archive now contains over 12,000 index cards with interdisciplinary documents ranging from portraiture to set design, theatre architecture, costume design, painting and graphics. On the other hand, the Ca' Pesaro Library, which is part of the MUVE network and holds the Brenno del Giudice Fund, never replied to the online request form filled in and sent by the researcher.<fnref n="34" />

In fact, cultural heritage institutions (CHIs) can deny access to their collections or charge high fees, with a corresponding monopoly extending to any work derived from these original sources, and often even if the work is in the public domain.

## Concluding remarks

Why is it so difficult for people to interact with Italian cultural institutions, in a country where there are 7,886 libraries open to the public (79.6% owned by public bodies such as local authorities) and 4,292 museums (65.4% owned by public bodies, the rest belonging to religious bodies, or private foundations, or associations)? A country where, on average, there are three libraries (one for every 7,000 inhabitants) and two museums (one for every 14,000 inhabitants) per 100 square kilometers?<fnref n="35" />

Cultural institutions permeate the Italian context, but despite the growing consensus for open access and open culture,<fnref n="36" /> the reproduction and re-use of digital works, even those in the public domain,

<footnote n="34">34 The Fund is currently not accessible: see <https://siusa.archivi.beniculturali.it/cgi-bin/pagina.pl?TipoPag=comparc&Chiave=402435&RicLin=en&RicDimF=2> accessed 6 November 2023.</footnote>

<footnote n="35">35 Data source: ISTAT (the Italian National Institute of Statistics, a public research organisation, is the main producer of official statistics in the service of citizens and policy-makers), published on the 2nd December 2022, available at <https://www.istat.it/it/files//2022/12/accessibilita-luoghi-cultura-dic2022.pdf> accessed 6 November 2023.</footnote>

<footnote n="36">36 See, for example, OpenGLAM; or CCO, a proactive approach already adopted by several institutions for raw data and metadata; or CC BY 4.0 for content, to ensure that content in the public domain remains public once it is digitized.</footnote>
not to mention the reproduction of materials belonging to the per-
manent collections of museums, archives, film or audio heritage in-
stitutions, and other public and private cultural heritage institutions,
is only allowed under certain conditions in Italy.

As some commentators have already pointed out, even when
works are in the public domain, we can find many obstacles: the
combination of different rules prevents us from having full access
to our cultural heritage. Contractual clauses, licensing practices,
website terms of use (ToU) and other contractual arrangements with
third parties,<fnref n="37" /> rules on open data and the re-use of public domain
information for commercial and/or non-commercial purposes,<fnref n="38" /> in-
tellectual property rights claims by original authors, such as in the
case of derivative works,<fnref n="39" /> or by holders of related rights, such as
photographers' rights,<fnref n="40" /> copyright and sui generis rights in the case
of the authors of a database (who created it) and the maker of a
database (the person who takes the initiative in obtaining, verifying
or presenting the contents of a database and who has taken the risk
of investing in it<fnref n="41" />), privacy and data protection rules (e.g. the privacy
of the user and the privacy of the person depicted in a photograph<fnref n="42" />),
and so on. As mentioned above, one of the most complex issues
remains that of the relationship between Italian cultural heritage
law (Articles 107-108 of the Italian Code of Cultural Heritage and

<footnote n="37">37 Facebook and YouTube, for example, can decide what counts as inappropri-
ate under their policy, and therefore the content would be taken down and re-
moved from our collective memory, banned, or destroyed.</footnote>

<footnote n="38">38 Legislative Decree 36/2006, as amended by Italian Legislative Decree 200/2021.</footnote>

<footnote n="39">39 Articles 4, 18 and 18bis of Italian Copyright Law, cit., as amended by legislative decree no. 177/2021.</footnote>

<footnote n="40">40 Articles 87 ff Italian Copyright Law, cit., as amended by legislative decree no. 177/2021.</footnote>

<footnote n="41">41 Articles 64-quinquies and 65-sexies Italian Copyright Law, as amended by legis-
lative decree no. 177/2021. These neighbouring rights and the sui generis pro-
tection for databases, found in both common and civil law are not always bal-
anced with the concerns of users who, for example, cannot obtain the material
from another source.</footnote>

