The Spectre of Re-Fencing Off the Public Domain: Italian Copyright and Cultural Heritage Legal Scenarios

Abstract International and European Union (EU) law jointly promote cultural development as a global and cross-border value, mandating national efforts for the preservation, enjoyment, and enhancement of cultural heritage. Cultural development is also the specific objective underlying Art. 14 of the EU Copyright in Digital Single Market Directive (CDSMD), designed to ensure that works of visual arts in the public domain remain a vital source of cultural enrichment across the Union. Against this backdrop, the Italian legal system is currently showing some resistance against such legal obligations. Its transposition of Art. 14 CDSMD explicitly refers to the applicability of the Italian Cultural Heritage Code, which typically requires permission and, in many cases, a fee payment to use reproductions of works of cultural significance, notwithstanding their public domain status. Concurrently, Italian courts have engineered new forms of exclusivity over cultural heritage belonging to the public domain, ignoring copyright law and other applicable norms. The study examines the Italian legal framework on public domain cultural heritage, unveiling a significant degree of incompatibility with international and EU legal obligations. Through a literal, systematic, and teleological legal analysis, the authors unearth how the Italian legal system fails to balance norms regarding cultural heritage, copyright, and data, thus calling for coordinated EU and national interventions towards a sound application of legal rules safeguarding the public domain.