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Copyright and public domain: A critical view of the works of arts as cultural heritage in Peru and Italy

Andrea Jiménez Garay (Peru)

Senior Associate of the law firm Echecopar associated to Baker & Mckenzie International. Graduated lawyer from the Universidad del Pacífico («Sobresaliente»). Master’s studies concluded in Administrative Law Economics at the University of the Pacific (2022). LL.M. candidate to the IP law master organized by WIPO and the University of Turin (2023). Member of APPI and WIPO ADR Young Member.

Chiara Arena (Italy)

Lawyer practicing in Milan at Studio Previti Associazione Professionale in the IP and technology department. Graduated summa cum laude at the University of Pavia (2020). LL.M. candidate to the IP law master organized by WIPO and the University of Turin (2023). Member of AIPPI and Young ICCA.

  1. Introduction

Can you imagine the reproduction of Pancho Fierro, Francisco Lasso, or Rebeca Oquendo paintings in a collection of a Peruvian fashion designer? Or the reproduction of Leonardo da Vinci’s masterpieces in your band advertising? Copyright no longer protect those works of art since they are part of the public domain; however, are the said reproductions free? Does a fashion designer or the titleholder of a brand advertising need some kind of authorization?

In this short article, we will introduce the special Italian provisions on the protection of cultural assets, which is considered by some academics as pseudo-copyright protection, by generally developing the legal framework of the protection of cultural material heritage, making parallels with copyright rules in Peru and Italy, analyzing some leading cases regarding the special Italian provisions for the protection of its cultural heritage.

No doubt that the Peruvian and Italian States, per law, shall protect their cultural heritage, and one mechanism to protect those assets is intellectual property law, especially copyright and geographical indications, but what are the limits and the crosses between these kinds of protections? Focusing on the copyright perspective and the special Italian provision to protect cultural heritage, our main goal is to clearly set the mentioned topic to open the discussion on it.

With this article, we look forward to contributing to the academic exposure of the intersection between copyright and the protection of cultural heritage for a later assessment of the reasonability and proportionality of these special Italian provisions to identify whether they could and should be replicated in other countries such as Peru.

  1. Cultural heritage protection in Peru

Cultural heritage, in its broadest sense, is both a product and a process that provides societies with a wealth of resources that are inherited from the past, created in the present and passed onto future generations for their benefit. It is important to recognize that it encompasses not only tangible heritage, but also natural and intangible heritage[1].

According to Article 21 of the Peruvian Constitution of 1993, «Archaeological sites and remains, constructions, Monuments, places, bibliographic and archival documents, artistic objects and testimonies of historical value, expressly declared cultural assets, and provisionally those that are presumed as such, are the Nation’s cultural heritage, regardless of their status as private or public property

Therefore, cultural assets are protected by the State, provided they have expressly been granted said recognition. Likewise, under the said article, the State must promote private participation in the conservation, restoration, exhibition, and dissemination of cultural assets and their restitution to the country when it has been illegally transferred outside the national territory.

Besides the above, the National Heritage of the Nation in Peru is regulated under Law No. 28296, and its Regulation issued under Supreme Decree No. 011-2006-ED. Under Article 2 of the said Law, it is stated that: “An asset that is part of the Cultural Heritage of the Nation is understood to be any manifestation of human activity – material or immaterial – that due to its importance, value and paleontological, archaeological, architectural, historical, artistic, military, social, anthropological, traditional, religious, ethnological, scientific, technological or intellectual, is expressly declared as such or on which there is a legal presumption of being so. Said assets have the status of public or private property with the limitations established by this Law.»

To illustrate the protection given by the referenced Law, for example, its article 20, established as basic restrictions on the exercise of ownership of assets that are part of the Cultural Patrimony of the Nation, the alteration, reconstruction, modification, or restoration of all parts of the assets, without prior authorization from the National Institute of Culture in whose jurisdiction it is located.

  1. The protection of Cultural Heritage in Italy: a pseudo-copyright protection?

As in Peru, in Italy, cultural heritage is also protected in principle by the Italian Constitution. Indeed, its Article 9 states that «The Republic promotes the development of culture and scientific and technical research. It protects the landscape and the historical and artistic heritage of the Nation». At the same time, its Article 117 provides that the competence for enhancing cultural and environmental heritage and promoting and organizing cultural activities is shared between the State and the different Regions.