<footnote n="42">42 Italian Data Protection Code, as amended by Italian Law no. 205 of 3 December 2021.</footnote>
Landscape) and copyright law (such as Article 32-quater of the Italian Copyright Law<fnref n="43" />): rules that impose many restrictions on artistic and transformative reproduction and re-use, including for works of visual art in the public domain. As in the well-known case of 2022, when the Court of Venice issued an order prohibiting the use of the image of a famous Renaissance work of art by Leonardo da Vinci, *the Study of the Proportions of the Human Body in the Manner of Vitruvius*, held by the Italian State Museum Gallerie dell'Accademia in Venice. The latter, together with the Italian Ministry of Culture, initiated the precautionary procedure against the German company Ravensburger. Furthermore, according to the Court of Venice, the Galleria dell'Accademia is the custodian of the work and it is the sole which can assess the compatibility of the use of name and image with the cultural destination of the work. This means that the public domain may be further threatened by an ambiguously broad application of the scope of personality rights.<fnref n="44" /> In another recent judgment of the Court of Florence of 2023, in which the Court condemned the reproduction of Michelangelo's David by the defendant company on the cover of issue 241 of the men's magazine GQ Italy, an autonomous

<footnote n="43">43 Article 32-quater permit any reproduction of works of visual art “as identified in Article 2 of the Italian Copyright Law in the public domain, *unless they constitute an original work*”. Only non-original reproductions of works of visual arts in the public domain are, therefore, not protected by copyright or related rights; technically this means only mere ‘documentary photographs’ as faithful reproductions of an existing work. The Article also states: “Without prejudice to the provisions governing the reproduction of cultural property set forth in Legislative Decree No 42 of 22 January 2004 [...]”: the reference here is to Articles 107–108 of the Italian Code of Cultural Heritage and Landscape mentioned above. As said, these rules give public authorities control over the reproduction and re-use of our cultural heritage.</footnote>

<footnote n="44">44 Cf Giulia Dore, “The puzzled tie of copyright, cultural heritage and public domain in Italian law: is the Vitruvian Man taking on unbalanced proportions?” (*Kluwer Copyright blog*, 6 April 2023) <https://copyrightblog.kluweriplaw.com/2023/04/06/the-puzzled-tie-of-copyright-cultural-heritage-and-public-domain-in-italian-law-is-the-vitruvian-man-taking-on-unbalanced-proportions/> accessed 6 November 2023. Ravensburger is prohibited from continuing to use the image of the Vitruvian Man for commercial purposes in any medium, but it is interesting to note that it is still possible to buy puzzles reproducing *La Gioconda* (the *Mona Lisa*) or *The Kiss* by Hayez or another *The Kiss* by Klimt on the defendant’s website.</footnote>
image right of cultural property was recognised, at least for "works of absolute artistic value" (such as the David by Michelangelo) which had become "a symbol of the entire national cultural heritage". The infringement of the right to the image of cultural property in this case led to compensation for non-pecuniary damage, based on the principle of minimum compensation for the protection of inviolable constitutional rights (Article 9 of the Italian Constitution).<fnref n="45" />

It is not always clear whether a cultural heritage institution is claim-
ing the application of cultural heritage rules, or is instead invoking
copyright law as a 'privilege' to allow or prohibit (at its almost unques-
tionable discretion) the reproduction of the permanent collections in
its possession, or the re-use of digitised materials, up to the extreme
strategy of recognising image rights with respect to mere goods, in
such a way that the resulting protection can be claimed not only by
natural persons, but also by legal persons and even by CHIs.

These rules and their interpretation by the courts need to keep pace
with contemporary developments, and it is only by taking account
of new meanings and subversive practices such as hacking, copying,
modifying, tuning and remixing that an appropriate legal framework
can be established. Despite legal constraints, experimentation with
the reproduction, re-use and remix of cultural heritage continues. A
broader understanding of 'accessibility' as the free re-use of digitised
materials is being sought. Practices of reproduction and re-use are at
the forefront of our current century in many different disciplines and
fields, as our environments, economies and communities depend on
a nurturing relationship of care between people and things.<fnref n="46" /> From
architecture to design and the arts, the creative industries are explor-
ing copying and re-use, developing fascinating practices that engage
closely with our heritage, and re-imagine fundamental notions such

<footnote n="45">45 Cf. Eleonora Rosati, “Is it a breach of the Italian Cultural Heritage Code to feature on GQ a model posing like Michelangelo’s David? Yes, says Florence Court” (*The IP Kat*, 6 June 2023) <https://ipkitten.blogspot.com/2023/06/is-it-breach-of-italian-cultural.html> accessed 6 November 2023.</footnote>

