The transposition process
The transposition process kicked off in Italy on 14 February 2020. After a legislative act authorised and guided the Government to change the law as required by the new European Union Directive, a draft of a legislative decree by the Ministry of Culture followed, to which the Standing Advisory Committee on Copyright provided input. A new legislative decree’s final draft was published on 27 November 2021, and came into force on 12 December 2021.
Representatives of the cultural heritage sector followed the process closely by providing input, suggesting amendments and participating in informal hearings. Unfortunately, many were not taken on board and some relevant stakeholders were excluded from the final hearings, which made the process appear rather opaque.
Text and data mining
The provisions on text and data mining in the CDSM Directive give researchers who have legal access to materials (such as in archival collections) the freedom to undertake data analytics without needing to ask for permission, even if the materials might be in copyright. This cannot be forbidden by contract: for instance if a university subscribes a licence to access a database and the provider includes a clause that forbids doing data analytics on the database, the clause is not applicable. Beyond research purposes, the use of (in copyright) materials that are legally accessed is also possible, under the condition that the rights holder does not ‘opt out’.
There are a few choices that Member States could make when bringing this into their national law. In particular, the Italian legislator went beyond the text of the Directive to authorise the possibility to share the outcomes of the research (if expressed through new original works), a welcome addition.
Unfortunately, no clarification was provided on what the ‘opt out’ by rights holders should look like. No additional conditions were established on how researchers and others should store the copies they made to conduct text and data mining, nor on the measures by rights holders to ensure the safety and integrity of the networks and databases where the materials mined are hosted.
Preservation of cultural heritage
The CDSM Directive makes it mandatory for all Member States to put in place an exception to copyright for preservation - the authorisation to make copies of materials that might be in copyright, without the need to ask the rights holder for permission. That is under the condition that they are permanently held in the collections of the cultural heritage institutions, and only to the extent necessary for preservation. These copies can be done in any format or medium, and cannot be limited through a contract.
The Italian copyright law now recognises this exception, which represents an improvement from the previous provision on preservation in Italy, which limited the medium to photocopying. There is no clarification on what should be understood by ‘permanently held’.
Digital and cross-border teaching activities
The current provisions on teaching activities in the Italian copyright law establish that copyright-protected materials can be used for digital and cross-border teaching activities, without having to pay for them. This cannot be forbidden by contract. So, for example, a teacher could post part of a poem in a school’s online system, to be accessed by students from another country, without needing permission from the rights holder.
However, this is limited to the use of parts of materials, and under the responsibility of an educational establishment, on its premises or at other venues, or through a secure electronic environment accessible only by its pupils or students and teaching staff. This concept is not clarified.
This exception does not apply to material primarily intended for the educational market or to sheet music where a licence needs to be acquired instead. This is as long as these are available on the market for the use of such materials, they cover the needs of the educational establishments and are easily known and accessible.
Out of commerce works
Out of commerce works are works that are likely in copyright, that sit in the collections of cultural heritage institutions, but are no longer, or were never, available commercially. The Italian copyright law now provides for a system based on a licence and an exception to allow cultural heritage institutions to make out of commerce works available online without the need to ask for (further) permission.
In order to determine what is and isn’t out of commerce, the Italian text establishes that works not available in commercial channels for at least 10 years are presumed to be out of commerce. A reasonable effort to determine that something is out of commerce needs to be conducted in good faith and ‘professional correctness principles’, and through consulting appropriate sources of information. A decree of the Minister of Culture can identify further specific requirements to define out-of-commerce works after consultation with the rights holders, collective management societies and cultural heritage institutions.
Cultural heritage institutions can only rely on an exception to copyright when the materials at stake are software or databases, and if no sufficiently representative collective management organisation exists. In such cases, no licence or permission from the rights holder is needed. For all other out of commerce materials, a licence with a collective management organisation needs to be obtained in order to rely on the legal solution of the Directive. This unfortunately goes slightly against the text of the CDSM Directive, which does not limit the exception to software or databases only.
The use has to be for non-commercial purposes, and in the case of materials used under the exception, shared via non-commercial websites only. Rights holders can opt their materials out of this system anytime by giving notice to the collective management organisation who issued the licence. In case of harm resulting from a particular use, the right holder has the right to request compensation.
The Public Domain
In Italy, the transposition of the public domain provision is very faithful to the text of the Directive, which establishes that no neighbouring rights for ‘non-original’ photography can be claimed on digitised copies of works of visual arts that are in the public domain.
Works of visual arts are not defined, but a reference is made to a non-exhaustive list of possible types of works under this category. There is no limitation or reference to the format of the resulting reproduction, nor to the application in time of the rule (whether it has a retroactive effect or not).
There is however a clarification that this new provision does not override the provisions in the Italian Cultural Heritage Code. These establish that the reuse for commercial purposes of digital reproduction (both original or faithful) of cultural heritage in the public domain is not possible. For such uses, it is compulsory to pay concession fees calculated by the authority that has them in custody. This represents a barrier to the reuse of public domain material. However, the National Matera Museum recently made a significant step forward by setting the legal fee at zero for a small collection of Etruscan vases. Recently, Senator Margherita Corrado presented a Parliamentary Question considering Matera Museum's decision against the law regarding art. 108, which now awaits response but can set an important precedent.
Find out more
If you would like to be the first to hear about these developments, network with peers and learn more about copyright and digital cultural heritage, join the Europeana Copyright Community and follow our CDSM Directive series through Europeana Pro news.
You can also read this post in Italian on the Creative Commons Italia website.