In 2004, Legislative Decree No. 42 (hereafter, for the sake of simplicity, «ICHC») was enacted and then modified in 2006, 2008, and 2014. This legislation aimed to protect and promote the cultural heritage behind the national community’s memory and the development of culture (Article 1 of the ICHC). This Decree is only dedicated to tangible cultural heritage, not intangible collective cultural identity, as Article 7 bis clarifies. The last one, apart from being protected by the UNESCO Convention of 2003 for the Safeguarding of Intangible Cultural Heritage, could be protected under the ICHC only if there is physical evidence related to the intangible cultural traditions listed in Article 10 of the ICHC.

Now, think about reproducing the David of Michelangelo in your brand advertising. Indeed, you might believe, it has fallen into the public domain, so it is free from any copyright protection, and you are not wrong. However, are you sure that the reproduction of this Italian monument is free? According to the provision of the ICHC, in particular Articles 107 and 108, the answer to this question can only be no[2].

Indeed, the works that follow under the definition of cultural heritage assets, as defined by Article 10 of the ICHC, are covered with a special protection against any unauthorized «reproduction» made for profit – interpreted broadly and including photographs of the goods. Under Article 108 of the ICHC, to reproduce such works, it is necessary to request a specific authorization from the administrative entity responsible for and holding the work. In case the administration, or Ministry of Culture, gives the authorization, the party interested in the reproduction must pay a fee to the first one, which is determined by each single administrative entity, based on the specific use, modality, and duration of the reproduction[3].

Such provisions, born with the purpose of preserving the Italian cultural heritage from damages caused by contact with casts and by the exposure to light sources, are now being interpreted as a sort of “pseudo-copyright” protection ad infinitum (and also as a right of the image of the work), and are almost unique if compared with other legislations, as the following recent Italian case law seems to affirm[4].

Indeed, article 107 of the ICHC takes care of the physical protection of the work and provides that:

«1. The Ministry, the Regions and the other territorial public bodies may allow the reproduction as well as the instrumental and precarious use of the cultural assets they hold, subject to the provisions of paragraph 2 and those concerning copyright.

2. As a general rule, the reproduction of cultural goods consisting in making casts, by contact, of the originals of sculptures and works in relief in general, of whatever material such goods are made of, is prohibited.

Such reproduction is only permitted in exceptional cases and in compliance with the procedures established by the special ministerial decree. On the other hand, casts from copies of existing originals, as well as those obtained by techniques that exclude direct contact with the original, are permitted, subject to authorization by the Superintendent«.

On the other hand, Article 108 of the ICHC addresses whatever reproduction of the goods, also the one that is not able to threaten the integrity and conservation of the original, meaning that in this case, the scope is no more the «protection» of the work of cultural heritage, but its «monetization» to grant museums, galleries, and Ministry the revenues needed and to avoid being dependent only form public fundings[5]. Indeed, Article 108 states that it is the authority in charge of the monument that decides the amount of fees to be payed, taking into account: a) the nature of the activities and uses, b) the means and modalities for 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 accruing to the applicant.

This constraint, although established by the ICHC,  can properly be qualified as a dominical right (i.e. «owner’s right»), but in fact, it is a right of use and behaves exactly like a form of copyright (more appropriately a connected right). Precisely for this reason, we and other authors call it «pseudo-copyright on cultural heritage», as some authors underlined[6].

Precisely for this reason, other authors and we call it «pseudo-copyright on cultural heritage». Nevertheless, Italian courts till now have never recognized this assumption, defining this obligation as an image right owned by the administrative entity that is holding the asset, as better explained hereafter.

Despite a specific definition of the kind of right granted by Art. 108 ICHC, under this provision, the entity responsible for the work of art has the discretion to concede or forbid the authorization to the reproduction of the work in return for a fee, only if the use is made for profit. Indeed, no fees or authorizations are required in case the reproduction is made for personal use or for educational or cultural reasons.

The main difference, and at the same time the main controversy, between this special right and copyright is the duration: the first one is limitless in time, while the second lasts only for some decades after the death of the author of the work – in Italy 70 years – before entering into the public domain.

