Background

According to Article 14 of the CDSM Directive, any material resulting from an act of reproduction of a public domain work cannot be subject to copyright or related rights-protection unless it is original in the sense that it is the author’s own intellectual creation. All EU member states are required to implement Article 14 and amend their national legislation accordingly (see Deborah De Angelis’s blog post).

Italy transposed Article 14 of the CDSM Directive into domestic law by passing Article 32-quarter of the Italian Copyright Law n. 633/1941 in November 2023 (Legislative Decree no. 177). The article includes a problematic addition: “The provisions on the reproduction of cultural heritage contained in Legislative Decree No. 42 of 22 January 2004 [CCHL] remain unaffected.” The reference is to Article 108 of the CCHL, which requires the payment of a concession fee for the reproduction of digital images of state-owned cultural heritage in the public domain if the reproduction is for-profit. The provisions of the CCHL beg the question of the protection of the public domain by other fields of law outside of copyright and related rights, which are not explicitly mentioned in Article 14 of the CDSM Directive (see Mirco Modolo’s article on the subject). Only the European Court of Justice (ECJ) can provide guidance on this matter. However, no Italian court has referred to the ECJ yet to clarify the relationship between Article 14 and the CCHL.

In recent years, the CCHL has been used by Italian cultural heritage institutions to initiate a number of lawsuits against commercial uses of works by Italian artists, which are clearly in the Public Domain.

Recent case law on the unauthorised reproduction of Italian cultural heritage in the public domain

1) Ministry of Culture v. Studi d’Arte Cave di Michelangelo:

In 2018, a famous Italian luxury fashion brand posted a video on the internet in which a physical copy (a clone of the statue) of the David—created by Studi d’Arte Cave Michelangelo S.r.l. (Cave)—could be seen wearing a tailor-made high-quality outfit of the brand. The Ministry of Culture sought to have the Court of first instance of Florence issue an interim measure to prevent further use of the image of Michelangelo’s David for commercial purposes. The Court dismissed the petition on the grounds of lack of urgency, as both defendants had removed the contested material from their websites.

However, the Ministry of Culture found out that Cave continued using the image of the David on another website, studidarte.it, still for commercial purposes, and filed a new urgent petition against Cave in 2021. The petition was dismissed and then appealed against it. On 11 April 2022, the Court ordered (see Simone Aliprandi and Carlo Piana’s comment) Cave to stop using the images of the David for commercial purposes, to remove all images of the statue from Cave’s websites, to pay the Gallerie dell’Accademia di Firenze a fine of € 500 for each day of delay in the execution of the preventive order, and it was further ruled that summaries of the order would be published at the expense of the defendants in two national daily newspapers, in two local daily newspapers and on Cave’s Instagram profile and YouTube channel.

The Court concluded that the mere ex-post payment of compensation is insufficient for the legitimate reproduction of a cultural asset. For the use of the image to be lawful, consent is required, following a discretionary assessment of the requested use (and its possible configuration) concerning the asset’s cultural purpose and historical-artistic character. The nature of a cultural asset inherently requires the protection of its image through an evaluation of compatibility reserved for the Public Administration. This evaluation encompasses the right to reproduce the asset and the safeguarding of the asset’s consideration by fellow citizens – its identity as a collective memory of the national community and the territory. Therefore, according to the Court of Florence, this notion should constitute a comprehensive right to the cultural asset’s image (right of publicity).

2) Galleria dell’Accademia Firenze v. GQ:

In 2020, the Gallerie dell’Accademia di Firenze and the Ministry of Culture sued the publishing house GQ (Condé Nast) for the unauthorised use of the image of Michelangelo’s David on the July/August issue’s cover of GQ Italia (see Justus Dreyling’s post on this blog and this interview with Deborah De Angelis). The plaintiff asked the Court to enjoin the use of the image of Michelangelo’s David. The Court promptly issued an order banning the use of the image on the cover of the magazine and prohibited any further digital use of the image.

Eventually, on 15 May 2023, the same Court ruled again in favour of the Gallerie and the Ministry of Culture and condemned the publisher GQ to pay the Galleria dell’Accademia di Firenze two separate amounts: € 20,000 as a concession fee and an additional € 30,000 for the way in which David’s image was distorted for the magazine. In addition, the judge acknowledged the right to the image (which is granted by Article 10 of the Italian Civil Code to physical persons and legal entities), with specific reference to cultural heritage, considering the legal basis for this right is found in Articles 107 and 108 of Legislative Decree No. 42/2004, which directly implement Article 9 of the Constitution(See Eleonora Rosati’s comment on IPKat).

