Diritti sui beni culturali e licenze libere (ovvero, di come un decreto ministeriale può far sparire il pubblico dominio in un paese) (Cultural Heritage Rights and Open Licenses (i.e. How a Ministerial Decree Can Obliterate the Public Domain in a Country))

Quaderni del Centro Studi Magna Grecia, Università degli Studi di Napoli, Federico II, 2011

14 Pages Posted: 18 Sep 2012

See all articles by Federico Morando

Federico Morando

Nexa Center for Internet & Society

Date Written: June 9, 2011

Abstract

This article analyses the Italian Cultural Heritage Law (Legislative Decree 42/2004, Art. 107) and makes some references to similar laws, such as the Greek one (Law 3028/2002, Art. 46), highlighting how these sets of norms produce a quasi-intellectual-property protection concerning the cultural heritage of these nations.

The so-called cultural heritage of a Nation, in the theory of copyright, should fall by definition into the public domain: the wealth of information that is free from the barriers to access or reuse usually associated with copyright protection» and which also represents a fundamental «basis of our self-understanding as expressed by our shared knowledge and culture (see the Manifesto of the Public Domain).

However, the analysis of the legislation on cultural heritage (at least in Italy and Greece) shows that most of the objects which are historically, archaeologically, architecturally significant, and so on, even when their authors have died for well over 70 years (the term of duration of copyright), are far from being freely reusable by anyone. Conversely, one faces the paradox that almost everything that is older than fifty years ends up being protected by 'cultural heritage rights', even before escaping the constraints created by copyright.

In short, Italy and Greece do not enjoy a public domain concerning the images of their statues, their churches, their paintings, their manuscripts and, in general, their cultural heritage and their monuments. One of the practical consequences of such a situation is that it is extremely difficult (if not impossible, at least theoretically) to publish photos of objects preserved in our museums on user generated platforms such as Wikipedia. And this legal setting also implies that a researcher would face complex legal issues, if he or she wanted to publish online some scientific articles featuring images of cultural heritage goods.

In this context, the first part of this article analyses the Italian Code of Cultural Heritage and Landscape for the part related to the creation of reproductions of cultural heritage goods. Then, the second part of the article drafts some approaches, which are alternative to the existing legal scenario and under which cultural institutions would be able to pursue most of their current goals, without impoverishing the public domain.

Note: Downloadable document is in Italian.

Keywords: copyright, cultural heritage, public domain, open licensing

JEL Classification: O34

Suggested Citation

Morando, Federico, Diritti sui beni culturali e licenze libere (ovvero, di come un decreto ministeriale può far sparire il pubblico dominio in un paese) (Cultural Heritage Rights and Open Licenses (i.e. How a Ministerial Decree Can Obliterate the Public Domain in a Country)) (June 9, 2011). Quaderni del Centro Studi Magna Grecia, Università degli Studi di Napoli, Federico II, 2011. Available at SSRN: https://ssrn.com/abstract=2148343

Federico Morando (Contact Author)

Nexa Center for Internet & Society ( email )

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Turin, TO 10100
Italy
+390110907217 (Phone)
+390110907216 (Fax)

HOME PAGE: http://nexa.polito.it

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