  1. Public Domain and Copyright

Briefly and generally speaking, copyright protects literary and artistic works, aiming to promote science, culture, and the arts, by granting a bundle of exclusive legal rights over the authors, as long as their work complies with the requirement of being original. Ideas, concepts, and thoughts, as such, are not protected; what is protected is the particular/original form of expression of the author reflected or fixed in their work. Even if the concept of originality varies from country to country, in civil law countries (such as Peru and Italy), the originality criterion usually requires the work to reflect the author’s personality. Assessment of said requirement is higher than in common law countries, where the concept of originality varies from skill, labor, and judgment.

Copyright usually grants both economic and moral rights in favor of the author of an original work. Economic rights allow the authors the exclusive commercial exploitation of their works by reproducing, communicating, distributing, translating, and importing them, while moral rights protect the author’s personal interests in the work, granting on behalf of the author the rights of disclosure, attribution (paternity), integrity, modification or variation, access, and the withdrawal the work from the trade of their works.

The optimal design of intellectual property rights inevitably rests on the resolution to the fundamental trade-off between the need to reward the innovator and the need to diffuse the innovation[7]. The protection of original works under copyright is not an exception. Indeed, for example, the EU Court in Case C-5/08, mentioned that an “effective system for the protection of copyright and related rights is one of the main ways of ensuring that European cultural creativity and production receive the necessary resources and of safeguarding the independence and dignity of artistic creators and performers”. In that sense, copyright protection offers the authors an exclusive right over their work for a fixed period, after which said work will enter into the public domain to benefit society, promoting the creation of original works.

According to Article 7 of the Bern Convention for the Protection of Literary and Artistic Works, the term of protection granted in favor of the authors shall be their life and fifty years after their death. The referenced provision must be implemented by the countries members of the Union which have signed up to said Convention, in their national legislations. Likewise, as per Article 6 of the Bern Convention, the moral rights last all the author’s life, and after his death, in principle, must be maintained, at least until the expiry of the economic rights, and shall be exercisable by the person or institutions authorized by the legislation of the country where protection is claimed.

Hence, the exclusive economic rights provided to an author under the Bern Convention are temporal, while the moral rights might not be, such as in Peru and Italy, where they are perpetual.

At the Andean Comunity Level, to which Peru is subjected, the Andean Decision 351, attempts to harmonize the standards of the protection of copyright and related rights, which has been transposed in the Peruvian Copyright Law, Legislative Decree 822.

According to Article 52 of said Legislative Decree, the term of the economic rights shall be the author’s lifetime and 70 years following his death, regardless of the work’s country of origin, and shall be transferred on death under the provisions of the Peruvian Civil Code. Likewise, according to Article 21 of the Legislative Decree 822, moral rights shall be perpetual, inalienable,  unattachable, unrenounceable, and imprescriptible. The expiration of the period provided by Legislative Decree 822, according to Article 57, shall cause the economic rights to lapse and the work to fall into the public domain and consequently become part of the common cultural heritage (provided that they are expressly declared as such by the Deputy Ministry of Cultural Heritage and Cultural Industries).

The above means that after the fixed period of time of exclusive protection, the protected work falls into the public domain, and any person can, among others, reproduce, communicate, distribute, translate, and import it without the authorization of the author (economic rights – articles 30 to 40 of the Legislative Decree 822).

The rights that remain on behalf of the author, regardless of the expiration of the copyright over the work, are moral rights, so the ones of disclosure, attribution (paternity), integrity, modification, or variation, and access to the work, except from the author’s right to provide that his work is to remain anonymous or pseudonymous, and to withdraw the work from the trade (moral rights – articles 20 to 30 of the Legislative Decree 822).

Given the similarity between Peruvian and Italian legal systems, in Italy, there are the same provisions, regulated by Law No. 633 of 1941, 70 years for economic rights under Article 25 and unlimited moral rights under Article 20.

What does it mean that a work, after its expiration, enters into the public domain?

