Here’s a puzzle: when is the public domain not in the public domain?

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 unauthorised 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.

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