Di Daniela de Pasquale e Giovanni de Gregorio
Virtual tours are becoming quite popular as a business service and an entertainment tool. As all virtual reality products, they entail a number of legal issues.
When used for the purposes of attracting tourists in connection with art and cultural venues they likely will embody the images of monuments and cultural heritage assets.
So the question is: can I include the image of Coliseum (or of one of the other innumerable glorious witnessing of Italian history)therein?
Another thorny issue relates to the online use of derivative works of public work of arts.
In particular, in various T&Cs of social networks, it is provided that the social network can use the contents uploaded by users even for commercial purposes. Hence, although the user does not intend to pursue an economic purpose publishing its holidays’ pics of public work of arts, such user cannot authorize the online platform to use it commercially unless he/she has obtained the authorization of the right holder.
The “freedom of panorama” exception allows users to take photographs, make videos or creating other works such as pictures or paintings, sculptures, or, more in general, public work of arts, without infringing the rights of the authors of their creative works, even if the use of such work is commercial.
As a matter of principle, EU law protects creative works. However, Article 5(3)(h) of the Infosoc Directive (Directive 2001/29)provides an optional exception establishing that Member States may limit copyright for the use of such works located in public places. Notwithstanding one of the main aim of intellectual property should be spreading creative works and cultural values, this exception has not still been implemented by some European jurisdictions. In Europe, Italy together with France and Sweden do not allow users to reproduce,communicate make available to the public or whatever other uses of their derivative works.
Other countries (e.g. Denmark and Spain) have implemented this exception, however, limited to uses made for private purposes. Looking at the Italian legal framework, Section 70 of the Italian Copyright law (Law 633/1941) provides that the abridgment,quotation or reproduction of fragments or parts of a work and their communication to the public for the purpose of criticism or discussion, shall be permitted within the limits justified for such purposes, provided such acts do not conflict with the commercial exploitation of the work; if such derivative works are made for teaching or research, the use must have the sole purpose of illustration,and noncommercial purposes. Moreover, users can publish protected works online provided that such works are uploaded with low resolution or downgraded and used for educational or scientific purpose, without commercial purposes. Indeed, users shall have to indicate the name of the author in the case in which such name is reproduced in the artworks.
Outside these cases, the user shall have to obtain the consent of the rightholder in order to create derivative works and exploit them commercially. For this reason, the user shall verify time by time if an artwork is in the public domain or is still covered by the Italian Copyright Law.
In principle anyways people are free to make their pictures of public buildings and works of arts until they do not use them for commercial purposes and pursuant to the limits provided under Section70.
But the matter in Italy is twofold.
The Italian Code of Cultural Heritage (Legislative Decree 42/2004) provides that users shall have to pay a fee to the Ministry of Cultural Heritage for the reproduction of public work of arts. However, Section 108(3) of this Code provides an exemption which applies for personal use, educational purposes, or if the use of the artworks is requested by public authorities or privates for purposes related to the promotion of such works, provided that there is not commercial use of the same, neither directly nor indirectly. Section 108 establishes also that, exclusively for educational and research purposes, freedom of expression, promotion of the cultural heritage, users can reproduce cultural heritage, except for bibliographic works and archives, provided that there is not a physical contact with the work, the work of art is not exposed to light sources or lamp stands and tripods are not used inside cultural institutes. Indeed, such exception covers also the dissemination of the images of cultural heritage, lawfully acquired, which cannot be reproduced for commercial purposes, directly or indirectly.
As a result, the application of these rules leads to the rise of the transactional costs which users face with in Italy. So, basically, before using the image of the famous Cesar Pelli Tower in Milan or of any other new building or ancient monument that is part of the Italian Cultural Heritage one should make a previous assessment.
Even if a user has obtained the authorization of the right holder to reproduce his artwork or the latter is in the public domain, such user might have to pay the fee established by the Ministry for the commercial use of the same cultural heritage, creating a duplication in the licensing costs of cultural works and limiting the promotion of the Italian cultural heritage.
On 23 March 2016, the Commission launched a public consultation on the “panorama exception” in order to gather the positions of the relevant stakeholders. The consultation closed on 15 June 2016.
The public consultation was divided into two main parts: the current framework related to the use of images of cultural works located permanently in public places and the potential impacts of the introduction of a mandatory “panorama exception” at EU level. In particular, in relation to the second part of this public consultation, the Member States have expressed their openness towards the introduction of a mandatory exception in the EU, however, limited to noncommercial purposes.
On the contrary, consumers,institutional users and service providers considered that a mandatory “panorama exception” should cover both noncommercial and commercial uses in order to provide full legal certainty in view of the fact that the definition of commercial and noncommercial uses is not always clear, especially in the digital environment. Clearly, artists were clearly opposed to the introduction of a mandatory exception extending to commercial uses, arguing that Member States had already adopted such exception in their legal framework and standing up for “threestepstest”approach provided by the Infosoc Directive.
The stakeholders’ positions expressed in this public consultation constitute the reason why a mandatory exception has not still been introduced at EU level.
Hence, is it possible to shoot a video of Rome Coliseum and exploit it commercially?
Notwithstanding under copyright law the answer would be positive due to the fact that the work has fallen in the public domain, the user will be subject to the payment of administrative fees established by the Ministry of Cultural Heritage.