The public domain is made up of all works that are not protected by copyright, and that, therefore, can be used freely by anyone without asking for the author’s authorization or without having to pay any royalties, without, however, being able to infringe the moral rights – if recognized – of the authors. In the case of Peru and Italy, it means that all the economic rights over the work are exhausted. Therefore, works in the public domain can be freely copied, distributed, adapted, performed, and displayed in public, regardless of the way and form.

There are three typical ways in which works arrive in the public domain: i) the copyright protection has expired, ii) the works did not meet the requirements to be considered protected by copyright, or iii) the works were deliberately placed by the author into the public domain.

For example, the famous masterpiece «The Scream», painted by the Norwegian artist Edgard Munch in 1893, is currently part of the public domain, so it is freely reproduced on posters, art books, dolls, key chains, cartoons, and countless other products and souvenirs and even derivative works. The same will happen when the Steamboat Willie version of Mickey Mouse will enter the public domain in 2024.

The legislative purpose of letting a work fall into the public domain is to promote and disseminate culture and knowledge so that innovation and the creation of new works or forms of expression might arise among all the population. In other words, to find the balance between the monopoly/exclusive rights given to the authors for their original works, and the social impact of the dissemination of knowledge to increase social welfare and ensure cultural creativity.

At the European level, to which Italy is subjected, there are two important Directives that address the issue of the duration of copyright and the importance that reproductions of works of visual arts fallen into the public domain are devoid of copyright protection for the sake of cultural enhancement: Directive 2006/116/CE, which harmonize the duration of copyright protection across Europe, especially of economic rights till seventy years after the death of the author, and the more recent Directive (EU) 2019/790, which under Article 14, named “Works of visual art in the public domain”, provides that “when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work is not subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author’s own intellectual creation”. In this last Directive it is also affirmed in Whereas 53 that:

“The expiry of the term of protection of a work entails the entry of that work into the public domain and the expiry of the rights that Union copyright law provides in relation to that work. In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage. In the digital environment, the protection of such reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works. In addition, differences between the national copyright laws governing the protection of such reproductions give rise to legal uncertainty and affect the cross-border dissemination of works of visual arts in the public domain. Certain reproductions of works of visual arts in the public domain should, therefore, not be protected by copyright or related rights. All of that should not prevent cultural heritage institutions from selling reproductions, such as postcards”.

The above means that, ideally, a right similar in practice to copyright should not be allowed after falling into the public domain, and that neither the reproduction of these works could be protected or subjected to copyright and related rights.

In this framework, the following questions arise: is the said balance between monopoly and freedom of use being altered by the Italian provision on Cultural Heritage? Is the special Italian provisions for Cultural Heritage a way to extend the life of copyright protection with consequences even abroad? Is this really a “pseudo-copyright” protection of national cultural heritage against European law? Should Peru strongly protect its national cultural heritage as done by Italy?

Without the purpose of finding a definitive answer to all these questions, this article tends to visualize the situation which has mainly had an impact on the advertising, fashion, and gaming industries, which used some works of Italian Cultural Heritage for their products, believing they could freely do so since the works were fallen into the public domain, without considering they had to ask for authorization and to pay a royalty to museums, as required by the ICHC. The present situation is well enlightened by a few but relevant recent Italian case law detailed in the following chapter.

  1. Italian cases

In Italy, a few important cases were recently decided about the application of the ICHC and the commercial uses of famous and ancient works of art by unauthorized third parties, works that have fallen into the public domain, but that are subject to the special Italian provision mentioned above.

Three main cases were debated before the Court of Florence of first instance, passing through interim and merit decisions (even if not all of them are concluded), exclusively regarding the use of the world-famous statue of David, created between 1501 and 1504 by the Italian artist Michelangelo, a symbol of the Italian Renaissance, currently guarded and manages by the museum called «Galleria dell’Accademia» in Florence, protecting the work on behalf of the Italian Ministry of Culture.

The first decision of the Court of Florence was issued on October 26, 2017 (Interim order No. 13758/2017), in a case claimed by the Italian Ministry of Culture against the travel agency «Visit Today», which offered to its clients fast track access to some Florence museums including  Galleria dell’Accademia, advertising its services using an image of the statue of David on its promotional material (leaflets, brochures, and website), without requesting nor obtaining the required authorization under Article 108 ICHC. The Court recognized the violation of the Code provision and ordered the travel agency to stop the reproduction for commercial purposes of the statue in Italy, and all the European territories, destroying all the materials containing the infringing image, including the one published through their webpage, and the payment of a compensatory amount of money in favor of the Ministry.