<footnote n="46">46 Gramer Brooker, "50; 50 Words for reuse– a Manifesto" (Canalside Press 2021).</footnote>
as adaptation, alteration, intervention, insertion, installation, collage and remix. Today there is a 'neurosis' about originality,<fnref n="47" /> the fear of being seen to copy can prevent a good idea from taking shape, and the 'tyranny of invention' makes the history of things opaque. In fact, reproduction is central to our material culture, embedded in almost all creative practices: change happens through small tweaks rather than disruptive leaps of invention: literature, music, painting, video, performance love the "perpetual reinvention of the copy". From this perspective, re-use is a deliberate and selective process in which existing elements are borrowed and taken out of their environment to be applied in new contexts with a disruption of meaning: a creative combination of old and new elements to develop the meaning of the object or concept. Hybridity, syncretism, and pluralism can be used alongside the term re-use. They build a bridge between different traditions, and different identities, not seen as antagonistic (one dominating the other) but as mutually influential.

Remix practices also need to be reassessed, because they maintain a syncretic relationship between the original and the remixed version: this is the feature (and measure of success) of the remix, which does not destroy the original but “appropriates” it, quoting and situating the new in its place, ensuring that it can be understood; in certain cases, the reference can also be “decoupled” from the original, and the process becomes regenerative, emphasising the work of the remixer rather than the authorship of the referent.<fnref n="48" /> Among other things, we observe that remixing is an activity that relies on and is closely linked to adaptive and assistive technologies: not only do they help people with disabilities to perform tasks with greater ease and independence, but more generally they offer us different ways of interacting with technology, improving our lives in the contemporary digital turn. Against the contemporary culture of licensing and permission, we

<footnote n="47">47 Gramer Brooker cit. Latin *copia* as plenty, abundant [*cornucopia* the horn of plenty].</footnote>

<footnote n="48">48 For the re-reading of basic notions such as adaptation, alteration, intervention, insertion, installation, collage, and remix cf Gramer Brooker, cit.</footnote>
then advocate a new sensibility in working with everything we find
around us, from monuments and spolia to paintings, videos, comics
and documents. While it is true that cultural heritage is a complex
construct – the expression of social and cultural values through ar-
tistic, historical and scientific artefacts, both tangible and intangible,
that have solidified over time and connect the past to the present for
future generations<fnref n="49" /> – it is equally true that the narrative of heritage
construction could benefit from new practices and a renewed vocab-
ulary capable of shaping a re-use mindset. Further clarity is needed
on both sides of the fence – on what CHIs can do with the tangible
and intangible objects they hold in their permanent collections, both
as creators and copyright holders themselves, and as users of works
in the public domain, or copyrighted works of others, and on what
CCIs and users of apps and social platforms can do with the same
objects and artefacts.

The aim of our research and education project is to empower peo-
ple to explore and access our cultural heritage in new ways that our
laws have not yet considered – ways that are less about the econom-
ic exploitation of material, even that in the public domain (a ‘game’
that only companies with deep pockets and innovative proprietary
technologies can win), and more about the sharing of memories and
imagination. Our proposal aims to promote people’s experiences by
drawing on the interconnected narratives of diverse communities of
practice. It provides sustainable employment opportunities by ena-
bling local communities and people in general to access cultural her-
itage, while balancing competing interests in cultural heritage and
intellectual property rights. Our proposal would recognise specific
cultural rights, including the possibility of participating in cultural life
through artistic production, reproduction and re-use.

<footnote n="49">49 See the Convention on the Value of Cultural Heritage for Society, known as the Faro Convention, 2005.</footnote>
<figure><img src="image_31.png" /></figure>
READING ‘OPEN MUSEUMS’ THROUGH A
COPYRIGHT LENS: A PRIMER ON EVIDENCE-
BASED LEGAL RESEARCH

Giulia Dore

The last few years have seen a significant interest in the making and developing of the ‘open museum’, encompassing innumerable settings and disparate knowledge fields. The concept is noticeably complex, multidimensional, and ambiguous. Depending on context, it can have different meanings and implications, which may lead to confusion. However, despite its limitations, it is a powerful term that can instantly evoke, inter alia, the idea of ready accessibility and, more broadly, freedom. Its significance also varies in relation to other terms it can be associated with. In this chapter, the concept is explored through the lens of copyright, and the term ‘open’ is implicitly coupled with the notion of ‘access’. Therefore, in this precise sense, open museums can follow Open Access (OA) and Open Data (OD) principles, providing unrestricted access to and – to the extent possible – reuse of their collections.

