This complicated year is coming to an end but with heavy consequences especially in the social, economic and cultural fields, among all the museum system and that of permanent exhibitions. The closure during the first lockdown phase resulted in a reduction and suspension of many activities and the launch of promotional initiatives in virtual form in order to be able to maintain a relationship with the loyal user or with the potential visitor as an art user / culture. In the same market context, this suffering was recorded in private places, such as galleries and trade fairs, which were also forced to close and postpone scheduled events. After a summer of respite, with all the precautions imposed by the Dpcm, we have unfortunately returned to a second phase of restrictions.
We ask Lawyer Giovanni Caroli, author in the Art & Law section, for an opinion, from a legal point of view, regarding the administrative and legislative measures in force during the pandemic.
John Caroli – The pandemic has caused numerous state, regional and local regulations to be issued. Most of these are administrative acts with the aim of reducing and avoiding the spread of the contagion from Covid 19.
Already with the "Cura Italia" decree law, measures of an economic nature have already been established to support the cultural sector. All reconfirmed with the "Relaunch" decree which established a special fund called "Emergency fund for companies and cultural institutions" (article 183, paragraph 2). Even more recently, the MiBACT has set up new funds for the benefit of the whole cultural system for actors, musicians, dancers, circus artists and workers (note from the MiBACT of 12 November); other supplies have been allocated for the refreshment of non-state museums, including hitherto non-beneficiary realities and also for the Comics Museum of Milan (note from the MiBACT of 13 November); We also recall the new 10 million euro tender for the refreshment of the autumn exhibitions (note from the MiBACT of 18 November).
Indeed, the scheduling and non-realization of the autumn-winter exhibitions already budgeted for would lead the museum system to considerable economic damage.
But what are the legal issues?
John Caroli – Yes, in fact, cultural institutions have had to adapt and at the same time seek digital methods and applications which, despite being an excellent solution for the use of cultural "material", must also be analyzed according to the Civil Code of Cultural Heritage. Let me give you an example: the digitization of works and their dissemination taking into account image rights (Law No. 22 of 1941 April 633) Art. 108. Concession fees, reproduction fees, deposit.
1. The concession fees and the considerations connected to the reproductions of cultural property are determined by the authority that has consigned the goods also taking into account:
a) the nature of the activities to which the concessions of use refer;
b) the means and methods of carrying out the reproductions;
c) the type and time of use of the spaces and goods;
d) the use and destination of the reproductions, as well as the economic benefits deriving therefrom for the applicant.
2. The fees and considerations are usually paid in advance.
3. No fee is due for reproductions requested or performed by private individuals for personal use or for study reasons, or by public or private entities for valorisation purposes, provided they are carried out on a non-profit basis. The applicants are in any case required to reimburse the expenses incurred by the granting administration.
(paragraph thus amended by article 12, paragraph 3, letter a), law no. 106 of 2014 then amended by art. 1, paragraph 171, law n. 124 of 2017).
3-bis. In any case, the following activities are free, carried out on a non-profit basis, for purposes of study, research, free expression of thought or creative expression, promotion of knowledge of cultural heritage:
(paragraph introduced by article 12, paragraph 3, letter b), law no. 106 of 2014).
1) the reproduction of cultural assets other than archival assets subject to restrictions on accessibility pursuant to chapter III of this title, carried out in compliance with the provisions that protect copyright and in ways that do not involve any physical contact with the asset, nor the exposure of the same to light sources nor,
inside cultural institutes, nor the use of stands or tripods;
(number thus amended by Article 1, paragraph 171, Law No. 124 of 2017)
2) the dissemination by any means of the images of cultural heritage, legitimately acquired, so that they cannot be further reproduced for profit.
(number thus amended by Article 1, paragraph 171, Law No. 124 of 2017)
4. In cases in which damage to the cultural assets could derive from the concession activity, the authority which has consigned the assets determines the amount of the deposit, also constituted by means of a bank or insurance guarantee. For the same reasons, the deposit is also due in cases of exemption from the payment of fees and charges.
5. The deposit is returned when it has been ascertained that the assets under concession have not suffered damage and the expenses incurred have been reimbursed.
6. The minimum amounts of the fees and considerations for the use and reproduction of the assets are established by provision of the granting administration.
Definitely a subject that will soon see the application of the new "Copyright Directive in the Digital Single Market": directive (EU) 2019/790 of 17 April 2019 (the transposition deadline for which is set at 7 June 2021), which will define the news on the subject of “liberalisation”.
John Caroli - Exactly. The Directive reads: “Considering the rapid technological developments that continue to transform the way works and other materials are created, produced, distributed and exploited”, while new business models and new players constantly emerge. The relevant legislation needs to be future-proof so as not to limit technological developments. The objectives and principles established by the Union legal framework on copyright remain valid. However, there is still legal uncertainty regarding certain uses, including cross-border uses, of works and other subject-matter in the digital environment, both for right holders and users. In some areas, as indicated in the Commission Communication of 9 December 2015 entitled 'Towards a modern and more European copyright framework', there is a need to adapt and complement the current Union copyright framework safeguarding a high level of protection of copyright and related rights. This Directive provides for rules to adapt certain exceptions and limitations to copyright and related rights to the digital environment and to the cross-border context, as well as measures to facilitate certain licensing procedures, in particular, but not limited to dissemination of out-of-commerce works and other materials and the online availability of audiovisual works on video-on-demand platforms, in order to ensure wider access to content”. For further information, I indicate below the text showing the Directive in its entirety.
A last question. The pandemic has accelerated the adoption and applications of new technologies and therefore also of the relative legal aspects that are too outdated and linked to models of promotion and management of the entire cultural system.
John Caroli - "Factus dies hic transeat”. A new time has begun to which we should get used to and adapt by committing ourselves to contributing to the formulation of new legal rules that can better protect today's activities and foresee any updates since it is not possible to know how fast the transformation will be. It will certainly be the task of the new generations of professionals working in the legal field, who living in this era will be able to better interpret and adapt to evolution. Therefore, if, on the one hand, effective improvements have been achieved and the awareness of the need for a wider use of the available technologies has been acquired, on the other hand, the urgent and urgent need for a regulatory adjustment emerges. The analysis of the reality in which we live has highlighted how the application of "traditional" standards is to be considered in several parts unsuitable for what are the special needs in the technological field. Therefore the main task of scholars and technicians will necessarily be that of developing a more specialized discipline capable of contributing to correct technological development.