The second case decided on April 11, 2022, No. 1910/2022, before the Court of Florence concerned the reproduction without authorization of marble statues identical to the David (despite having the head turned on the other side) by Studi d’Arte – Cave Michelangelo s.r.l. that was publicly assembled in Milan and sold to a fashion company for an advertising campaign of clothes. The video of the assembly made by Sky Cinema and the image of the statue was published on the internet and in magazines, and the judges recognized the «periculum in mora» given by the wide spreading of the reproduction online even if the first pictures were released four years before the claim. More importantly, in order to interpret the law without falling into the clash of ICHC rules and copyright limits, the judge argued that the ICHC created an independent image right owned by the museum/Ministry justified by the need for protection of the cultural destination of the work that could not be demeaned by advertising campaigns that have nothing to do with culture. The Court rejected the demand for an intervention on the European Court of Justice on the incompatibility of the Italian legislation with the Directive 2006/116, and now the decision on the merits is still pending.

In this regard, the Court stated that: «the use of the image of David on the website of a commercial enterprise, such as Studi D’Arte Cave Michelangelo srl […], which by virtue of its corporate nature undoubtedly pursues profit-making purposes, is suitable to debase the image of the cultural asset making it expire as a distinctive element of the qualities of the company which, through its use, promotes its image, with unquestionably commercial use, which could lead third parties to consider such free use lawful or tolerated.»

Therefore, the provisions stated by Articles 107 and 108 of the ICHC have a broader extension. They do not only protect the reproduction rights of original work, but also the image of the cultural assets (material heritage), and their evocative capacity and connection with history, nationality, or pertinence. In other words, said provisions have a non-patrimonial nature pertaining to the reproduction of cultural heritage/assets, which is part of the public domain.

Hence, the Court in the said case goes beyond just the analysis of whether the infringer company had or did not have the authorization and analyzes the damages said unauthorized use might generate: «The vulgarization of the work of art and culture and the reproduction without the preliminary scrutiny by the competent authorities with reference to the compatibility between the use and the cultural value of the work, creates the danger of irreversible damage for all those uses that the competent authority should judge incompatible, inhibiting them. In fact, since the damage to the image of the public work is also an immaterial damage to the cultural asset due to its collective value, already mentioned above and which will be further explored below, this value would suffer irreversible damage pending the definition of the cause of merit».

The third case regarding the David – and the first one on the merits – was defined by the Court of Florence on April 21, 2023, (decision No. 1207/2023), by adopting many points from the reported second decision. This time was a famous magazine that used the image of David, comparing it with a famous male model for an advertising campaign about the «modern Renaissance». The Gallery decided it did not want to allow this use characterized by a lenticular effect, and therefore the magazine which decided to publish the issue with the number of July-August without authorization was penalized with damages consisting of one year of royalties (20.000€) for pecuniary damages and 30.000€ for moral damages for the «degradation» of the work embodying the cultural values of the nation.

These last two decisions are particularly stunning since (i) the Court recognized a «sui generis» image right not on a physical person but on a work of art, (ii) Art. 108 ICHC was interpreted as if the administrative entities could give authorization to reproduction also for commercial uses only in the presence of a «public fruition», functional to the protection and enhancement of culture among the public, and because (iii) the Court does not seem to have the slightest doubt on the compatibility of Italian law with European provisions to the extent that it does not request the CJEU’s interpretive intervention. The basis for this newly qualified «image right» on goods is not crystal clear nor properly motivated, and the limitation to authorization only in the presence of cultural and public reasoning does not seem justified by the law, on the contrary leaves total freedom to the competent administrative authority, provided that the reproduction does not cause physical harm to the protected work. The decision on the merits regarding the Ministry of Culture vs. Studi d’Arte – Cave Michelangelo s.r.l. is still pending, and we will see if it will be different or more reasoned than the previous ones.

