70 years after the death of the author, his work becomes public domain if it is Italian cultural heritage, but it is still far from being free to use! We explain the Italian Cultural Heritage Code, why statues there have “personal rights” and why the whole thing also concerns Germans.
What do the game manufacturer Ravensburger, the magazine publisher Edizioni Condé Nast and Jean-Paul Gaultier have in common? For one thing: All three have sold products that were based on Italian art in one form or another.
- the German games publisher sold a puzzle with the Vitruvian Man by Leonardo da Vinci (1452 to 1519)
- the publisher of the Italian Vogue published an issue of the magazine GQ Italia with the cover model Pietro Boselli in the pose of the world-famous David by Michelangelo Buonarotti (1475 to 1564)
- the French fashion house produced a collection using classical paintings, including the Birth of Venus by Sandro Botticelli (1445 to 1510).
Secondly, they were also all sued by the Italian museums exhibiting the originals for infringement of rights in the works of art. Readers familiar with intellectual property issues might wonder how anyone could think that someone has exclusive rights to works of art that are more than 500 years old. If you look up § 64 of the German Copyright Act (UrhG), for example, you will see that copyrighted works become public domain 70 years after the death of the author. This means that they can be used by anyone from that point on. One can also frown at other things, after all, only one of the three companies is also located in Italy.
The reason for all three is that they have violated the so-called codice dei beni culturale e del paesaggio. This Italian cultural property code (CPC) serves to protect objects that are of artistic, historical, archaeological and ethnic-anthropological interest.
According to Art. 107 et seq. of the Italian CPC, such a classification of works in the public domain is accompanied by the obligation that anyone wishing to use the works commercially must obtain permission from the institution concerned and pay a usage fee if the request is granted. In addition, permission may be made subject to conditions, e.g. by imposing certain requirements on the presentation. The aim of this regulation is to ensure that Italy’s rich cultural heritage cannot be exploited without the country’s cultural institutions being able to share in it. In this way, the republic hopes to have a source of income for the preservation of its works of art. The amount of the licence fee depends on the circumstances of the individual case; especially if the expected income is high, the costs are correspondingly high.
This obligation also applies to companies abroad, insofar as the goods in question are also offered in Italy, as the Venice court decided in the Ravensburger case. These companies can then be sued in Italy at the place of jurisdiction for tort.
In addition, in the case against GQ Italia, the Florentine court ruled that the Gallerie dell’Accademia, which is home to the David, even has a right to the image of the statue – as with a real person (in Germany according to § 22 of the Art Copyright Act (KUG)). This image right can even extend to designs that merely resemble the work, such as models posing like the famous marble statue.
This shows that German companies, too, must be informed about the legal situation when they exploit Italian cultural property in any form. Even abroad, one is not protected from the long arm of the Italian Ministry of Culture.
These regulations of the Italian CPC also seem strange in view of current developments in the legal discussion in Germany and Europe. In Germany, for example, the Reiss-Engelhorn trial focused on photo bans based on the right of the house (§ 1004 (1) German Civil Code (BGB)) (we reported). In 2019, the European Union also created a regulation in the Digital Single Market Directive (“DSM-RL”) according to which so-called related rights to visual works can no longer exist after the expiry of the copyright protection period.
Related rights are exclusive rights in the cultural sector similar to copyright; they include, for example, performers’ rights or database protection rights. Above all, however, Art. 14 of the DSM Directive should exclude ancillary copyrights of photographers, as this would mean that third parties who use these photos because they assume that they are allowed to do so due to the public domain would “fall into the trap” and have to pay.
Art. 14 of the DSM Directive reads:
“Member States shall provide that, after the expiry of the term of protection of a work of visual art, material resulting from an act of reproduction of that work shall not be protected by copyright or related rights unless that material constitutes an intellectual creation in its own right.”
However, museums have repeatedly pointed out that these property rights are needed to generate important income from the sale of high-quality postcards, for example. This is precisely part of the raison d’être of the Italian CPC.
It is still unclear what will happen with photographic copyright after the DSM Directive has been adopted and implemented. There is much to suggest that the previous, institution-friendly case law of the courts will not be affected by Art. 14 of the DSM Directive.
Perhaps, however, the courts will take a new direction. In the 1980s, for example, a Bremen court stated that the prohibition rights based on ownership of the original work (the so-called “right to the image of one’s own thing”) could not go further than copyright powers. This could be taken up again, and in this way the purpose of this part of the directive, namely to facilitate access to Europe’s cultural heritage, would be furthered.
This then also raises the interesting question of whether regulations such as those in the Italian CPC are at all in conformity with European law. Because European law takes precedence over national law, this would have the consequence that national law would not be applied insofar as a conflict exists. In any case, Italy does not seem to assume that there is a conflict and has specifically regulated in a new Art. 32quater of the Italian Copyright Act that Art. 107 et seq. of the Italian CPC are not affected by the implementation of the DSM Directive. It is to be hoped that this question will be submitted to the ECJ for clarification in the near future.