3) Gallerie dell’Accademia di Venezia v. Ravensburger:

On  24 October 2022 (see Deborah De Angelis and Brigitte Vézina’s comment on this blog and Giuilia Dore’s contribution on the Kluwer Copyright blog), the Court of first instance of Venice decided on the lawsuit brought by the Gallerie dell’Accademia di Venezia, a public museum under the Italian Ministry of Culture, against the German toy-making companies Ravensburger AG and Ravensburger Verlag GmbH as well as their Italian branch represented by Ravensburger S.r.l. for the unauthorised use of the images of Leonardo da Vinci’s Vitruvian Man on a series of puzzles. The order enjoined the German company to stop using the image of the Vitruvian Man for commercial purposes, to pay to the Gallerie dell’Accademia di Venezia a fine of € 1,500 for each day of delay in the execution of the preventive order, and it was further decided that summaries of the order would be published at the expense of the defendants in two national daily newspapers and in two local daily newspapers.

4) Uffizi v. Gaultier:

In October 2022, the Uffizi Galleries announced their intention to sue the French fashion house Jean Paul Gaultier for damages that could exceed € 100,000 after the company’s (allegedly) unauthorised use of images of Botticelli’s Renaissance masterpiece The Birth of Venus to adorn a range of clothing products, including T-shirts, leggings, and tops, for the brand’s new line Le Musée. There has not been any news on this controversy, and there is no evidence that a lawsuit has been served (see, Justus Dreyling, Brigitte Vézina, and Teresa Nobre’s post on this blog).

It is clear that a protectionist trend is emerging in line with the approach of the government (for a critical approach, see Roberto Caso’s comment on the Kluwer Copyright blog).

The Ministerial Decree on the minimum tariff for the reproduction of the digital images of the state cultural heritage

Prior to 11 April 2023, the interpretation and practice of art. 108 of CCHL granted cultural heritage institutions discretion to decide whether to adopt an Open Access policy, enabling the use of the digital images of cultural heritage through the use of a Creative Commons licence or Public Domain tools, to promote fair access to and sharing of Italian culture, while supporting the role of cultural heritage institutions in sustainable economic and social development.

In April 2023, however, the Italian Ministry of Culture  introduced minimum fees for commercial reproductions of state-owned cultural heritage, including for works in the Public Domain that all state-owned public museums will have to apply (Decree no. 161 also known as Guidelines). The Decree will have a detrimental effect on the promotion and dissemination of Italian cultural heritage globally, impeding knowledge sharing (see reporting on huffingtonpost.it and repubblica.it). The new guidelines represent a significant setback as they contradict the fundamental principles of public enjoyment and enhancement of cultural heritage enshrined in the Italian Cultural Heritage Code.

The situation in Italy escalated on 14 June 2023, when Senator Marcheschi (Fratelli d’Italia) proposed to punish with a fine between € 20,000 to 60,000 the unlicensed use of cultural objects in the public domain in violation of Articles 107(1) and 108(1)-(3) of the CCHL (as an amendment to the proposal of law on Article 518-duodecies of the Italian Criminal Code, on the destruction, dispersal, deterioration, defacement and illegal use of the physical cultural heritage and landscape). At the session of June 21st, 2023, the amendment was withdrawn, having received a negative opinion because of the costs it would entail to activate the sanctions, but it turned into an agenda for the Government “to consider the advisability of providing for the imposition of an administrative fine of 20,000 to 60,000 euros against anyone who, in violation of Articles 107, paragraph 1, and 108 paragraphs 1, 2 and 3 of Legislative Decree No. 42 of January 22, 2004, reproduces a cultural heritage or markets its reproduction in the absence of or in contravention of the order of the authority in charge of the property.”

A solution for no problem

The flow of income generated from the licensing of images of cultural objects remains more or less unchanged for major museums. Peripheral and smaller museums, by contrast, lament an increase in bureaucracy not supported by the hiring of new staff. The reproduction and dissemination of images of cultural heritage in smaller museums, even for commercial purposes, contributed to the diffusion of culture and the promotion of national heritage.

The discretion that was left to individual museums when licensing images of the objects under their custody, allowed the museum staff to consider different factors: internal costs, whether they already had good quality images not covered by copyright, the promotion of the museum, the valorization of the cultural object, etc. The mandatory application of the minimum tariff stated by the guidelines makes it impossible, e.g. for state-owned museum staff, to permit the free use of images according to the open access principle. In the past, museums and other state-owned cultural institutions could allow the free use also for commercial purposes (as permitted by CC licences and tools compatible with open access) without asking for a concession fee. The discretion previously held by cultural institutions to decide whether to authorise the free use of cultural heritage images has been eliminated.

Instead of creating positions to help under-staffed museums or promoting the preservation of the Italian cultural heritage, the Ministry of Culture has enacted unnecessary restrictions. The imposition of high fixed fees for the for-profit use of images of cultural objects in the Public Domain may result in limiting the exploitation only to privileged classes of individuals, while preventing local communities or “communities of origin” with a limited budget from participating in it. Moreover, the community has not been involved in the decision-making process and has not had a chance to participate in the debate. This scenario is further complicated by the possibility for the licensing administration to deny for-profit uses of images by invoking the “decorum” exception, namely judging the declared use of the image of the artwork as inappropriate. “Decorum” is a very broad, subjective, and undefined concept that contributes to generating uncertainty in this field (see Daniele Mancorda’s contribution).