Recently, the Court of Venice also issued a decision on the Italian Cultural Heritage and its unauthorized reproduction on October 24, 2022. The complaint was raised by the Italian Ministry of Culture and the museum «Galleria dell’Accademia» of Venice, challenging the unauthorized use of the famous drawing of the Vitruvian Man, done by Leonardo da Vinci in 1490, against the German game company Ravensburger, which reproduced the picture of the drawing in its puzzles without asking for authorization. This case is relevant since Ravensburger was condemned in the first instance even though it was a foreign company that produced its puzzles abroad and only distributed them in Italy through a subsidiary. Therefore this precedent serves as a warning to all the companies based outside of Italy that are considering using for commercial purposes the reproduction in any form of a protected artistic asset included in Italy’s cultural tangible heritage: without previous authorization, you can be summoned in Italy given the civil procedure principle of «locus commissi delicti» according to which the seat of the case will be the one of the damaged party. Ravensburger was ordered to pay compensation to the Galleria dell’Accademia, and to cease the reproduction of the Vitruvian Man.

What is interesting is how this provision has also addressed the fashion industry; for example, recently, on October 2022, the Uffizi Galleries – the most famous museum of art in Florence – sent a cease and desist letter to the French fashion house Jean Paul Gautier, for the unauthorized use of images of Botticelli’s Renaissance masterpiece «The Birth of Venus», on its ready-to-wear capsule collection «Le Musée» created and put into the market by the said fashion house. Up to this date, the dispute has not been resolved nor settled.

  1. Conclusions and final thoughts

As explained above, in Italy, the Cultural Heritage regulation protects tangible cultural assets, preventing their unauthorized reproduction, even if they are part of the public domain. The purpose of these provisions is not just to protect the Italian Cultural heritage, but also to valorize or enhance those assets by restricting and monetizing them.

From our point of view, the way the Italian courts are implementing the said provisions should be reviewed, so they do not turn into pseudo copyright protection granted for original works which are part of the public domain, otherwise the equilibrium in the trade-off between rewarding the creation and the dissemination of knowledge could be broken. Indeed, the Italian provisions, as Courts are applying them, appear to be a de facto property right on works part of the public domain, which use can be authorized or given as related rights.

Likewise, we considered that establishing criteria to apply the special Italian provisions is necessary to preserve the system’s predictability and eliminate any uncertainty around using the Italian cultural heritage, which is part of the public domain, in the market. The public domain must not be restricted -a fortiori- and with no preclusion rule, outside of copyright and related rights law.

The above is really important, moreover nowadays, in a context where the fashion, gamming, and advertising industries is growing and is being more spread worldwide, and can be -as it has been- an important tool to enhance traditional or classic works of arts. We consider it is the responsibility of the State to protect and prevent the misuse of the Cultural Heritage; however, the provisions to achieve those goals must be proportional and reasonable. Therefore, while in Italy, the application of said provision shall be predictable and reasonable, in Peru, the State should assess the proportionality to incorporate similar measures to protect the Peruvian Cultural Heritage, which, as explained, allows the country to have more control in the protection of their cultural heritage.



[2] ALIPRANDI, Simone & Carlo PIANA. Tutela dei beni culturali e lo strano caso di Studi d’arte Cave Michelangelo (free translation: Protection of cultural heritage and the strange case of Cave Michelangelo art studies) In: Diritto Available at: Date of review: May 8, 2023.

[3] Ibid.

[4] Ibid.

[5] Sbarbaro, E., Codice dei Beni Culturali e Diritto d’Autore: recenti evoluzioni nella valorizzazione e nella fruizione del patrimonio culturale, in Riv. Diritto Industriale, fasc.2, 2016, p. 63; De Meo, R., La Riproduzione Digitale delle Opere Museali fra Valorizzazione Culturale ed Economica, in ​​Dir. dell’Informazione e dell’Informatica (Il), fasc.3, 2019, p. 669

[6] Idem 6.

[7]  DENICOLÒ, Vincenzo & Luigi Alberto Franzoni. Rewarding Innovation Efficiently- The case for Exclusive Rights. Chapter 9 in Competition Policy and Patent Law under Uncertainty Regulation Innovation. Edited by Geoffrey A. Manne, Joshua D. Wright. Cambridge Books Online. Book DOI: p. 289.

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