Freedom of panorama in Italy: does it exist?

Arnaldo Pomodoro's Sfera Grande,
located in Pesaro (Marche)

Until recently the exception in the InfoSoc Directive (Article 5(3)(h)) allowing so called ‘freedom of panorama’ was an obscure and little discussed - if not altogether neglected - one.

That is no longer the case: discussion of freedom of panorama has been undertaken at the level of EU legislature (the Reda Report recommended this exception be made mandatory), and Member States have legislated in this area. France, for instance, has just introduced a narrow exception allowing freedom of panorama.

The InfoSoc Directive in fact allows Member States to introduce an exception in their copyright laws to allow the "use of works, such as works of architecture or sculpture, made to be located permanently in public places".

But what is the situation in Italy? This Member State is interesting for many reasons, including the fact that, while formally it does not have an exception allowing freedom of panorama, a few years ago the competent Ministry stated that making reproductions of copyright works permanently located on public display is not to be regarded as a copyright infringement.

Katfriend and art law expert Gilberto Cavagna di Gualdana (MiLa Legal) explains where the law stands:

Here’s what Gilberto writes:

“Freedom of Panorama - the right to take picture and/or videos of buildings, monuments, as well as artistic and architectural works present in a public space – is not recognized in Italy, unlike other countries. Italian law does not in fact include a specific provision that establishes or regulates such a right. Therefore, evaluation of the legality of reproduction of visible works in a public place must be conducted according to general copyright laws (Law 22 April 1941 No 633 as amended: the ‘Copyright Act’) and the protection of cultural heritage (Legislative Decree 22 January 2004 No 42 as amended: the ‘Cultural Heritage Code’).

Copyright law protects all works that possess creative character, no matter the method or form of expression, and reserves to the author the right of economic exploitation of such works as well as the right to prevent any use that could be damaging of the author’s honor and reputation. Though there are some exceptions, for the most part, the duration of economic rights for protected works is 70 years after the death of the author; moral rights are not subject to any temporal limitation and upon the death of the author, these rights can be exercised by descendants and the President of the Council of Ministries as long as, “public purposes require so” (Article 23 of the Copyright Act).

The reproduction of a work protected by copyright hence always requires authorisation from the author/owner (or from the descendants). However, there are is also a number of exceptions: in particular, reproduction is always allowed for “personal use, on condition that this act does not conflict with the normal exploitation of the work or of the other subject-matter and does not unreasonably prejudice the rightholders” (Article 71-sexies of the Copyright Act). Another case is the “reproduction, free of charge, via Internet, of images and music in low resolution, for didactic or scientific use and only in cases in which such usage does not have an economic purpose” (Article 70 of the Copyright Act).

   

The case of the 'Armed David'

The Cultural Heritage Code protects works that have artistic, historical, archeological and ethno-anthropological interest, irrespective of their ownership (public or private). However, these works cannot be “works of a living author or works whose creation does not date back to more than 50 years, if the works are objects and over 70 years if they are buildings” (Article 10 of the Cultural Heritage Code). As regards their reproduction, the Code established that the “Ministry, regions and other public territorial entities can allow the reproduction of cultural objects...” (Article 107 of the Cultural Heritage Code).

The provision does not specify whether it encompasses solely cultural objects protected 'indoors' (such as inside a museum) or also those that are located outdoors. The provisions also covers the topic of whether protection can be available to cultural works housed both indoors and outdoors, or solely the former, since – according to scholarly literature – cultural works that are freely visible in public should be subject to “a regime of pure and simple commons. The image of these works must therefore be considered “common” for all and the reproduction of such a cultural work, no matter the purpose, should therefore be free as well, and not subject to any authorisation or payment” (Resta, L’immagine dei beni, in Resta (edited by), “Diritti esclusivi e nuovi beni immateriali”, Torino, pp. 557-558).

The Cultural Heritage Code thus leaves a large margin of appreciation to public authorities that have access to protected works without giving consistent indications and behavioural references. In practice, authorities have adopted different policies: for example, the Municipality of Milan called for a specific procedure to allow the filming of the city’s cultural works, even with payment of a compensation depending on the use and final purpose of the images obtained; some Monuments and Fine Arts Italian Public Departments (named “Soprintendenze”, organisations linked to the Ministry of Cultural Heritage, known as 'MiBACT'), such as the one in Cagliari (Sardinia), consider there to be no need for authorisation or payment for the use of cultural works exposed visibly in public. 

The wording of the Cultural Heritage Code refers specifically to cultural works that are available to all public authorities, meanwhile comparable protection is not set forth for cultural works that are privately owned. According to scholarly literature, the same legislation for public cultural works might be also applied to those that are privately owned (interpretation by analogy) due to the fact that the Cultural Heritage Code does not generally provide any distinction regarding the state of ownership of the goods; however, this theory does not have unanimous confirmation.

Maurizio Cattelan's L.O.V.E.,
located outside the Milan Stock Exchange

The lawfulness of the reproduction of a work protected by the Cultural Heritage Code, lacking the prior consent of the owner, may depend on the type of works (public or private), its location (inside a museum or in an open, public space) and any policy adopted by the entity that controls such work. 

In the absence of a clear set of rules, the matter of acknowledging in Italy a Freedom of Panorama and its possible terms and conditions of such right was submitted to the MiBACT. In the response given on 5 February 2008 to the relevant parliamentary hearing, the Ministry responded that “freedom of panorama […] is acknowledged in Italy for the well-known principle under which behaviour that is not forbidden by law must be considered lawful”; with the consequence that, with the exception of the provisions of the Copyright Act, “in Italy, since there is no specific legislation in place, it must be lawful to photograph freely all visible works, from the new building in the Ara Pacis site to the Coliseum, for any purpose, including commercial, with the exception that, in modifying or altering the object of the picture, this is offended in its decorum and in the values that it expresses”. [readers might remember the recent case of the 'Armed David']

The response of the Ministry has given rise to criticism, also because the answer seems to be partially departing from the Cultural Heritage Code. Currently, the discussion whether or not freedom of panorama exists in Italy is far from settled.  In any case, lawfulness of each reproduction of a cultural work shall be assessed, case by case, pursuant to the applicable rules of the Copyright Act and the Cultural Heritage Code.”