WLM, MiBac and Creative Commons
Dear Geoff,
We are asking advice from you about the translation in English of the template {{Italy-MiBAC-disclaimer}}[1]. We though that a little context would help, so here's a poor(ly written) summary of the history of the agreement with the MiBac, the Italian Ministry of Cultural and Artistic Heritage (also know as MiBAC, from "Ministero per i Beni e le Attività Culturali").
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 make 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] (and pay a fee, by the way); moreover, the authorization will be for him only. 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 (freely for personal use, paying for commercial use), I can give up my copyright allowing others to copy my image without requiring my explicit permission; but the Codice Urbani says that 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. Thus, the whole concept of Wiki Loves Monuments falls apart: we couldn't upload pics in Commons, and we couldn't organize a photocampaign in Italy asking people to (potentially) break the Italian law.
In Summer 2011 we tried to address the problem: we contacted people from the Ministry, we set up a draft of the project, we met once in Rome to speak with high delegates of the ministry. To make a long story short, we managed to obtain lists of monuments which could be photographed: but 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 then 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 was all we managed to get.
This up to today. 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 entrusted to the Italian government. The current provisions [regulations] are regulated per Articles 106 et seq. of Legislative Decree 22 January 2004, n. 42 (Code of cultural heritage and landscape) and its further amendments. Such regulations, unconnected to copyright regulations, set up a system for the protection and safeguarding of the historical and artistic Italian heritage and its standards of dignity [decorum], and provide for the payment of a concession fee by those who intend to take direct or indirect economic benefit from the reproductions of cultural property belonging to the Italian cultural heritage over the state. Reproduction of this image is hereby permitted [or just "is permitted": this kind of authorization is always allowed] for personal use or study. A further authorization by the Italian Ministry of Heritage and Culture is requested for replay for any different purpose, in particular for profit use - either direct or indirect - including but not limited to the association, in any manner and in any context, of this image to (a) an advertising message of any kind, and (b) a name, company, logo, trademark, image, activities or products of any subject.
And we finally get to the point! The translation has been made by a person (User:.mau., wiki.mau@gmail.com) which is not a lawyer, so, may you check it thoroughly and put the right legalese in place?
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.
We already have our templates ready for Wikimedia Commons, but we feel that for the sake of clarity it's way better if you may review them and give us a feedback. Could you give us an answer?
[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
[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