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

Vicenç Riullop vriullop at hotmail.com
Thu Sep 13 13:45:48 UTC 2012

Good news, and good work!
Let me summarize it, from a non lawyer point of view, to check if I undestood it:
1. Old monuments are not copyrighted
2. MiBAC grants that I can license a photo under CC-BY-SA without paying any fee
3. Is up to third parties to pay the fee to sopraintendenza if they wish to use it for commercial purposes, and this is not any restriction related with CC-BY-SA


Date: Thu, 13 Sep 2012 14:56:45 +0200
From: zanni.andrea84 at gmail.com
To: wikilovesmonuments at lists.wikimedia.org
Subject: [Wiki Loves Monuments] MIBAC agreement for Wiki Loves Monuments in	Italy

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.» 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 Andreaon behalf of the Wiki Loves Monuments organizing committee in Italy

[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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