali e Ambientali) for using pictures reproducing works kept in the museums of Florence, without seeking authorization nor paying the relevant fees. The incident drew the attention of the media and caused the Italian Parliament to run two consultations, which did not, however, lead to a conclusion. As a result Wikipedia stopped using such pictures in its online encyclopedia. However this choice resulted in a loss for the promotion of our cultural heritage, which Wikipedia was previously able to spread all over the world.
Furthermore, the recent case law does not seem to provide for a larger freedom of panorama. Indeed, two recent decisions of the Court of Florence and of the Court of Palermo ruled against it, narrowing its scope. In particular, companies using – respectively – pictures of the famous David by Michelangelo and of the Teatro Massimo of Palermo were ordered to stop such use on the basis of Articles 107 and 108 of the Italian Code on Cultural Heritage and Landscape.
In light of the above, the right to panorama still remains an unsolved issue. However, we are confident things will change soon even if we still do not know in which direction. The question is: are we sure that imposing an authorization and payment of a fee in order to reproduce a cultural work is really the key to protecting our cultural heritage?