Does the law protect cultural heritage

photo: pieroor, Pixabay

By Eleonora Rosati

When you travel to France, the Eiffel Tower in Paris will be one of the key sites to visit; when you think of Italy, one of that country’s symbols is Michelangelo’s David; as you enjoy the sun setting down in the Spanish city of Logroño, you may well order some Chorizo Riojano to go with your glass of Rioja wine; when you stroll down the streets of Copenhagen, you will admire the beautiful furniture and the distinctive Scandinavian design style on display in local stores.

Architecture, art, food, wine, design: they are all part of a community’s own history, expertise, values, aesthetics and identity. In short: a community’s own cultural heritage (CH).

But does the law, including intellectual property (IP) law, protect CH? The answer is … yes (of course)!

From David to Classic Nudes: cultural heritage in recent legal disputes

Several legal provisions offer tools to protect CH, including international law and national laws. An example of the latter is the Italian Cultural Heritage Code (CHC), which sets the general principle that the Italian state, regional, and local authorities regulate the use of CH that they control by issuing relevant authorizations or taking action where no such authorizations have been granted or even requested.

Cases in which the Italian state has enforced (or threatened to enforce) the CHC include commercial advertisements of rifles in which Michelangelo’s David was portrayed in full armour and unlicensed ticket offerings for the main museums in Florence, which again displayed an image of David. More recently, the CHC was invoked against an adult entertainment website, which wanted to make ‘live’ versions of some of the paintings exhibited in the collection of Florence’s Uffizi museum as part of its ‘Classic Nudes’ series.

IP and cultural heritage: copyright, trade marks and geographical indications

IP law also offers (several) tools to protect CH.

Take the Eiffel Tower: a search on the EUIPO database reveals that the city of Paris has successfully registered trade marks related to the famous tower. Furthermore, while copyright no longer protects the tower itself due to the expiry of the relevant term, the lighting on it, which is visible at night and makes a walk along the Seine unforgettable (and very romantic), enjoys its own copyright protection!

IP can also be a tool to support local communities. Outside of Europe, a well-known example is Maasai, an ethnic group that has traditionally led a semi-nomadic life across southern Kenya and northern Tanzania. The Maasai Intellectual Property Initiative Trust seeks to reclaim ownership of and license the use of the Maasai name, image and reputation, including through trade mark licensing. The overarching goal of this initiative is to redistribute licensing revenues among a community where 80% of the people live below poverty levels.

In all this, geographical indications (GIs) stand as an increasingly powerful IP right to protect CH. In Europe, there is already a strong legal regime in place to protect agricultural products and foodstuffs, wine and spirit drinks through GIs: for example, both Chorizo Riojano and Rioja are registered GIs at the EU level. In addition to the regime for agricultural GIs, there may soon also be a legal system to protect craft and industrial products as GIs at the EU level: in spring 2022, the European Commission unveiled a legislative proposal, which will now need to be considered and discussed by the European Parliament and the Council, to introduce such a system. Once adopted, this legislation will offer an ‘EU-wide mechanism to protect the names of products such as Murano glass, Solingen cutlery, Donegal tweed, Halas lace or Gablonz jewellery’.

More IP in the future of CH, but also a fair balance of rights and interests

So, what does the future hold for CH? There will likely be more EU and more IP. One of the tasks of the EU is to help the cultures of the Member States blossom while respecting their national and regional diversity and bringing their common heritage to the fore.

In all this, it is also important to remember that the IP system strives to establish a fair balance between the protection of IP and the public interest. It is for these reasons that the EFTA Court considered that the city of Oslo’s attempt to register – as trade marks – a series of artworks created by Norwegian artist Gustav Vigeland, which are broadly regarded as being part of Norwegian CH, would need to be assessed from a public policy perspective, among others. The Court warned that trade mark law should not be used to circumvent the natural expiry of copyright protection available to such artworks.

More recently, following a high-profile dispute in Germany over the digitisation of a museum’s collection, the EU adopted legislation that prohibits individual EU countries from protecting simple reproductions of artworks in the public domain through copyright or related rights. This means that, in most cases, museums and galleries across the EU will no longer be entitled to use the copyright symbol ã in connection with the digitised images of older works in their collections that they make available online.

In summary: creating a balanced legal regime for the protection of CH requires constant work. At the end of the day, Michelangelo’s final words were ‘Ancora imparo’ (‘I am still learning’). We can all be inspired by his wisdom … including when it comes to shaping appropriate legal solutions to protect CH!
Eleonora Rosati is an Italian-qualified lawyer with experience in copyright, trade marks, fashion and internet laws. Dr Eleonora Rosati is a Full Professor of Intellectual Property (IP) Law, Director of the Institute for Intellectual Property and Market Law (IFIM), and Co-Director of the LLM in European IP Law at Stockholm University. She is also Of Counsel at Bird & Bird and is the author of several articles and books on IP issues.

This article was published in the January issue of Alicante News.