In April 2023, the Italian Ministry of Culture launched a set of guidelines and tariffs for the exploitation of cultural works under the custody of Italian institutions. In our comment of the ministerial order, we welcomed the guidelines (here) inasmuch they ensure more transparency and legal certainty in this market. However, we highlighted the need for some fine-tuning to broaden the scope of free uses, in compliance with the international virtuous trends of preferring open access techniques over traditional proprietary mechanisms.
With the resolution of 20 October 2023, No. 76/2023/G the Italian Court of Auditors delivered a negative opinion about such guidelines, stressing their contrast with the current objectives of maximizing the digitalization, enhancement, and diffusion of cultural works. The Court pointed out that the efforts by the Ministry of Culture in the digitalization of cultural works were predominantly oriented towards the protection of cultural heritage rather than its enjoyment by the society at large. This approach is in countertrend with the European lawmaking on open access techniques, lastly the Public Sector Information Directive (No. 2019/1024), aimed at ensuring the free circulation of the digital reproductions produced by the cultural heritage institutions.
The Court of Auditors highlighted that Open Access has proven to be a powerful multiplier of wealth not only for cultural institutions (as evidenced by well-known national and international best practices) bus also in terms of increasing GDP. It is therefore considered a strategic asset for the social, cultural, and economic development of EU countries. According to the Court, the introduction of such a tariff system seems to overlook both the concrete operation of the web and the potential harm to the community, measured also in missed opportunities. This would contrast also with the guidelines set forth in the National Digitalization Plan for cultural heritage.
Moreover, the digitalization of cultural heritage has not only the potential to develop specific scientific knowledge considering that it can represent a powerful factor for general cultural growth. One positive return is for example the enhancement of tourism in various regions. In this regard, the National Recovery and Resilience Plan offers the opportunity to invest significant resources in infrastructure, upskilling, increased digital resources, and the development of new services for citizens.
The unfavorable opinion by the Italian Court of Auditors, together with the pleas from several cultural professionals and associacions1, may lead the Ministry of Culture to revisit its position and therefore expand the area of free uses. It should be also considered that the guidelines establish basements (minimum tariffs) rather than ceilings (maximum tariffs) and this latter option merits further exploration in the spirit of facilitating the massive circulation of knowledge embedded in cultural works.
 See AISA, Corte dei conti e open access alle immagini dei beni culturali, 25 November 2023, available at https://aisa.sp.unipi.it/corte-dei-conti-e-open-access-alle-immagini-dei-beni-culturali/; S. Segnalini, F. Caponigri, Le line guida sul diritto all’imagine dei beni culturali sono fuori dal tempo, in Domani, 2 June 2023, available at: https://www.editorialedomani.it/giustizia/le-linee-guida-sul-diritto-allimmagine-dei-beni-culturali-sono-fuori-dal-tempo-kl4shahp; D. De Angelis, The Italian Court of Auditors renews its support for Open Access, in Medium, 29 November 2023, available at: https://medium.com/@avvdda/the-italian-court-of-auditors-renews-its-support-for-open-access-dd5f80553e28.