Driven by the swift course of digitisation, museums have been re-
leasing ever larger numbers of objects from their collections in OA.<fnref n="1" />

<footnote>* This chapter received support also from the NextGenerationEU project 'iNEST - Interconnected Northeast Innovation Ecosystem' (ECS000043, CUP E63C22001030007).</footnote>

<footnote n="1">1 A phenomenon that is evidenced in the Europeana platform hosting millions of digital resources, as recently documented by Mirko Duić, “A Treasure Trove at Your Fingertips: Analysis of Contents from Europeana with Regard to their Copy-</footnote>
The rate of their digital transformation accelerated precipitously after the mandatory closure of their physical spaces during the Covid-19 pandemic.² Just in Europe, it is worth mentioning the examples of the Wien Museum,³ the MKG in Hamburg,⁴ the Nasjonalmuseet in Oslo,⁵ the Paris Musées,⁶ and, of course, the Rijksmuseum, which collectively made thousands of works available online, with a more pronounced commitment to open data.⁷

The phenomenon of openness in museums appeared in a nascent form even earlier, if somewhat ambiguously, elsewhere in the world.⁸

right Status” (46th MIPRO ICT and Electronics Convention, Opatija, Croatia, 2023) 578 <https://ieeexplore.ieee.org/document/10159823> accessed 6 May 2024.

2 Among the projects mapping this trend, see the report by Giovanna Fontanelle, “Lessons from cultural institutions and libraries that went open access in 2020-2021” Diff Wikimedia community blog, 18 May 2021 <https://diff.wikimedia.org/2021/05/18/an-overview-of-open-access-among-glams-in-2020-2021/> accessed 6 May 2024, who started exploring how different museums responded to the need to reconsider their priorities and explore new means of reaching their audience. Others have described in more detail the experience of specific museums. About the network of Paris Musées see Douglas McCarthy and Philippe Riviere, “Paris Musées embraces open access” (Europeana pro blog, 9 January 2020) <https://pro.europeana.eu/post/paris-musees-launches-its-open-access-initiative> accessed 6 May 2024.

3 Wien Museum Online Sammlung <https://sammlung.wienmuseum.at/en/> accessed 6 May 2024.

4 The online collection of the Museum für Kunst und Gewerbe Hamburg (MKG), launched in 2015, sets the example for other German museums willing to open up their collections and follow an OA policy. This case is specifically illustrated in Antje Schmidt, “MKG collection online: the potential of open museum collections” (2018) 7 Hamburger Journal für Kulturanthropologie 25, who explores the opportunities of OA for digital collections but also the challenges and broader implications of openness in the museum sector.

5 Nasjonalmuseet <https://www.nasjonalmuseet.no/en/collection/> accessed 6 May 2024.

6 Paris Musées <https://parismuseescollections.paris.fr/en> accessed 6 May 2024.

7 Rijksmuseum <https://www.rijksmuseum.nl/en/research/conduct-research/data/policy> accessed 6 May 2024. The leadership of Rijksmuseum in the making and development of open museum strategies is documented by many, e.g. Viola Rühse, “The Digital Collection of the Rijksmuseum” in Oliver Grau (ed), *Museum and Archive on the Move: Changing Cultural Institutions in the Digital Era* (De Gruyter 2017) 37.

8 For instance, the National Palace Museum in Taiwan has released selected im-
These efforts reflected the struggle of museums to pursue unrestricted
use of cultural resources to foster education and knowledge sharing
and to inspire creativity while keeping their alignment with the tradi-
tional mission of preservation and exploring potential new revenue
streams revenue streams. This allowed scholars to portray pioneering
cases as models of democratisation of culture to be followed by other
countries,⁹ to explore prospects for reform at the highest policy level
stemming from the consideration that cultural heritage belongs to hu-
munity worldwide and should, therefore, be available for all,¹⁰ and to
reveal a special commitment to guide museums in their decision-mak-
ing on OA.¹¹

ages for free and unlimited use since 2017, applying OGD and CC BY 4.0 licens-
es <https://theme.npm.edu.tw/opendata/index.aspx?lang=2> accessed 6 May
2024. The case is illustrated by James Quo-Ping Lin, Alan Chi-Gwong Cheung,
Shao-Chun Wu, "Approaching a New Episode of Digital Content Creative Reuse
at the National Palace Museum" 2017 *Pacific Neighborhood Consortium Annual
Conference and Joint Meetings (PNC)*, Tainan, Taiwan, 2017, 92-97, doi: 10.23919/
PNC.2017.8203527 accessed 6 May 2024, who highlight how the endeavor to
digitise and open up was boosted by the implementation of Open Data policy
serving the mission of providing public-centric services.

