[Wiki Loves Monuments] MIBAC agreement for Wiki Loves Monuments in Italy

Thu Sep 13 12:56:45 UTC 2012

Dear all,

Great news from Italy! After over one year of talks between Wikimedia
Italia and MiBAC, the Italian Ministry of Cultural and Artistic Heritage
(MiBAC is a quasi-acronym from its official Italian denomination "Ministero
per i Beni e le Attività Culturali"), we have managed to sign an agreement
which will allow us to participate to Wiki Loves Monuments in a much
broader way that we could before. MiBAC explicitly states in the agreement
that *«the Ministry considers particularly useful, in order to promote
awareness of such goods [the ones managed by the Ministry - note that this
is different from "owned by the Ministry", see below], the production of
specific items about them on wikipedia.org, in all its languages, and the
publication of images on Wikimedia Commons, at the site
http://commons.wikimedia.org.»
<http://commons.wikimedia.org.xn--yba/>* Moreover,
it will explicitly ask to its local branches to give us the list of
"lesser" monuments, those which are not usually known but are nonetheless
beautiful... and poorly described in Wikipedia. Italian law however puts
some constraints unrelated to copyright issues: this means that the
pictures uploaded must bear the the template {{Italy-MiBAC-disclaimer}}[1].
The text of the disclaimer is shown below; to understand what it actually
means we put up this text, which provides a bit of context about the
history of the agreement and the Italian law.

As you know, Wiki Loves Monuments started in 2010, and went European in
2011. Wikimedia Italy wanted to participate to that edition, but we
discovered a great obstacle to the project, a law called "Codice Urbani"[2].

"Codice Urbani" is an Italian law which states, among other provisions,
that to publish pictures of "cultural goods" (meaning in theory every
cultural and artistical object/place) for commercial purposes it is
mandatory to obtain an authorization from the local branch of the Ministry
of Arts and Cultural Heritage, the "Soprintendenza"[3]. The Superintendence
can require the payment of a fee; moreover, the authorization granted is
will be for the requester only (usually a publishing company) and only for
a given publication. Personal use and use for study and research are
allowed without a request for authorization. You certainly noticed that
Codice Urbani is problematic for a smooth realization of Wiki Loves
Monuments. In fact, I can make pictures of monuments I can give up my
copyright allowing others to copy my image without requiring my explicit
permission; but the Codice Urbani says that if I want to publish those
picture a fee can be requested to me, so anyway a third party can't make
profit out of my picture without asking in advance an authorization to the
Soprintendenza. This issue is completely independent from any issue
regarding copyright: Coliseum and the Leaning Tower fall (no pun intended)
under Codice Urbani. So we were in difficulty in organizing a photocampaign
in Italy and asking people to (potentially) break the Italian law, since
the unclear points where many.

We started challenging this problems in Summer 2011: we contacted people
from the Ministry, we set up a draft of the project, we met once in Rome to
speak with high delegates. To make a long story short, we managed to obtain
the promise of receiving the lists of the monuments which could be
photographed: but then things slowed down, our contacts were moved to other
offices, and the Ministry himself (who was aware of the project) was
replaced or political reasons (unrelated to WLM, of course). Thus, we could
not participate in WLM 2011.

In December 2011 we started working out a new strategy: meanwhile, as you
can imagine, endless discussions were made in our mailing lists. We
contacted NEXA Center for Internet and Society[4a], an institution from the
University of Turin which supports and promotes Creative Commons: they are
actually the official contact for Creative Commons in Italy! We decided to
allocate some resources and hired Deborah De Angelis[4b], a lawyer
specialized in Creative Commons and cultural heritage. Deborah, who is
based in Rome, started contacting again the (renewed) Ministry of Cultural
Heritage, proposing a draft for an agreement between the Ministry and
Wikimedia Italia. Several months of discussions and bouncing of documents
followed.

In January Wikimedia Italy also hired a Project Manager for Wiki Loves
Monuments, Emma Tracanella. Emma started developing and pursuing another
tactic developed by WMI to get permission for taking pictures of monuments:
asking directly the authorization to specific municipalities and
institutions. In fact, it is the "owners" of a monument who have the right
to authorize pictures of it. It's Codice Urbani itself which gives them
these rights, indeed.

Thus, we had two strategies: one top-down, that is discussing with the
MiBac to obtain an agreement clearly stating that we could organize Wiki
Loves Monuments in Italy, and explaining which were the boundaries of the
law (the dream here would have been to change the law itself, but we would
have needed to bring the issue in Parliament, and more urged matters
pressed); the other bottom-up, that is asking the permissions to the single
institutions. Note that the bottom-up strategy meant having to deal with
8000+ different municipalities, endless cultural institutions, uncountable
churches (every parish priest has the right for is own parish, unless this
is in some special list from the Ministry). We let you imagine the
complexity of the landscape that was opening in front of us: it was a
nightmare, but at least it could give us some "free" monuments.