What is more, creativity is at risk! Today, when using professional photographic reproductions of works in the Public Domain, which are subject to both copyright and the Guidelines, users will face the so-called “tragedy of anticommons” (a term coined by Michael Heller). These works will be used less due to the existence of multiple layers of protection, which are hard to navigate.

The post Tales of public domain protection in Italy appeared first on COMMUNIA Association.

Il nuovo rinascimento [“the new Renaissance”]

We have covered the lawsuits against French fashion label Jean Paul Gaultier for using Sandro Botticelli’s Birth of Venus on a collection and German toy maker Ravensburger for using Leonardo da Vinci’s Vitruvian Man on a jigsaw puzzle on the COMMUNIA blog in the past months. Both Gaultier and Ravensburger were brought to court by the respective museums that host these works in their collections, the Uffizi in Florence and the Gallerie dell’Accademia in Venice, respectively, for violations of the Italian Cultural Heritage Code. According to Art. 106 ff. of the Code, commercial uses of works require the authorization of the cultural heritage institution that has the work in question in its collection as well as the payment of a concession fee – even if that work is in the Public Domain.

More recently, the court of Florence has ruled in favour of the Gallerie dell’Accademia in Florence and the Italian Ministry of Culture for the use of the image of Michelangelo’s David on the cover of GQ Magazine Italy. The cover features a hologram, which, depending on the viewing angle, shows a photographic reproduction of Michelangelo’s statue or a bare-chested, muscular man posing in a similar fashion (see this interview with COMMUNIA member Deborah De Angelis as well as Eleonora Rosati’s post for the IPKat).

Copyright with a glued-on beard

All of the conclusions reached in these cases can be rebutted on the same grounds we’ve explained extensively in previous contributions. The reproduced works are clearly in the Public Domain, that is, they are completely free from any copyright restriction. Their creators Sandro Botticelli (1445-1510), Leonardo da Vinci (1452-1519) and Michelangelo (1475-1564) have all been dead for centuries. Even Michelangelo, the youngest of the bunch, lived long before any concrete notion of copyright ever existed. Yes, the Italian Cultural Heritage Code is an instrument of administrative law. The function of this Section of the Code is so similar to copyright, however, that one must wonder if its raison d’être isn’t simply to serve as a pseudo-copyright that the Italian state can use to generate income off of Public Domain works. When new laws are created to negate the effect of a carefully yet imperfectly-balanced copyright system to justify a dubious revenue model, we must react.

Because in doing so, the Code calls into question the social contract on which copyright is based. Copyright is granted for a limited period of time, allowing creators to extract monetary gain from their works for as long as they are copyright-protected. When a work’s term of protection ends, it enters the Public Domain and, as a rule, becomes free to use by everybody. Carving out Italian collections from this rule hinders access to our common European cultural heritage. The works in these collections belong to all of us in the sense that everyone should have access to them and be able to draw on them to create something new.

But this isn’t just a philosophical issue. It is also fundamentally at odds with copyright law and its intrinsic balance: that protection lasts for a limited time. As Roberto Caso comments on the Kluwer Copyright Blog: “The ex post facto judicial creation of an eternal and indefinite pseudo-intellectual property leads to the violation of the principle of the numerus clausus of intellectual property rights.” More specifically, the Code is incompatible with the spirit of Article 14 of the DSM Directive, which states that reproductions of works of visual art that are in the public domain cannot be subject to copyright or related rights, unless the reproduction itself is an original creative work (see Giulia Dore’s contribution to Kluwer).

Is there a method in the madness?

What is equally egregious is the fact that the Italian cultural heritage code establishes the Italian state as an arbiter to determine whether any given use of a work is appropriate. The idea that a state – more than 500 years after the creation of a work – claims to be able to determine what is an appropriate use of a work is not only frivolous, but dangerous for democracy, freedom of expression and participation in cultural life. There is no need for a state to determine if something is an appropriate or inappropriate use. Leave that decision to creators, their audiences, and to society as a whole, whose members can engage in free and democratic debates.

As a side note: It is even more frivolous if we consider that the Italian Ministry of Tourism runs a campaign full of clichés with a cartoonish Venus as a modern-day influencer — ironically the campaign is called “Open to Meraviglia” [English text in original, which translates into “Open to Marvel”] . To be clear, the Ministry of Tourism is well within their rights to do this, and this is a perfectly fine example of what parody might look like. So why should a public body be allowed but not a toy maker, magazine or fashion creator? These events set a very worrying precedent for artists and creators in Italy, Europe, and all over the world.

While it’s been fun writing about the absurdity of these lawsuits for some time, enough is enough. Italy must repeal this section of its cultural heritage code and ensure that Public Domain works can be freely reused by all.

The post Something (the Public Domain) is rotting in the state of Italy appeared first on COMMUNIA Association.