9 A recent study of this kind is Paul Longley Arthur, Lydia Hearn Edith Cowan, "How 'open' are Australian museums? A review through the lens of copyright governance" (2023) Internet Histories: Digital Technology, Culture and Society <https://www.tandfonline.com/doi/full/10.1080/24701475.2023.2268375> accessed 6 May 2023, who underline the need to promote mechanisms of copyright flexibility.

10 The unique collection of the Kala Nidhi Division of Indira Gandhi National Centre for the Arts (IGNCA) illustrates the factors hindering access to Indian digitised cultural heritage, especially in terms of copyright barriers that call for universal policy guidelines, as discussed by Ramesh C. Gaur, "Facilitating Access to Indian Cultural Heritage: Copyright, Permission Rights and Ownership Issues vis-à-vis IGNCA Collections" in Tariq Ashraf, Sharma Jaideep, Anand Puja Gulati (eds), *Developing Sustainable Digital Libraries: Socio-Technical Perspectives* (IGI Global 2010), 235.

11 Former reports on the use of images of works of art in the public domain include Kristin Kelly, “Images of Works of Art in Museum Collections: The Experience of Open Access, a Study of 11 Museums” prepared for The Andrew W. Mellon Foundation. Council on Library and Information Resources, June 2013 < https://www.clir.org/pubs/reports/pub157/> accessed 6 May 2024 describing the multitude of OA applications to collections of eleven art museums in the UK and USA.
The EU's broader strategic plans for cultural heritage visibly support the expansion of digitisation in the museum sector, and the distinctive role of the digital cultural platform Europeana in facilitating open digital collections is well acknowledged.<fnref n="12" /> Obviously, this process involves considerable cost, establishing a visible divide between institutions that are advancing in this area and those that have not yet started, exacerbating inequality and hindering social cohesion.<fnref n="13" />

The literature on open museums is growing and ranges across disciplines other than copyright law, occasionally with interdisciplinary approaches. Existing law-related contributions, however, are largely theoretical. The few that undertake thorough empirical analyses indeed demonstrate and further highlight the role of experiential evidence for understanding the issues and implications of open access policies in museums.<fnref n="14" /> Such studies provide a basis for predicting the impact of copyright law on museums’ digital transformation, often concentrating on the obstacles that copyright typically poses to access, use, and reuse of digital resources. They also particularly seek to evaluate the efficacy of regulatory frameworks in place, often im-

<footnote n="12">12 The key mission statement of Europeana is to empower digital transformation of cultural heritage institutions through the development of expertise, tools and policies that embrace digital change and ultimately foster innovation <https://www.europeana.eu/en> accessed 6 May 2024.</footnote>

<footnote n="13">13 Such a divide is illustrated, among others, by Ross Parry, *Museums in a Digital Age* (Routledge 2010) who insists on the pervasive and profound influence of digital media on cultural heritage. This is confirmed by many further studies such as Deepanjali Mishra, Sasmita Rani Samanta (eds), *Digitalization of Culture Through Technology: Proceedings of the International Online Conference On Digitalization And Revitalization Of Cultural Heritage Through Information Technology* (Routledge 2022).</footnote>

<footnote n="14">14 The first reference is to the Open Glam survey: Douglas McCarthy, Andrea Wallace, Survey of GLAM open access policy and practice, Wikidata <https://www.wikidata.org/wiki/Q73357989>. For a country-specific overview, see the commissioned report on open GLAMS in the United Kingdom by Andrea Wallace (2022). A Culture of Copyright: A scoping study on open access to digital cultural heritage collections in the UK (Towards A National Collection, 2022), <https://doi.org/10.5281/zenodo.6242611> accessed 6 May 2024. Following empirical studies include Mirko Duić, "A Treasure Trove at Your Fingertips" (see n 1) who undertook quantitative content analysis of the data on the Europeana platform.</footnote>
plying the need for legal reforms or for leveraging new technologies to develop novel sharing approaches.<fnref n="15" />