Emma started making calls to everyone who could give us authorization for
taking photo of monuments. We started spreading the word, calling friends
of friends for help, starting a blog (our wikilovesmonuments.it), begging
for authorization everywhere. We had a great ally in APT Services, the
Tourist office for Emilia Romagna, with which we already partnered in the
past for some Wikipedia-related projects; they organized meetings with
mayors and regional politicians. In the end, we reached different regions
and provinces, and several municipalities (here there is a list[5]). Our
list of monuments counts in hundreds, and it's still improving everyday
(here there is a map of the lists[6]). A drop in the ocean, if you think at
the enormous Italian cultural heritage: but it is all we managed to get.

This up to yesterday. Today, we had finally an answer from MiBAC, and it
was positive. The Ministry signed an agreement with Wikimedia Italia saying
that:

   - the Ministry, with the aim of promoting the knowledge of the Italian
   Cultural Heritage, finds useful that the monuments have an article on
   Wikipedia with photographs. (yes, it is *actually* saying that).
   - the Ministry will send an internal communication asking to every
   Soprintendenza to send us a list of the monuments they control, along with
   a permission to take photos of them. Pics of these monuments can be
   released in CC-BY-SA, in the sense that the maker of the photograph can
   relinquish his own rights; no fee is needed to be paid to the monuments'
   owners by the photographer if he does not want to use them for commercial
   purposes.

As part of the agreement, we however have to add a disclaimer to the
pictures; the one in {{Italy-MiBAC-disclaimer}}. The text of the advice is
shown below:
*This image reproduces a property belonging to the Italian cultural
heritage as entrusted to the Italian government. Such images are regulated
by Articles 106 et seq. of the Italian Code of Cultural Heritage and
Landscape under Legislative Decree No. 42, dated January 22, 2004, and its
subsequent amendments. These regulations, unrelated to copyright
regulations, establish a system for the protection Italy’s historic and
artistic heritage and its standards of dignity. Among other things, these
regulations provide for the payment of a concession fee by those who intend
to benefit economically from reproductions of property belonging to the
Italian cultural heritage. Reproduction of this image is permitted for
personal use or study. A further authorization by the Italian Ministry of
Heritage and Culture is required for reproduction for any other purpose,
and particularly for commercial use. Such commercial use includes, but is
not limited to, use in (a) any form of advertising, and (b) any company
name, logo, trademark, image, activity, or product.*

Our lawyers (which are people from Creative Commons Italy) assure us that
this license is compatible with CC-BY-SA, because the provisions of the
license, which deals only with intellectual propriety, is saved and the
limitation occurs on another, different, level. In other words, the
photographer releases the picture in CC-BY-SA, the Ministry allows to put
it on Commons waiving its own right to get a fee, but Codice Urbani keeps
staying in force, protecting the pics from automatic commercial use by
third parties. To be more explicit, please have a look the the section 5 of
the Legal Code of Creative Commons CC-BY-SA-3.0 [7], which we are quoted
below: boldface is ours.
*5. Representations, Warranties and Disclaimer**Unless otherwise mutually
agreed to by the parties in writing, licensor offers the work as-is and
makes no representations or warranties of any kind concerning the work,
express, implied, statutory or otherwise, including, without limitation,
warranties of title, merchantibility, fitness for a particular purpose,
noninfringement, or the absence of latent or other defects, accuracy, or
the presence of absence of errors, whether or not discoverable. Some
jurisdictions do not allow the exclusion of implied warranties, so such
exclusion may not apply to you*

As you may see, it's true that the author of the photo cannot vouch for the
merchantability of the images, since this is not a right of his/her; but
CC-BY-SA explicitly takes into account that case.

To the best of our knowledge, this agreement is the first one of its kind
in Italy, and sees an official recognition of the existence of Creative
Commons licenses; moreover, it is a necessary step towards new regulations
recognizing the importance of the free dissemination of information about
the cultural and artistic heritage, which cannot just be "museum stuff". We
are thrilled to see what will come out, and how Italians will answer to
this challenge. We are very proud to have obtained this.

Feel free to ask us anything you think relevant, we'll do what we can to
answer. We are also open to prepare some FAQ, if we see the need for them.

Best regards,
Cristian and Andrea
on behalf of the Wiki Loves Monuments organizing committee in Italy
References

[1] http://commons.wikimedia.org/wiki/Template:Italy-MiBAC-disclaimer

[2] http://it.wikipedia.org/wiki/Codice_Urbani

[3] http://it.wikipedia.org/wiki/Soprintendenze

[4a] http://nexa.polito.it/

[4b] http://nexa.polito.it/fellows

[5] http://www.wikilovesmonuments.it/istituzioni/

[6] http://www.wikilovesmonuments.it/monumenti/lista-monumenti/ ; also on
wiki at:
http://it.wikipedia.org/wiki/Progetto:Wiki_Loves_Monuments_2012/Monumenti

[7] http://creativecommons.org/licenses/by-sa/3.0/legalcode
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