The integral reproduction of images of works of art in an informatic catalogue is not free

With the annotated judgment of February 8th 2022 no. 4038, the Italian Supreme Court of Cassation dealt with a case of images of works of art being fully reproduced in an informatic catalogue for illustrative purposes but not related to teaching or scientific research purposes.

The Supreme Court which, facing once again the theme of the free use of extracts (written, visual or sound) of works protected by copyright, declared that the reproduction of images of works of art in an informatic catalogue without the authorization of the rights holders succeeding the late painter, is not included among the free uses provided for in art. 70 of the Law no. 633 of April 22nd 1941 of the Italian Copyright Law.

On this occasion were dictated the “guidelines” useful to evaluate when the reproduction of images of works of art is free or not.

On the basis of the general principles regulating the free use and on the basis of what established in the annotated judgement, it can be stated that:

  • for what concerns the exploitation of the right on the intellectual property, it is the norm to recognize to the author (and/or to the holders of the right) the exclusive use of these rights (of publication, reproduction, diffusion and communication to the public…)
  • 70 of the Italian copyright Law allows in some cases an exception to the ordinary regime providing, in comma 1, that “the summary, the quotation or the reproduction of songs or parts of the work and their communication to the public are free if used for critic or discussion purposes, within the limits justified by such purposes and provided that they do not constitute competition to the economic exploitation of the work; if performed for teaching and scientific research purposes the use must be carried out moreover for illustrative purposes and not for commercial ones”.
  • The integral reproduction of images of works of art, even for cataloguing purposes, does not benefit, according to this judgment, from the regime of free uses for several reasons also of general origin. In fact:
    • i) in order to be free, each reproduction of parts of a copyright protected work must be carried out in respect of art. 70 of the mentioned norm that is such reproduction must be instrumental to the purposes of critic and discussion of the user and if it happens for illustrative purposes, such reproduction must be correlated to teaching and scientific research activities;
    • ii) a full reproduction not restricted to specific details of the work itself, like the one under exam, can hardly be considered as free reproduction;
    • iii) in no case can the reproduction of images of works of art put itself in competition with the economic use of the work itself which belongs to the holder of the relative copyright. In fact, the economic rights which can be used by the holder comprise: a) the right to publication in a collection as the case of an informatic catalogue and b) the right to multiply copies of the work physically identical to the original with the relative economic use. This means that also the photographic reproduction, on scale, of copyright protected works is suitable to be in competition with the exploitation rights which belong to the holder.

This judgement confirms the jurisprudential practice that, complying with the normative principles, limits the cases of free use of the rights on a work of art to few, strongly regulated, situations as referred to in art. 70 of the Italian Copyright Law.

Maria Luisa Milanesi