Guidelines for the exploitation of Italian cultural heritage assets

Last April, the Italian Ministry of Culture issued a decree (Decree No. 161 of April 11, 2023, hereinafter the “Decree”) containing a set of guidelines for the determination of the minimum fees for the exploitation of assets under the custody of Italian institutions such as inter alia public museums, archives and libraries (“Linee guida per la determinazione degli importi minimi dei canoni e dei corrispettivi per la concessione d’uso dei beni in consegna agli istituti e luoghi della cultura statali”).

Despite the generic wording of the title, the Decree provides for specific criteria of calculation and minimum amounts of fees due for two different categories of activities:

(a) the reproduction of the so called “cultural heritage assets” pursuant to article 108, paragraph 6 of the Italian Cultural Heritage and Landscape Code (Legislative Decree of January 22, 2004, n. 42, hereinafter the “Italian Cultural Heritage Code”) and

(b) the use of the spaces where cultural heritage assets are located.

Reproduction of cultural assets

As it regards the first category, it is worth highlighting that under the system designed by the Italian Cultural Heritage Code any reproduction having a commercial purpose of Italian assets of cultural, artistical or historic interest falling within the definition of “cultural heritage assets” (as set forth in articles 2 and 10), should be subject to prior authorization from the State or the competent entity administering the relevant asset and upon payment of a fee or charge (article 107 and 108). On the contrary, reproductions of cultural heritage assets for non-commercial purposes - such as for study, research and cultural promotion purposes - do not need a prior authorization and are free of charge.

The reproduction right at issue, which represents a unicum at European level, applies irrespective of the exclusive rights provided for by the Italian law on copyright (Law of April 22, 1941, n. 633) and its adoption is justified by the interest of the Italian legislator to protect and safeguard the immense historical, artistic and cultural Italian heritage.

Hence, whenever the image of a painting, a sculpture, a palace, or a piece of furniture or any other assets falling within the definition of Italian cultural heritage asset, is to be reproduced for commercial purposes, such as for example on a T-shirt or on other products, or used for marketing or promotional material, or in a video game, a prior authorization from the competent entity should be obtained and the relevant fee should be paid. Violation of such provision could result in an injunction enjoining further use or distribution of the material including the unauthorized reproduction and an order to pay compensation for damages.

Recently, Italian Courts dealt with two cases related to unauthorized reproduction of cultural heritage assets which attracted the attention of specialized and not specialized media: reference is made to the decision of the Court of Florence of April 23, 2023 regarding to the unauthorized use of the image of the David of Michelangelo on the cover of a magazine (see  https://www.quotidianopiu.it/dettaglio/10472444/limmagine-dei-beni-culturali-tra-normativa-e-riproduzioni-non-autorizzate) and to the decision of the Court of Venice of November 17, 2022 on the unauthorized reproduction of the Uomo Vitruviano of Leonardo in a puzzle (see https://www.quotidianopiu.it/dettaglio/10379269/riproduzione-beni-culturali-sanzionato-luso-non-autorizzato-per-un-puzzle).

The law, however, does not provide for a standardized process for obtaining the authorization, which in any case is discretional and should be issued by the competent entity only after an evaluation of the compatibility of the use with the cultural aim and the historic and artistic character of the asset.  

Furthermore, as for the authorization costs, the law provides only general criteria for their calculation whereas, according to paragraph 6 of article 108 of the Italian Cultural Heritage Code, the minimum amounts of the fees and charges for the use and reproduction of the cultural heritage assets shall be set by the administration granting the exploitation right. However, at the time of entry into force of the Decree, only few entities had adopted their own rate systems, resulting in difficulties and uncertainties for the potential users of the reproduction of the cultural heritage assets which were often unable to estimate the economic impact of their projects.

In this regard, therefore, the Decree by setting minimum fees and by imposing to the competent entities to publish a table containing the tariffs for each use is undoubtedly a positive news since it covers a gap and grants more transparency concerning the exploitation of cultural heritage assets. As a results, companies will now be able to estimate in advance the price for reproducing a specific cultural heritage asset for instance for advertising purposes.

The Decree contains tables with coefficients which vary according to the type of use (e.g. for on line publications, scientific journals, merchandising) and the quantity of reproductions.

A specific section is dedicated to digital copies in very high definition, addressing specifically the hypothesis in which such copies are meant to be used in association with Non-Fungible Tokens (NFT). In this case, the fee is set by applying a coefficient which varies according to the value of the cultural heritage asset (ranging from 1.000 to 10.000 euros) and a license rate varying from a minimum of 90% to a maximum of 99% of the NFT sales.

Use of the spaces where cultural heritage assets are located

As it regards the use of spaces where cultural heritage assets are located, the Decree provides for a bipartition between the use of cultural spaces for personal purposes and that for commercial purposes, also distinguishing between the use for film footage or for photo shootings.

For space rental, fees range from 100 to 500 euros for spaces up to 50 square meters, up to a range from 900 to 3.200 euros for venues over 1550 square meters. Such fees have then to be multiplied by a coefficient of value of the location and a coefficient of use (institutional purposes, nonprofit, lucrative). For example – as reported in the Decree - the rental fee of a location of up to 350 square meters of a medium value, for a fashion show of five days would be 60.000 euros. In addition, the renter will also have to pay for living expenses (electricity, heating, staff and so on).

As said above, the Decree is a welcome novelty insofar as it helps to create transparency and clarity enabling entrepreneurs to predict the cost of reproduction of cultural heritage assets or rental of space. However, it should be highlighted that the Decree, notwithstanding having been adopted after a consultation with the Italian Film Commission, the Directorate-General for Cinema, and other stakeholders, attracted several critics from various scientific societies, archives and cultural associations and associations of researchers, which have written a letter to the Italian Ministry of Culture calling for a revision of the Decree. In summon, according to the signatories of the letter, the Decree not only significantly increases costs of reproduction for non-commercial purposes (for example, 40 colored photocopies in A4 format would cost for a student 40 euros) but also, by introducing fees even for reproductions published in academic journals and books, has a detrimental impact on scientific research, contradicting previous policies adopted by Italy with regard to cultural heritage and placing Italy outside international and European Union guidelines.