At the 43rd session of the WIPO Standing Committee on Copyright and Related Rights (SCCR), which took place in March, we witnessed a major shift in the EU’s position on international lawmaking in the area of exceptions and limitations to copyright (L&Es). The discussions also brought to light the rationale of the demandeurs of a Broadcast Treaty, deepening the civil society’s concerns about the impact of a new copyright-like right on the public domain and public interest activities.

Exceptions and limitations: a departure from the EU’s stance on text-based negotiations

The last time the most important forum at the global level for copyright rulemaking engaged in text-based negotiations on L&Es was a decade ago, in the lead-up to the adoption in 2013 of the Marrakesh Treaty. After the treaty was adopted, many developed countries claimed that the international instrument for persons with print disabilities was meant to be an exception, and opposed the drafting of any other instrument on copyright exceptions, be it binding or non-binding (such as a joint recommendation or a model law).

This stance was repeated ad nauseam over the years, particularly by the EU. So much so that not even the COVID-19 pandemic, which demonstrated clearly how important it is for schools and cultural heritage institutions to be able to operate remotely and across borders, seemed to remove them from those crystallised positions. 

This status quo remained until the last SCCR, when developed countries finally showed a change of heart. While still opposing the drafting of a legally binding instrument, the EU stated that it was willing to discuss non-binding instruments:

In this context, as consistently expressed in the past, we would like to remind, however, that the EU and its member states cannot support work towards legally binding instruments at the international level or any preparations in this regard. However, we stand ready to continue to engage constructively under this Agenda Item to reflect further on the other possible non-binding instruments and ways how WIPO can best help to provide guidance to WIPO member states to address the problems faced by institutions and people with disabilities including through the introduction of meaningful exceptions and limitations in their respective national laws. (…)

However, as the week proceeded, it became apparent that France wanted to soften the EU statement delivered by the Commission. The only EU country to ask for the floor, France made the following intervention, repeating what had been the EU’s position until that point:

In this regard, France has reservations regarding the fact that the conversation on L&Es could touch upon normative instruments. The continuation of discussions in L&Es should be founded on the exchange of best practices at the national level (…).

Frustrated with these continued attempts to divert the conversation away from concrete language to address the problems and solutions faced by educators, researchers, and cultural heritage institutions, in our statement we threatened not to return to the Committee:

We come here, year after year, to defend the rights of teachers and researchers. We support your discussions. We bring evidence. We talk to you, the person that was here before you and the person that will come after you. It’s a massive effort. Yet, every year, we leave this room empty handed, with no binding instruments, no soft laws, nothing that could make a difference. Do know that we question if we should come back.

We further shared the story of Jonas, a Senior Lecturer in Comparative Literature at the University of Gothenburg, in Sweden, who we interviewed for our publication “Nobody puts research in a cage”. We explained his struggles with accessing the data sources he uses in his research remotely and sharing his research results with colleagues for purposes of verification and validation of his research. And we read his words out loud, hoping they could make a difference in the discussions:

Perhaps they did. At the end of the last day of SCCR/43, the Committee finally agreed to approve the revised African Group proposal for a work program on L&Es, which includes drafting work towards “objectives and principles and options for implementation at national level”. The Chair was tasked with advancing information sharing and consensus building on L&Es between SCCR meetings and given the option to create working groups of member states supported by experts to produce outcomes for consideration by the Committee.

Broadcast Treaty: increasingly difficult to grasp!

The discussions on the protection of broadcasting organisations against unauthorised retransmission and related uses were centred around the Chair’s Second Revised Draft Text for the WIPO Broadcasting Organizations Treaty, which continues to raise substantial issues of concern. 

While there seems to be a common understanding that any potential treaty should be narrowly focused on signal piracy and not extend to post-fixation activities, there are still many important issues to be agreed upon, including fixation rights, a perpetual term of protection, and limitations and exceptions.

The revised draft text contains important changes to the L&Es provision. Yet, none of the exceptions are mandatory, not even those that are already mandatory for copyrighted works (such as quotation, news of the day, and providing access for the visually impaired). Furthermore, unlike the Regional Comprehensive Economic Partnership Agreement and the Trans-Pacific Partnership Agreement, the text does not even mandate the contracting parties to achieve a fair balance between the rights and interests of authors and rightsholders, and those of  users. 

Equally concerning is the idea to give contracting parties the option to protect signals by means of a fixation right. This would grant broadcasters a new lawyer of exclusive rights over the programme-carrying signal on top of the rights they already have on the signal content, effectively extending the scope of protection beyond the mere signal. This is particularly concerning when the signal content is already in the public domain, as it would allow broadcasters to re-appropriate public domain broadcasts. Broadcasters are sitting on huge collections of public domain content and are the only ones that have complete, high-quality copies of those materials. Prohibiting the fixation of signal would mean preventing access to, and re-use of, the public domain material itself. 

