Cultural heritage images, pseudo-intellectual property and the end of public domain - Using comparative law to teach the interplay between IP and cultural heritage regulation

Italy's latest controversies over the commercial use of images of Michelangelo’s David (Tribunale civile di Firenze, 20 Aprile 2023: Gallerie degli Uffizi vs GQ) and Leonardo’s Vitruvian Man ((Tribunale civile di Venezia  emerge judicially while the reproduction of the image of Botticelli's Venus for the Italian Ministry of Tourism's "Open to meraviglia" advertising campaign has triggered a controversy that has as its backdrop the role of the (Italian) State as custodian of (humanity's) cultural heritage. At the same time the Italian Ministry of Culture published the new "Guidelines for the determination of the minimum amounts of fees and charges for the concession of use of property handed over to state institutes and places of culture of the Ministry of Culture (Ministerial Decree of April 11, 2023, No. 161)". Also these new Guidelines has triggered a heated debate: some learned societies and scientific associations raised concerns about the application of the Guidelines to the academic publishing. For example, according the Guidelines, a university press has to pay to the Public Sector (Ministry of Culture or public museum) for the reproduction, in a book, of images of the public cultural property.

One of the many paradoxes of this Italian trend is the application of the logic of the State’s exclusivity to works (cultural heritage) that belong to humanity (and only by historical contingency are in the custody of the Italian State) and were created at a time when neither economic copyrights nor personality rights existed.

The compatibility of this pseudo-intellectual property with the Italian Constitution, European Union law and international law remains doubtful. In particular, under EU law the Italian public cultural property seems to be inconsistent with the art. 14 of CDSM 2019/790 directive on the works of visual art in the public domain. At international level the Italian pseudo-IP seems to be inconsistent with the human right to culture and science. In short, the recent Italian experience confirm that the public domain is threatened not only by intellectual property but also by pseudo-intellectual property (an even more threatening surrogate).

The issues about the relationship between (pseudo-)IP and cultural heritage regulation is important also from IP teaching perspective because they contribute to develop a critical view on the complexity of legal systems at national and international level. Comparative law methods – in particular, case method - are essential to achieve this critical thinking about the controversial interplay Ip and cultural heritage regulation