We have vocally supported a review of the geo-blocking rules for AV content. However, a majority of MEPs gave in to a campaign by an AV industry coalition that relied on unfounded claims and fearmongering. Industry claimed that a reform of the geo-blocking rules would threaten 15 million creative sector jobs and 4.4% of the EU’s GDP. These numbers have no basis in fact, as we explained in a previous blogspot. First, there are various ways to maintain the current territorial financing model (allowing passive sales or introducing curtain periods for example). Second, no independent economic impact assessment has been carried out yet, which would be the basis for any legislative initiative. According to the campaign, the abolition of geo-blocking would also lead to less diversity and less content being produced in fewer languages – an extremely hypothetical construction with, again, no basis in fact.

The industry campaign was so effective that Parliament even removed § 25 from the report that would have expounded the problem of geo-blocking of content that is “funded or co-funded” by the EU. One would believe that the demand that “whenever EU funds are involved in the financing of audiovisual content, no EU citizen should be deprived access to it” is a fairly uncontroversial one. But not for the AV industry, which is happy to accept public funding and still wants to call all the shots on distribution.

If we don’t see a reform of the geo-blocking rules for audiovisual content, European consumers will continue to be locked out from content that they would be willing to pay for if it isn’t licensed in their country of residence. As the Commission’s first short-term review showed, consumers in the smaller markets are most affected by the current regime. While European consumers on average have access to only 14% of the films available on line in the EU (p. 10), consumers in Greece, for example, only have access to 1.3% of all the titles in all Member States (p. 68 of Staff Working Document part two).

The result is a frustrating reminder that overblown statistics and other baseless claims remain an effective lobbying tool in Brussels. So what should happen next? COMMUNIA has been a constructive participant in the European Commission’s stakeholder dialogue where a number of options have been explored to abolish geo-blocking without harming the territorial financing model of the AV industry. These include proposals from stakeholders (including from us) for pilot projects to make publicly funded content available on a European media platform upon expiry of a curtain period against remuneration. The next Commission should take the initiative and implement such a pilot project to assess the economic and social impact of a gradual fade-out of geo-blocking for audiovisual content.

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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.

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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.

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