Vincenzo Iaia
After a consultation with the Italian Film Commission, the Directorate-General for Cinema, and other stakeholders, the Italian Ministry of Culture issued the Decree No. 161 of April 13th, 2023, a set of guidelines for the calculation of minimal tariffs linked to the exploitation of cultural works under the custody of Italian institutions. The Decree provides specific criteria for each kind of exploitation starting from a main distinction between the reproduction of cultural works and the use of the space(s) where cultural works are located.
As regards the former category, the Decree differentiates between non-profit reproductions, reproductions for profit, and commercial digital screen printing. For the latter, there is a bipartition between the use of cultural spaces for personal purposes and that for commercial purposes, also distinguishing between the use for film footage or for photo shootings. There are some specific hypotheses, such as the association of cultural works to Non-Fungible Tokens (also known as “NFT”). While this use is characterized by the highest license rate (from 90% to 99%), it witnesses the Government’s intent to keep pace with the market and technological developments.
The new legal framework attracted several critics from archives and cultural associations, especially because it also introduces fees for research purposes 1 . Therefore, cultural institutions may obtain profit also from the exploitation of cultural goods for scientific activities. This could be in tension with Art. 13 of the EU Charter of Fundamental Rights, according to which “The arts and scientific research shall be free of constraint”. It seems more reasonable to reduce the license fee for scientific purposes to the actual cost borne by the cultural institution.
Aside from this aspect, the Decree is a welcome intervention since it grants more transparency concerning the exploitation of cultural works because their caretaker will be obliged to publish a table containing the tariffs for each use. It represents, without doubt, positive news for businesses, especially those from foreign countries, considering that the public tariffs will reduce the discretion of custodians in deciding whether and at which conditions the cultural works can be exploited. Hence, for instance, companies will be able to estimate the price for associating their trademark(s) to a specific cultural work without waiting for a response from its custodian. Movie studios will be likewise able to predict the cost of shooting some scenes in a certain space.
In conclusion, it is true that the new governmental intervention in Italy deserves some refinement, notably to foster the dissemination of knowledge in a world where open-access techniques are gaining ground on proprietary mechanisms. However, it can be appreciated inasmuch as it enhances legal and market certainty for the use of cultural works while allowing their caretakers to recoup the maintenance costs and eventually invest in new artworks. It should be also recalled that the stricter rules established by the Italian Cultural Heritage Code compared to other legislations mirror the richer cultural patrimony located in Italy. According to the UNESCO World Heritage List Statistics, Italy registered the highest number of world heritage sites (58) 2 . Hence, the new Decree, after some fine-tuning that will broaden the scope of free uses, is likely to strike a fair balance between exclusive protection and the public promotion of cultural works housed in Italian institutions.
[1] M. Pirelli, Concessione d’uso dei beni e degli spazi culturali: il MiC detta le tariffe, 24 Arteconomy, 13 maggio 2023, reperibile al seguente link: https://www.ilsole24ore.com/art/concessione-d-uso-beni-e-spazi-culturali-mic-detta-tariffe-AESxH6SD.
[2] UNESCO, World Heritage List Statistics, available at the following link: https://whc.unesco.org/en/list/stat.