The scope of this short contribution is thus to summarise the principal characteristics of the ‘state of the art’, exploring the many opportunities and challenges for making and sustaining open museums as here construed. It is not a comprehensive literature review but rather aims to inspire one. It is not an exhaustive overview of the questions tied to the construal of open museums but rather hand-picks some problematic issues, arguably the most contentious ones. This said, most of the scholarly discussion seems to revolve’ around three macro categories tentatively labelled as legal uncertainty, copyright overreach, and OA prospects.

## Legal uncertainty

The first and wide-ranging category comprises the challenges posed by the current legal landscape on prospective open museums, starting with the typical unawareness and uncertainty of copyright law. Here, the emblematic opacity of its rules and language is paired with the lack of clear policy guidelines, exacerbating the obstacles to using digital cultural heritage resources. Copyright is considered one of the main obstacles to the unrestricted use of digital collections,<fnref n="16" /> but it fits in a broader ambiguous regulatory framework comprising other legal grounds that create fears of infringement. The legal challenges are many and the literature began to explore their different

<footnote n="15">15 The latter is, for instance, explored by Yuha Jung, “Current Use Cases, Benefits and Challenges of NFTs in the Museum Sector: Toward Common Pool Model of NFT Sharing for Educational Purposes” (2023) 38(4) Museum Management and Curatorship 451, who hints how museums could use non-fungible tokens (NFTs) widely to share their collections through a model for a common pool of NFT sharing based on OA and the fair use doctrine.</footnote>

<footnote n="16">16 Still, the role of copyright as a tool for museums to explore digital opportunities is undisputed. On this, see Mateusz Klinowski, Karolina Szafarowicz, “Digitisation and Sharing of Collections: Museum Practices and Copyright During the COVID-19 Pandemic” (2023) 36 International Journal for the Semiotics of Law 1991, who conclude that even the most recent EU legal framework still lacks effective legal tools.</footnote>
dimensions starting from the analysis of pioneering projects of mass digitisation.<fnref n="17" /> Wallace and Euler elucidate this point by stressing how, despite the prominent open approach of EU law, there is a strong need for legal guidance on national implementation and interpretation of norms beyond copyright.<fnref n="18" />

The impact of the law on the museum's digital journey, especially in terms of intellectual property rights (IPRs), including copyright, cultural heritage laws, and data protection regulations, is widely acknowledged. Scholars have pointed out that the legal framework significantly hampers the evolving role of museums as knowledge custodians now adapting to digital culture. Several have therefore suggested that reforming the existing system of norms to strike an adequate balance among multiple, often jarring, rights and interests<fnref n="19" /> will facilitate museums in fulfilling their mission.<fnref n="20" />

## Copyright overreach

The second but interrelated issue of copyright overreach concerns the inevitable conflicts stirred by the increasing influence of

<footnote n="17">17 See Vagelis Papakonstantinou, Paul de Hert, “Legal Challenges Posed by Online Aggregation of Museum Content: The Cases of Europeana and the Google Art Project” (2012) SCRIPTed <http://script-ed.org/?p=713> accessed 6 May 2024.</footnote>

<footnote n="18">18 Andrea Wallace, Ellen Euler, “Revisiting Access to Cultural Heritage in the Public Domain: EU and International Developments” (2020) 51 IIC International Review of Intellectual Property and Competition Law 823. As the authors note, the dearth of solid practical legal guidance facilitates the extension of improper claims, which are also advanced by contractual agreements and terms of services (at 835-836).</footnote>

<footnote n="19">19 This balance has been consistently discussed in the literature. See, for example, Pamela Samuelson, “Justifications for Copyright Limitations and Exceptions”, in Ruth Okediji (ed), *Copyright Law in an Age of Limitations and Exceptions* (Cambridge University Press 2017) 29.</footnote>

