Italy Decides That Leonardo da Vinci’s 500 Year Old Works Are Not In The Public Domain

from the locking-up-the-public-domain dept

Walled Culture is a big fan of the public domain. The amazing artistic uses that people are able to make of material only once it enters the public domain are an indication that copyright can act as an obstacle to wider creativity, rather than something that automatically promotes it. But there’s a problem: because the public domain is about making artistic productions available to everyone for no cost and without restrictions, there are no well-funded lobbyists who stand up and defend it. Instead, all we hear is whining from the copyright world that the public domain exists, and calls for it to be diminished or even abolished by extending copyright wherever possible.

Sometimes those attacks can come from surprising quarters. For example, in October last year Walled Culture wrote about Italy’s Uffizi Galleries suing the French fashion house Jean Paul Gaultier for the allegedly unauthorized use of images of Botticelli’s Renaissance masterpiece The Birth of Venus on its clothing products.

Sadly, this is not a one-off case. The Communia blog has another example of something that is unequivocally in the public domain and yet cannot be used for any purpose, in this case a commercial one. The public domain art is the famous Vitruvian Man drawn by Leonardo da Vinci over 500 years ago.

The commercial use is as the image on a Ravensburger puzzle. As the Communia blog post explains:

According to the Italian Cultural Heritage Code and relevant case law, faithful digital reproductions of works of cultural heritage — including works in the Public Domain — can only be used for commercial purposes against authorization and payment of a fee. Importantly though, the decision to require authorization and claim payment is left to the discretion of each cultural institution (see articles 107 and 108). In practice, this means that cultural institutions have the option to allow users to reproduce and reuse faithful digital reproductions of Public Domain works for free, including for commercial uses. This flexibility is fundamental for institutions to support open access to cultural heritage.

This makes a mockery of the idea of the public domain, which to be meaningful has to apply in all cases, not just in ones where the relevant Italian cultural institution graciously decides to allow it. The fact that this law was passed is in part down to the success of the copyright industry in belittling the public domain as an aberration of no real value – something that can be jettisoned without any ill effects. However:

These cases are bound to leave wreckage in their wake: great uncertainty around the use of cultural heritage across the entire single market, hampered creativity, stifled European entrepreneurship, reduced economic opportunities, and a diminished, impoverished Public Domain. To address these issues, we hope the European Court of Justice will soon have the opportunity to clarify that the Public Domain must not be restricted, a fortiori by rules outside of copyright and related rights, which compromise the European legislator’s clear intent to uphold the Public Domain.

Let’s hope the Court of Justice of the European Union does the right thing, and defends the incredible riches of the public domain against every depredation – including those by Italian cultural institutions.

Follow me @glynmoody on Mastodon or Twitter, originally posted to the Walled Culture blog.

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Comments on “Italy Decides That Leonardo da Vinci’s 500 Year Old Works Are Not In The Public Domain”

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This comment has been deemed funny by the community.
Anonymous Coward says:

Next step: the Vatican starts demanding retroactive royalty payments from anyone who ever published the New Testament in any language.

Next next step: the Israeli ministry of culture starts demanding retroactive royalty payments from anyone who ever published the Old Testament in any language….

John says:

Re: Re: Re:2 Re stole

Well let’s look at it this way. It was. It the USA it was the Europeans that populated this country. Most of those were people that were not welcomed in their homeland. More wars and bloodshed was done throughout Europe than in USA. Where would Europe be without the USA or better yet what would your country be without the USA interventions. We do not need to slam any one country as we all have terrible pasts. We are all like little children fighting over toys with no supervision.

Anathema Device (profile) says:

Re: Re: Re:2

  1. Which cowardly arsehole are you? Do you think I feel like answering every twit who pops up without bothering to sign in?
  2. If you want to do the work this time and look up the letter of Italian law, you go right ahead. You buggers are way too lazy to be bothered attempting to educate.
  3. It’s not a stupid decision under Italian law. It’s a stupid decision under the Berne agreement. I suggest you do the legwork and tell us all how this time.
Anonymous Coward says:

Re: Re: Re:3

  1. You answered every one of them the last time, I genuinely thought you’d be interested.
  2. See, I expected you to call me lazy. It’s not difficult to see how there’s no pleasing you.
  3. How would you know this? You’ve apparently done the legwork. I don’t believe it’s a far stretch for you to explain it.
Anathema Device (profile) says:

Re: Re: Re:4

“You answered every one of them the last time”

And look where it got me. A lost, frustrating weekend.

“How would you know this?”

I read the post. Did you?

Not doing this again. You can chase it up if you’re interested, but you’re not. You just want to kick me because I dared to try and parse out a different copyright decision, and on this blog, there must be no suggestion creators have any rights.

Learned my lesson, so you can piss off.

This comment has been deemed funny by the community.
Anonymous Coward says:

That’s great! I’m sure that da Vinci’s heirs (or successors in interest) will treat this economic incentive as such, and start creating a lot more content. We’ll all be treated to many more “Monas”, and more entries in the “Chapel” franchise!
We can build better billing technology so that the so-called public domain isn’t necessary. All content creators and their heirs or successors in interest can be incentivized correctly.

Michael Steven Fruchtman says:

Re: Re:

The Palestinian Ministry of Culture routinely claims various Jewish artifacts or locations as “Palestinian”, “Muslim”, or “Arab” heritage as part of a delusional bid that Jews have any heritage to the region. Or if a shared heritage, that it is only theirs.