When questioned why public domain materials were not being excluded from this new layer of rights, the facilitators made it clear that this was intentional. They claimed that broadcasters needed to be incentivised to promote public domain works to the public. We found this reasoning nonsensical and asked why corporations would need copyright-like incentives to use materials that are free for anyone to use and for which they would not need to pay any copyright licence fees. However, none of the facilitators were able to provide a response.

The next SCCR will take place in Geneva on November 6-8. This time, the Committee will meet for three days instead of five, and attendees will be asked to forego making oral opening statements and general declarations, in order to allow the Committee to focus on substantive discussions. Certainly something to look forward to!

The post Finally, something to look forward to at WIPO appeared first on COMMUNIA Association.

We made the following statement regarding the protection of broadcasting organisations (Agenda Item 5):

COMMUNIA works to defend the public domain and in our opinion the proposed broadcast treaty is a threat to the public domain and usage rights.

The current version of the draft treaty allows countries to protect broadcasters with exclusive rights without sufficient balance or consideration for the societal needs related with access to knowledge and information.

Broadcast signals carry content that plays an essential informational, cultural and educational role in our society. It is therefore crucial to ensure that the rights-based model currently under discussion does not create an additional obstacle to education, research and the activities of cultural heritage institutions.

Let us give you an example. We recently interviewed EU researchers to better understand the needs and challenges faced by them. A Swedish researcher told us that they use broadcasts as sources of scientific research. They research public discourse and they analyse mainly radio broadcasts and daily newspapers. With the current legal framework they already face considerable copyright-related obstacles. In their words “We really get into copyright issues and there it has been very messy.”

So why make things harder for them? This treaty needs to get rid of fixation rights. It needs to mandate that the parties achieve a fair balance by means of exceptions, and it needs to have the same mandatory exceptions that we have in Berne and in the Marrakesh Treaty. And this is just a start. We count on you to make it right.

The post SCCR/43: COMMUNIA Statement on the Protection of Broadcasting Organisations appeared first on COMMUNIA Association.

The defendants are the world-renowned German toy making companies Ravensburger AG, Ravensburger Verlag GMBH and their Italian office represented by Ravensburger S.r.l.. They were brought to court for using the image of the widely popular ​​Public Domain drawing to produce and sell puzzles without authorization or payment of a fee to the Gallerie dell’Accademia di Venezia, where the physical artwork is kept.

A puzzling question

Let’s pause here. Authorization, fee, Public Domain work… These don’t add up. The Public Domain is made up of works that are out of copyright, free to use by anyone for any purpose. The Public Domain is the treasure trove of creative works that inspires us all and upon which all creativity depends. In fact, protecting the Public Domain is so important that in 2019 the European legislator made it explicit in Article 14 of the European Directive on Copyright in the Digital Single Market (CDSM) that non-original reproductions of works in the Public Domain must stay in the Public Domain — no copyright protection arises from the simple act of reproduction of public domain works, e.g. through digitisation.

So, how come the Gallerie could prevent Ravensburger from using an image of the Public Domain Vitruvian Man on its puzzles? How come the court:

• prohibited the defendants from using for commercial purposes the image of the work “Vitruvian Man” by Leonardo da Vinci and its name, in any form and any product and/or instrument, including digital ones, on their websites and on all other websites and social networks under their control;
• ordered the defendants to pay a penalty of € 1.500 to the Gallerie dell’Accademia di Venezia for each day of delay in the execution of the precautionary order;
• ordered the publication of the order in extracts and/or summaries of its contents by the Gallerie dell’Accademia and at the expense of the defendants in two national daily newspapers and in two local daily newspapers?

The answer: The Italian Cultural Heritage Code

The answer lies with a particular piece of Italian law: the Italian Cultural Heritage Code (Legislative Decree n. 42/2014). According to the Italian Cultural Heritage Code and relevant case law, faithful digital reproductions of works of cultural heritage — including works in the Public Domain — can only be used for commercial purposes against authorization and payment of a fee. Importantly though, the decision to require authorization and claim payment is left to the discretion of each cultural institution (see articles 107 and 108). In practice, this means that cultural institutions have the option to allow users to reproduce and reuse faithful digital reproductions of Public Domain works for free, including for commercial uses. This flexibility is fundamental for institutions to support open access to cultural heritage.

Incompatible with Article 14 CDSM

Be that as it may, the Cultural Heritage Code’s “authorization+fee” system generally deals a severe blow to the Public Domain in Italy, and alarmingly, beyond its national borders — Creative Commons calls attention to this in its Global Open Culture Call to Action to Policymakers. It is in fact completely at odds with EU legislation protecting the Public Domain: Article 32, quater of the Italian Copyright law (Law n. 633 of April 22nd, 1941) clearly conflicts with the intent of the European legislator. That is because Article 32, quater transposes Article 14 CDSM but limits its effect to the application of the Italian Cultural Heritage Code. We at Communia have strong reasons to believe this is incompatible with the letter and the spirit of Article 14.