<footnote n="20">20 Questioning a reform to overcome the legal ‘obstacles’ to mass digitization projects: Lois F. Wasoff, “If Mass Digitization Is the Problem, Is Legislation the Solution – Some Practical Considerations Related to Copyright” (2011) 34(4) Columbia Journal of Law & the Arts 731. On the prospective changes in the law, see also Andrew F. Christie, “Cultural Institutions, Digitisation and Copyright Reform” (2007) 12 Media and Arts Law Review 279, 290–291.</footnote>
copyright exclusivity on museum activities.<fnref n="21" /> Since museum practic-
es are heavily influenced by copyright rationale, scholars pinpoint
the dangerous trend of museums failing to resist the enticement
of exclusivity and going even further by applying other legal tools,
such as licensing agreements. In this setting, museums are argua-
bly challenged to seek (especially economic) sustainability in their
digital operations.<fnref n="22" /> However, Sappa describes such a trend as 'a
control-based approach' shifting to a purely market-driven dimen-
sion, which diminishes the mission of access and education to
knowledge that should define museums while dissuading business-
es from entering the market.<fnref n="23" />

Such circumstances support the idea of a ‘culture of hyper own-
ership’, where copyright claims hinder others from using cultural
resources, harming the progress of art and science that is indeed
one of the primary scopes of copyright.<fnref n="24" /> This approach reflects
the current conduct of museums asserting ownership even beyond
copyright subsistence, i.e., claiming rights on public domain works,
which confuses users and deters them from rightfully participating in
culture. Indeed, by imposing unnecessary restrictions on works not
subject to copyright law, museums freeze the ability of the public to

<footnote n="21">21 On this specific aspect, see, among others, Kenneth D. Crews, "Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching" (2012) 22 Fordham Intellectual Property, Media & Entertainment Law Journal 795.</footnote>

<footnote n="22">22 This is for instance noted by Guy Pessach, "Museums, Digitization and Copyright Law: Taking Stock and Looking Ahead" (2007) 1 Journal of International Media & Entertainment Law 253, who looks at museums as both users and owners of copyright works that are continually required adjust their role.</footnote>

<footnote n="23">23 Cristiana Sappa, “Actions and reactions in commodifying cultural heritage host-
ed in museums” (2023) 14 Journal of Intellectual Property, Information Technol-
ogy and e-Commerce Law 161.</footnote>

<footnote n="24">24 An argument that is well articulated in Amy H. Blackwell, Christopher William Black-
well, "Hijacking Shared Heritage: Cultural Artifacts and Intellectual Property Rights"
(2013) 13(1) Chicago-Kent Journal of Intellectual Property 137, who (at 137-138) ex-
pose the risk of protecting something that has little or no value from an economic
perspective, but has an enormous value for the knowledge of humankind.</footnote>
use these works legitimately.<fnref n="25" /> This indeed has dubious legal standing,<fnref n="26" /> let alone moral standing.<fnref n="27" />

## Open Access prospects

The third and final category addresses the prospects and deficiencies of open strategies that respond to the challenge of increasing access to digital cultural resources and encouraging their reuse,<fnref n="28" /> with explicit benefits for communities.<fnref n="29" /> Frequently encouraging open culture initiatives,<fnref n="30" /> the literature emphasises the importance

<footnote n="25">25 See Linnea Dale Pittman, “Combatting Copyright Overreach: Keeping 3D Representations of Cultural Heritage in the Public Domain” (2020) 95(4) NYU Law Review 1192, who also advocates the opportunity to implement an analogue version of Article 14 DSMD.</footnote>

<footnote n="26">26 Among others, see Kenneth D. Crews, Melissa A. Brown, “Control of museum art images: the reach and limits of copyright and licensing” in Annette Kur, Vytautas Mizaras (eds) *The Structure of Intellectual Property Law* (Edward Elgar 2011), who specifically investigate the legal premises behind claiming copyright and otherwise imposing license restrictions on art images.</footnote>

<footnote n="27">27 A moral dimension of the phenomenon is traced by Grischka Petri, “The Public Domain vs. the Museum: The Limits of Copyright and Reproductions of Two-dimensional Works of Art” (2014) 12(1) Journal of Conservation and Museum Studies 1, who argues that handling reproductions of works requires a consideration of museum ethics that arises from the tension of making collections accessible versus acquiescing to restrictive policies on the digital reproduction of works.</footnote>

<footnote n="28">28 Discussing the increasing tension between the opportunity to broaden the scope of museums’ public mission and the desire to securing revenue streams, see Merete Sanderhoff, “Open images. Risk or opportunity for art collections in the digital age?” (2013) 2 Nordisk Museologi 131.</footnote>

