The Italian transposition of the CDSM Directive: A missed opportunity?

A Coastal Ruin in Italy
Italian implementation must include Article 14!
Licentie

On April 20, 2021, the Senate of the Italian Republic gave its final approval to the Law which authorises the transposition of the 2019 Copyright in the Digital Single Market (CDSM) Directive in the Italian Law. In this Guest Article Deborah De Angelis (Creative Commons Italy) and Federico Leva (Wikimedia Italy) recap the Italian process of transposition so far, outlining the next steps of the procedure and taking a closer look at the implementation of the public domain provisions (Article 14) of the Directive.

What has happened so far?

The freshly approved European Delegation Law is a legislative act that authorises and guides the Italian Government to transpose EU Directives and framework decisions into the Italian National Law. Such a Delegation Law must be proposed by the Government at the beginning of each year, with the approval of the European Delegation Law by both the Senate of the Republic and the Chamber of Deputies often taking a long time and occasionally exceeding a year.

Once the Delegation Law is approved, the Government can issue the related Legislative Decrees in order to change the existing laws and adapt them to the European rules. Since the approval of the delegation law and until the adoption of the Legislative Decrees, no change in law actually happens. Such Legislative Decrees are very quick to set into motion, as the Parliament has a few days only to object them; however, sometimes it happens that the Government waits a long time before issuing the Decrees, or it even neglects to issue any of them, forcing the  Parliament to reiterate the Delegation Law  a year later.

Between April 28, 2020 and June 8, 2020, various stakeholder organizations  were listened by the 14th Standing Committee (European Union Policies) during a series of informal hearings, and the related documents and proposals were published by the Senate.

Cultural heritage institutions and civil society associations requested a broad and harmonized implementation of all the mandatory exceptions provided by the European Directive (e.g. text and data mining, digital and cross-border teaching activities, conservation, out of commerce works) as well as an effective implementation of the principle on the protection of the public domain as stated in Art. 14 .

Following the auditions, a number of  amendments to Article 9 of the European Delegation Law (which deals with the implementation of the DSM directive)  were proposed but eventually , most of them were withdrawn while only a  few of them were replaced by non-binding motions.

On October 29, 2020 the European Delegation Law was approved by the Senate and sent to the Chamber of Deputies.

Following the end of term of Conte II Cabinet and the establishment of the new Government led by Mario Draghi, the work pace of the transposition drastically slowed. Some institutional positions were confirmed, such as the Minister of Culture, Dario Franceschini.

The Delegation Law was eventually approved on March 20 2021, by the Chamber of Deputies but the text needed to be approved again by the Senate due to an amendment on a part not related with the DSM Directive. The final approval from the Senate was given on April 20, 2021. 

At the time of writing, the law has been promulgated and it will enter into force on May 8, 2021.

Copyright and the Public Domain in the delegation law

The Delegation Law lists a number of directives to be transposed, but it only gives guidance about some of them, including the implementation of the CDSM directive – addressed in Article 9. 

Article 9 of the implementation law provides the principles for the transposition of articles 3, 5, 8, 10, 15, 16, 17, 20 and 22 of the CDSM Directive only. As a result, the  implementation law doesn’t include the transposition  of Article 14 on the protection of the Public Domain – even though the Italian Law provides a series of norms of different nature on the restriction of images reproducing cultural heritage in the public domain, both in the form of related rights (Italian Copyright Law L. n. 633/1941, articles 87-88) and in the form of other types of limits (Italian Cultural Heritage Code 42/2004, art. 108).

It’s important to note that the rule expressed at Recital 53 provides that “all of that should not prevent cultural heritage institutions from selling reproductions, such as postcards”, and therefore does not limit the principle of article 14. On the contrary, the option provided  by Recital 53 must be considered as a parallel to the principle of protection of the public domain as provided by Article 14.

The meaning of Art. 9 also needs to be read in the broad context: Art. 1 defers to the general principles on the implementation of EU law, as written in law 234/2012, which in turn refers to the Constitution. Art. 32 of law 234/2012, at 1(b), 1(c) and 1(e), provides some additional guidance: it both allows and requires to change any pre-existing law and non-legislative acts; it explicitly prohibits to keep or introduce any restriction which goes beyond the minimum required by EU law (in the original Italian: «non possono prevedere l’introduzione o il  mantenimento  di  livelli  di regolazione superiori  a  quelli  minimi  richiesti  dalle  direttive»).

There is no doubt that the current laws on the reproduction of public domain works in Italy are more restrictive than what is required by the relevant EU Law, therefore the Italian Government has no space  to opt for keeping such a restrictive law.

Conclusion

The European Delegation Law does not explicitly mention the implementation of Art. 14,  but in order  to achieve an effective  transposition of it in the  Italian Law it is necessary to modify all those state laws and other acts representing a limit to the free use of visual artworks in the Public Domain. A distracted or negligent Government might ignore this requirement, but parliamentary proceedings indicate that Parliament is well aware of it and that it did not give its blessing for the Government to ignore it.

We are afraid that a simple copy and paste transposition of  Article 14 may not be able to achieve the effects as encouraged by the Directive. In such a scenario, the achievement of a European Digital Single Market for the free reuse of faithful reproductions of visual artworks in the public domain seems to be far from possible, despite it being one of the main goals of the Directive. Italy would therefore be considered a not-implementing country for not having implemented the letter nor the spirit of the Directive: this would be highly unfortunate as it would require additional work later.

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