Even in cases where European legislation does not in itself have direct effects or applicability in the national legal system of the Member States, it must always represent an indispensable guiding parameter for national courts, which are called upon to interpret national law in the light of European legislation (i.e., the obligation to interpret it in conformity). Further, there is a general prohibition for Member States to allow a national rule to prevail over a contrary EU rule, without making a distinction between earlier and later national law.

Not the only case

The Vitruvian Man is sadly not an isolated case. Just a few months ago, we commented on the one opposing the Uffizi Museum to Jean Paul Gaultier, where the defendant, a French fashion designer, used images of another Renaissance masterpiece, Botticelli’s Birth of Venus. These cases are bound to leave wreckage in their wake: great uncertainty around the use of cultural heritage across the entire single market, hampered creativity, stifled European entrepreneurship, reduced economic opportunities, and a diminished, impoverished Public Domain. To address these issues, we hope the European Court of Justice will soon have the opportunity to clarify that the Public Domain must not be restricted, a fortiori by rules outside of copyright and related rights, which compromise the European legislator’s clear intent to uphold the Public Domain.

Quite curiously, even though the precautionary order should be executed with specific regard to the Vetruvian Man’s puzzle, it is interesting to see that on the defendant’s website one can still  buy puzzles reproducing “La Gioconda” (the Mona Lisa) and “The Last Supper” by Leondardo da Vinci; “The Kiss” by Hayez and another “The Kiss” by Klimt and many other monuments, works of art, as well as images of nature and animals.

Liberalise it

Is legal action the right way to deal with this issue? Court proceedings are expensive and will not change reality. A different approach (compatible with an open access policy and the protection of the Public Domain) that liberalises the faithful reproduction of cultural heritage in the Public Domain would be more supportive of tourism, the creative industry and “the benefit of civil society in general. Other than being compatible with the principle stated by Art. 14 of the CDSM Directive.

The post The Vitruvian Man: A Puzzling Case for the Public Domain appeared first on COMMUNIA Association.

The answer lies not in copyright law but in the Italian cultural heritage code, Article 108 of Legislative Decree no. 42 of 2004 to be precise. This article of administrative law imposes a concession fee for the commercial reproduction of publicly owned works to be paid in advance to the institution delivering the work. Notably, the approach is also different from the concept of the Paying Public Domain or domaine public payant that exists in a number of African and Latin American countries and which taxes all uses of Public Domain works. Under the Italian cultural heritage code, fees need only to be paid for works that are held by Italian cultural heritage institutions and directly to that institution, not to the Italian state.

Cultural heritage laws should promote the public interest

We are aware of similar laws existing in Greece (Article 46 of Law no. 3028/2002 on the Protection of Antiques and Cultural Heritage in General), France (Article L621-42 of Code du Patrimoine) and Portugal (Administrative Order no. 10946/2014 on the Use of Images of Museums, Monuments and other Properties allocated to the Directorate-General for Cultural Heritage). Importantly, administrative law in general and this type of cultural heritage code in particular operate on a different logic than intellectual property law, as Simone Ariprandi explains in greater detail. Administrative law as an area of public law governs relations between legal persons and the state and not relations between private individuals. The intention is thus to promote the public interest and not to protect the private interests of authors.

The problem is that this law does quite the opposite of promoting the public interest by de facto curtailing the Public Domain. The Public Domain is an essential component not just of our copyright system, but essential to our social and economic welfare, as expressed in our Public Domain Manifesto:

[The Public Domain] is the basis of our self-understanding as expressed by our shared knowledge and culture. It is the raw material from which new knowledge is derived and new cultural works are created. The Public Domain acts as a protective mechanism that ensures that this raw material is available at its cost of reproduction — close to zero — and that all members of society can build upon it.

Imposing a fee for the use of certain Public Domain works restricts access to these public goods and thus stifles creativity. COMMUNIA is built on the conviction that the Public Domain must be upheld and guarded against attempts to enclose it from both public and private actors if we want to ensure the widest possible access to culture and knowledge and creativity to thrive.

Users should be trusted

So why do some EU countries exploit the physical ownership of works for which copyright has long expired? There are two main reasons, which from the perspective of national lawmakers might justify this measure. The first one is financial. The second one could be a paternalistic argument to retain some control over the artifacts held by national cultural heritage institutions and shield them against alleged misuse.

The financial argument does not stand up to a simple cost-benefit analysis. Fees collected through this mechanism do more harm than good, and any revenue generated is far outweighed by the heavy cost for members of society who are deprived of their fundamental right to access and enjoy culture, knowledge and information.

The notion that artists like Botticelli et al. and their work require protection from the general public is also easily dispelled. While we understand that masterpieces like the Birth of Venus are closely associated with the Uffizi and representative of Italian culture in general, this does not justify a financial barrier to the reuse of Public Domain works. There is also little evidence for the inappropriate use of Public Domain works, as stated in CC’s “What Are the Barriers to Open Culture?” report. Thus, we do not see a basis for retaining control by pricing out unwanted uses to ensure that no harm is caused to the reputation of the work, the author or the institution itself. We believe to the contrary that in an open society, the public must be trusted and enabled to make uses that are in line with fundamental freedoms, including freedom of expression.

