Postcards from Italy – The Art of Controlling Images of Cultural Goods Better Than Copyright Could

Italian provisions on images of cultural goods may be reminiscent of copyright, in particular because they allow production and uses of such reproductions upon an authorisation, they impose fees for creating or exploiting them, and point out to the notion of integrity. However, the two sets of rules remain independent and autonomous, with a different purpose, subject matter and constitutional ground. National provisions are designed and interpreted in such a way that their outreach is broader than copyright. Therefore, they introduce a para- or quasi-copyright system, i.e. rules that are not necessarily accountable to third parties, affecting in this way the producers, users and reusers of potential images, as well as the material that is supposed to stay in the public domain. This is the main reason why it is crucial to study their legitimacy. This work studies Arts. 106–108 of the Italian Code on Cultural Goods and Landscape (ICCGL) limiting the ability to reproduce cultural goods, including when they embed a work of art, and this even when the latter is in the public domain. It explains why these written rules, based on a public property paradigm, may be criticized in a political and economic perspective, but are still compliant with higher norms, including EU rules on copyright and open data. In addition to that, the paper analyses the case law related to these provisions, it focuses in particular on the personality right on cultural good emerged in recent cases, and it explains why this prerogative raises concerns as to its consistency and compliance with higher norms. Finally, the article explains why a potential extraterritorial outreach of the provisions on images of cultural goods, as stated by an Italian Court, has to be challenged in different perspectives. It also clarifies costs and benefits of this solution, concluding on the operational implications on market operators and on the principle of non-discrimination.