Access to heritage: A comparative study of Italy and the UK from a fundamental rights perspective

The objective of this work is to analyse the problem of restricted access to cultural heritage by current legislation, and to propose recommendations for reform to mediate the problem. The issues surrounding access to cultural heritage will be investigated from a fundamental rights perspective, with a comparative analysis between the UK, and Italy (which lends itself to discussion of the European Union). To exemplify the challenges to access to cultural heritage, this research focuses on the case of digital reproductions of public domain cultural heritage. This research is motivated by the evolving landscape of the cultural heritage sector, and the legal frameworks governing access to and dissemination of cultural heritage in the digital age.

A fundamental rights approach has been taken to highlight how important it is to ensure access to cultural heritage. There has been a steady flow of research looking at copyright law from a fundamental rights perspective, but much of this has focused on the relationship between copyright law and freedom of expression. This study instead focuses on the fundamental right to cultural participation, rephrased as the ‘right to access to cultural heritage’ in this research to encompass any related cultural rights. This aims to form a new perspective on copyright law and its relationship with fundamental rights. Through this lens copyright law is largely satisfactory – Article 14 of the Copyright in the Digital Single Market Directive is a great example of a legal provision that champions access to cultural heritage. The issue instead lies with other laws which can be used by Galleries, Libraries, Archives, Museums and other cultural heritage institutions to restrict access to cultural heritage for, for example, their own economic gain. This is particularly a problem when access to cultural heritage is restricted by laws or other legal measures when copyright law would otherwise allow access, use, and enjoyment of them, such as those that are in the public domain.

As a consequence, certain copyright provisions in the UK and EU should be reformed. Copyright non-overridability provisions for both the UK and EU legislators are proposed to be implemented into the Copyright, Designs, and Patents Act 1988, and the Copyright in the Digital Single Market Directive, respectively. Given that legislative reform is highly challenging to accomplish, other ways in which access to cultural heritage can be aided, such as guidance to the judiciary and increased funding for GLAMs, will be mentioned. Ultimately, however, it is argued that legislative reform is essential for championing access to cultural heritage and upholding fundamental rights within the copyright system in the digital age.

This working paper is a part of the "Outstanding LLM Dissertations 2024".