It is unlikely that the Uffizi are worried that the commercial exploitation of the Birth of Venus per se would create a reputational risk, since this contradicts the institution’s own practice of exploiting its works of art for commercial gain. It is of course a question of personal taste whether one likes Gaultier’s printed multicolor tulle lounge pants or not. Yet a quick look at the Uffizi webshop reveals that the institution is by no means shy to market Botticelli’s masterpiece in similar ways. The visitor will find a shopping bag, a spectacle case (including a spectacle cloth), an oven glove and similar artifacts all incorporating Boticelli’s painting in some way or another. To be clear, the Uffizi should use works from their collection as they see fit to generate income. But to claim that museum professionals know better how to place the Birth on an oven glove is dubious at best.

Botticelli created the Birth of Venus during the 1480s — more than 500 years ago — and yet it remains so iconic not in spite of Jean Paul Gaultier, the Simpsons and other commercial creators referencing or incorporating the work but because of them. The transformative use of the Birth — even in a commercial context — doesn’t diminish the work, but keeps it relevant and ensures that it lives on as part of our cultural memory.

In sum, Italy’s cultural heritage code, although promoting important principles such as preservation and protection of heritage, poses a threat to the public domain, to the detriment of creators, reusers and society as a whole. While the best way forward is to remove this provision from the Italian cultural heritage code, there is in the meantime room for agency for cultural heritage institutions. Cultural heritage institutions can better fulfill their mission and still operate within the scope of the law by choosing not to request the payment of a fee by reusers of public domain heritage. The Uffizi should lead by example and withdraw its claim, and celebrate how cultural heritage is continuously being reinvented in new and unexpected ways through free creative expression.

The post The Uffizi vs. Jean Paul Gaultier: A Public Domain Perspective appeared first on COMMUNIA Association.

The book is available as a paperback and for download in various digital formats. It is part of the Walled Culture Project and provides a compact, non-technical history of digital copyright and its problems over the last 30 years, and the social, economic and technological implications. One chapter chronicles the fight over the EU copyright directive between 2014 and 2019.

Glyn who has been a keen observer of all discussions around copyright policy in the EU over the past decades tries to answer the following key questions:

• What are the problems with copyright in the digital age?
• Why does copyright harm creators and block global access to knowledge?
• How does copyright threaten basic freedoms and undermine the Internet?
• How can we promote creativity and help artists and make a living in the digital age?
• What should we do to solve all these problems?

Walled Culture draws on the interviews published on the project website. All references to online sources link to archival copies held by the Internet Archive, thus ensuring that the book will remain useful even when the original sources are relocated or become permanently unavailable.

COMMUNIA congratulates Glyn on the publication of his important book and particularly on his choice to dedicate the book to the Public Domain.

The post Walled Culture, the Book, Now Available appeared first on COMMUNIA Association.

The event was kicked-off by COMMUNIA president Paul Keller, who in his opening remarks (reproduced in full at the end of this post) argued for the need to put discussion about copyright policy back on the agenda of the EU legislator: three years after the adoption of the DSM directive, it is clear that the EU copyright framework remains a fragmented mess that does not adequately address the needs of users and creators in an increasingly complex digital environment. Paul Keller stressed that COMMUNIA hopes that the new set of policy recommendations will contribute to an open and respectful debate with policy makers and stakeholders from across the copyright policy spectrum about how we can work towards a more just and open EU copyright system that embraces the opportunities offered by digital transformation for users and creators alike.

In a first reaction, MEP Tiemo Wölken (S&D) welcomed COMMUNIA’s ambition and highlighted the importance of improving the EU copyright framework in the context of ambitions to strengthen the digital public sphere in Europe. See here for a recording of his intervention.

His intervention was followed by the presentation of the new policy recommendations by Paul Keller and Teresa Nobre. In her remarks, Teresa highlighted the evolution of the recommendations to more explicitly address the concerns of both users and creators (instead of users’ rights, the new recommendations focus on usage rights) and the increasing importance of (procedural) safeguards against copyright abuse. Paul and Teresa then walked the audience through the 20 individual recommendations:

The presentation of the recommendations was followed by a reaction from Prof. Séverine Dusollier, who echoed the overall need to reform the EU copyright framework and welcomed the level of ambition contained in the new recommendations. See here for a recording of her reaction.

Opening remarks by Paul Keller

So why are we assembled here today and why are we launching a set of 20 policy recommendations for improving the EU copyright framework? Isn’t copyright policy a discussion that was wrapped up during the last Commission’s mandate? With the adoption of the DSM directive that followed almost three years of debate of almost unrivalled intensity?

