Digital Reproduction of Cultural Heritage Images in the Light of the EU Copyright Directive and the Italian Code of Cultural Heritage and Landscape

The contribution aims at analysing the issue of digital reproduction of images of cultural heritage in the context of the reformed EU legislation on copyright and of the national legislation contained in the Italian Code of Cultural Heritage and Landscape. The EU legislator has recently amended the European copyright rules by adopting the Directive (EU) 2019/790 (the so-called Digital Copyright Act) which contains some provisions directly concerning the access to cultural heritage in the digital environment. The development of new digital technologies has, in fact, profoundly changed the methods of fruition of the cultural heritage in EU Member States, which are also Members of the UNESCO Convention of 1972. The digital medium represents a valuable tool available to the custodians of cultural heritage as it expands the possibilities and opportunities for access, thus helping to give new life to the past. In this perspective, the diffusion of digital reproductions of artistic works in the public domain can also facilitate «the access to and promotion of culture» as well as «the access to cultural heritage» (as recognised in recital 53 of the Digital Copyright Act). To this end, Article 14 of the Directive has expressly excluded from the protection of copyright and related rights all reproductions, for whatever purpose made, of works belonging to the visual arts that become of public domain (unless they are original). In this way, therefore, the intention was to allow the free dissemination, sharing (including online) and reuse, even for lucrative purposes, of non-original copies of works of art that have fallen into the public domain. In Italy, the objective pursued by the EU legislator to promote access to and dissemination of cultural heritage finds a limit in the current domestic regulation of cultural heritage and, in particular, in article 108 of the Code of Cultural and Landscape Heritage subjecting the reproduction for lucrative purposes of cultural heritage works to prior authorization from the cultural entities and to the payment of a fee, even though these works have now fallen into the public domain with regard to copyright. Therefore, the article will discuss whether, in the current context of open data, the ‘protectionist’ vocation that animates the above provisions of domestic Italian law still has an effective and valid reason to exist.