The most famous demands are repeated demands to give them the Dead Sea Scrolls, usually to foreign governments when on tour abroad outside of Israel.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

'Protecting' culture into irrelevance and obscurity

According to the Italian Cultural Heritage Code and relevant case law, faithful digital reproductions of works of cultural heritage — including works in the Public Domain — can only be used for commercial purposes against authorization and payment of a fee.

A code that includes ‘cultural heritage’ in the name striving to deprive the world of both unless it’s paid for, the author of 1984 would be proud/horrified by such a sterling example of Newspeak I’m sure.

This comment has been deemed insightful by the community.
Anathema Device (profile) says:


It’s transparently unenforceable outside of Italy, but this kind of thing shouldn’t be dismissed as silly.

This is the fascist idea of cultural superiority and uniqueness being imposed, much as the Aryan ideal was central to Nazi propaganda. The current Italian government is not benign in any of its actions.

Peter Gerdes says:

Re: Re: How so?

Yes it’s probably unenforceable outside Italy in a sense but jurisdiction is complex. If you put it on a website (or worse if u sell via marketplace operating in Italy) they could make a plausible claim that you availed yourself of Italiaj jurisdiction and then ask courts in your home country to enforce the judgement. I believe the US has a specific law (drafted to protect against UK libel tourism) that directs us courts not to enforce judgements that would unduly burden US person’s free speech rights.

However, I’m not seeing the ethnic or even cultural superiority angle. I mean it just sounds like they are trying to make a buck off their history (usually the superiority ppl try to foist their culture on others). But maybe I’m missing something.

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K says:

Nintendo used the exact image of the Vitruvius Man in Animal Crossing: New Horizons. You can buy all kinds of historically significant art for your museum, so I’m sure there’s more culturally significant Italian art in there.

I really want to see a copyright battle suit between Italy and Nintendo. Nintendo is the Disney of video games, it’ll be fantastic.

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Drew Wilson (user link) says:

The War on Fair Dealing and the Public Domain

It was always disgusting the push to basically repeal anything that isn’t under copyright and put those works back in the hands of the private sector. Whether it is denying works from falling into the public domain by endlessly extending copyright terms or rolling back uses that are permissible under copyright law (ala Fair Use). An example of the latter would be ContentID on YouTube where work that has a clear cut case for Fair Dealing would be subject to copyright extortion.

Link taxes are another example. The idea of referencing material is settled and is classified as fair use/fair dealing (depends on the country of what you call it). With link taxes, we are trying to undo this basic aspect of copyright law by declaring that simply referencing work, even by merely linking to it, requires payments. That is not how any of this works.

There was also an attempt to put the law under copyright protection (which mercifully got smacked down in the courts in the US) at one point.

Now we get graced with this example where works that are obviously in the public domain are being somehow, uh, “reclaimed” (?) as works that are protected under copyright law even though it clearly is not.

It just seems that basic perfectly legal use of work is under constant threat from all sides. It’s a sucky situation and I hope these efforts end badly for those who are trying to overturn basic common sense in the world of copyright.

This comment has been deemed insightful by the community.
nerdrage (profile) says:

so who is the fee being paid to, and why?

Okay let’s say DaVinci’s works aren’t in the public domain. His descendants (if any) would own the works. Why in the world should a government get their paws on a individual artist’s works just because he happened to be born in the country (and “Italy” has morphed quite a bit since DaVinci’s time so the nation we know as italy now didn’t even exist then.)

There has been a lot of Italian immigration to the US. Why shouldn’t the US therefore claim a percentage of DaVinci’s work? Does copyright inhere in DNA or in dirt?

Anonymous Coward says:

Re: Re: Re:

Copyright was designed to enable transfer of rights from a creator to a publisher, and is relevant to creators beyond that only if they have the time and money to actually police their own copyrights. Fans will support a creator whose works appeal to them regardless of whether copyright exists or not, as they want more works.

Also consider that prior to the Statute of Anne, there was no copyright to protect works, yet works were created, and pre printing pres, works only spread and survived because people invested the time in copying, and a university education came with one key facility, a library where the reference works for a field were available for the student to copy.

Stéphane says:

I totally understand Italy

I am a techie, and have been an open source supporter and contributor for decades, and I think this decision makes a lot of sense.

The Italian decision doesn’t prohibit anyone to use this logo, it prevents companies from doing so. Not even any group or community but for profit companies. And all they ask is that in this case some part of the profit also goes to the Italian people who collectively owns this piece of art.

What is wrong with that ?
Where does it infringe any idea of open sourcing or public domain ?
They just ask the profits to be shared.

I am very bugged to see so much open source software making the fortunes of silicon valley companies, for free. It doesn’t help, or very marginally, the open source movement, it doesn’t help software developers or education systems or the society in general. Companies just take it and make money out of it. It unfortunately looks a lot like free labor. Of course, as free software développers our egos are satisfied and we can very probably get some fame and in some cases some career boost.

But true public domain and open source advocates have mostly lived as poor developers, without making big bucks, unless they turned to the private sector. While companies made billions by using free software in their stacks or phones..

I argue that this software development and open sourcimg is not what working for the public means or, at the least, I am very surprised to see that no one in the tech world can even consider that Italy might actually be inspiring, or at the very least find a ground for their point of view.

When we collectively own the oceans of the climate of the earth, it’s impossible to fund anything because no one wants to pay for conservation.
But when we produce collectively the best software and ideas, then they can be used for profits and for free ??
What a silly dissimetry ! The public interest does exist as does the public hability to own things, and to produce things.

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