We would argue otherwise. Yes, in the end the EU legislator managed to adopt a compromise. And yes, even the most controversial provisions of the DSM directive have been upheld by the Court of Justice. But that does not mean that the EU copyright framework is perfect or that it is fit for purpose. Looking back from a distance, the DSM directive has made the EU copyright landscape even more messy than before.

So far only 14 of the 27 EU member states have fully implemented the directive. And after last month’s decision by the CJEU it is very questionable if most of these implementations meet the Court’s requirements for fundamental rights compliance.

And while the DSM directive has harmonised (to some degree) some important aspects of the EU copyright framework — the protection of the public domain status of reproductions of public domain works, the new mandatory exceptions for education, text and data mining, and preservation of works held by cultural heritage institutions come to mind, the rules for access to out of commerce works and the rules strengthening the contractual position of authors and creator come to mind, important parts of the EU copyright framework are still very much fragmented.

While the implementation of the DSM directive would have been an opportunity for the Member States to update other parts of their copyright systems as well, national lawmakers have largely shied away from this opportunity. Only in very few cases have national legislators decided to reform national legislation in order to better align it with the objective of increasing access to knowledge and culture or to further harmonise rules across member states.

Exceptions and limitations that protect fundamental rights exist in some member states but not in others. Procedural safeguards to enforce usage rights are missing in action in most member states and the copyright framework still constrains too many activities that it should enable — for example e-lending.

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This all takes place against a background of a substantial strengthening of usage rights, both through recent CJEU case law but also through the language of the final article 17 compromise that helped the DSM directive across the finish line. As we have discovered over the last three years, Article 17 does contain in itself a number of elements that substantially strengthen the rights of platform users.

After the amount of opposition against Article 17 from us and many others this feels somewhat counter-intuitive, but who would have thought that what was proposed by the Commission in 2016 as an attempt to curtail the liability privileges of large online platforms would become a vehicle for enshrining the concept of exceptions and limitations to copyright as users rights into the EU framework and at the same time harmonise the so far optional exceptions covering citation, caricature, pastiche and parody through the back door?

But as last month’s CJEU ruling also makes it clear, these conceptual changes will only become meaningful if the legislators implement accessible procedural safeguards for all types of platform users, be they consumers or creators.

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So with all of this in mind we think that it is high time to put copyright policy back on the agenda. The work is far from done and with important work on the big digital projects of this legislative period almost completed we think that it is time to start thinking about the future evolution of the EU copyright framework and the role of Europe in global discussions about copyright, so that the challenges and opportunities can be reflected in the agenda of the next European Commission.

By presenting our recommendations today we want to open the debate and give it direction. These recommendations will guide our work over the next decade and if our previous set of recommendations — which guided our work over the past 10 years is any indication — then we should see at least some of them becoming legislative reality by the end of Europe’s digital decade.

By launching the recommendations here today we hope to open a dialogue with policy makers and stakeholders from across the copyright policy spectrum and we hope that these policy recommendations can contribute to an open and respectful debate about how we can work towards a more just and open EU copyright system that embraces the opportunities offered by the digital transformation for users and creators alike.

We are really looking forward to working with all of you on making these recommendations happen over the next couple of years!

The post Twenty copyright policy recommendations for the next decade appeared first on COMMUNIA Association.

Our new policy recommendations address key policy opportunities for EU lawmakers to expand the Public Domain, increase access to and re-use of culture and knowledge and leverage the power of the digital transformation for society.

The policy recommendations will supersede the 14 existing policy recommendations that have guided our work in the past decade and have made a real contribution to the evolution of the EU copyright framework. On the 31st we will discuss the new policy recommendations with lawmakers, activists and academics. For this, we will be joined by MEP Tiemo Wölken and Professor Severine Dusollier (SciencePo).

After the launch of the recommendations (and of our new website), there will be a networking reception with the ability to exchange views with the COMMUNIA core team.

The event is open to everyone subject to registration here. We kindly ask you to confirm your attendance by Friday, May 27th. In case the max. number of registrations is reached, participants will be confirmed on a first-registered, first-served basis.

We are looking forward to toasting to the next decade with you!

The post Join us for the launch of our new policy recommendations on 31st May in Brussels appeared first on COMMUNIA Association.

Less than a year ago, we celebrated COMMUNIA’s 10th anniversary, assessing how its foundational 14 policy recommendations contributed to the expansion of the public domain during the 2011-2021 decade. At that time, we also announced that we would update our policy recommendations for the decade to come.

We have consulted with many copyright experts and key stakeholders over the past months to identify new priorities for the decade to come. That process has now come to an end and we are looking forward to presenting the results publicly, in an in-person event that will bring together EU policymakers and academics. The discussion will be followed by an apéro reception at the venue.

The event is open to everyone subject to registration here. We kindly ask you to confirm your attendance by Friday, May 27th. In case the max. number of registrations is reached, participants will be confirmed on a first-registered, first-served basis.

We are looking forward to toasting to the next decade with you!

COMMUNIA

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