<footnote n="29">29 On this, see Margaret Hedstrom, John Leslie King, “On the LAM: Library, Archive, and Museum Collections in the Creation and Maintenance of Knowledge Communities”, documented in Organisation for Economic Cooperation and Development, “Innovation in the Knowledge Economy: Implications for Education and Learning” (2004) <https://doi.org/10.1787/9789264105621-en></footnote>

<footnote n="30">30 In particular, it is worth mentioning the advocacy role of the OpenGlam network, aimed at developing policies and practices on OA in the cultural heritage sector <https://openglam.org> accessed 6 May 2024; the Communia association, expressly targeting “policies that expand the public domain and increase access to and re-use of culture and knowledge” <https://communia-association>.</footnote>
of developing effective strategies and institutional policies to open
digital collections, with an eye on the actual impact that the imple-
mentation of these strategies has on the cultural heritage sector.<fnref n="31" />

As Terras maintains, making and using digital objects can encour-
age research, thus justifying the endorsement of open cultural data
and open licensing.<fnref n="32" /> Furthermore, it is contended that open strat-
egies can safeguard society's cultural heritage and expressly serve
cultural preservation purposes<fnref n="33" /> while making this heritage available
to all. Still, the scholarly support for open culture and for museums
to embrace such openness does not impede foreseeing the limita-
tions associated with its evident advantages.<fnref n="34" />

The extensive literature confirms the significance of open practices
in museums while acknowledging their manifest complexity. The task
of museums to preserve and provide access to collections has certainly

org/> accessed 6 May 2024; the Creative Commons' initiatives to support open access on cultural heritage <https://creativecommons.org/about/arts-culture/> accessed 6 May 2024.

<footnote n="31">31 For instance, this was foreseen by Effie Kapsalis, "The impact of open access on galleries, libraries, museums, & archives" (2016) <https://siarchives.si.edu/sites/default/files/pdfs/2016_03_10_OpenCollections_Public.pdf> accessed 6 May 2024.</footnote>

<footnote n="32">32 A key role in advocating for a clear open data agenda is played by Melissa Terras, "Opening Access to Collections: The Making and Using of Open Digitised Cultural Content" (2015) 39 Online Information Review 733, one of the first to review the literature on OA movements and digitization in the cultural and heritage sector.</footnote>

<footnote n="33">33 To this extent, it safeguards collective memory for future generations and yet achieves the goal of cultural sustainability, according to Paula Fernández Valdés, "Achieving Cultural Sustainability through the Preservation of Video Art: Open Distribution Platforms" (2023) 31 Artnodes <doi.org/10.7238/artnodes.v0i31.402845> accessed 6 May 2024.</footnote>

<footnote n="34">34 In this sense, Brian Kelly, Mike Ellis, Ross Gardle, "What Does Openness Mean to The Museum Community?" in Jennifer Trant, and David Bearman (eds) Museums and the Web 2008: Proceedings (CDROM) Toronto: Archives & Museum Informatics (2008) <http://www.archimuse.com/mw2008/papers/kelly/kelly.html> accessed 6 May 2024, who wonder whether an unconditional approach to openness can always be sustainable and therefore call for 'a flexible approach' to open culture.</footnote>
been significantly impacted by digital technologies.<fnref n="35" /> Digitisation may have facilitated the expansion of their public mission by expanding the possibilities of access to and participation in culture. Still, it has also made it more complex, especially when societal goals struggle to align with economic ones.<fnref n="36" /> Furthermore, facing conventional copyright restrictions, the open strategies of museums have correspondingly shrunk, increasing the risk of ‘cultural distortions’.<fnref n="37" />

Empirical studies have focused on quantitative data,<fnref n="38" /> and have analysed qualitative evidence,<fnref n="39" /> especially through interviews.<fnref n="40" /> These studies often investigate the phenomenon of museum open-

<footnote n="35">35 See Melissa Terras, "The rise of digitization" in Ruth Rikowski (ed), *Digitisation Perspectives* (Sense Publishers 2011) 3; John H. Falk, Lynn D. Dierking, *The Museum Experience Revisited* (Routledge 2016).</footnote>

<footnote n="36">36 On this, see Reimar Tausch, Matevz Domajnko, Martin Ritz, Martin Knuth, Pedro Santos, Dieter Fellner, "Towards 3D Digitization in the GLAM (Galleries, Libraries, Archives, and Museums) Sector - Lessons Learned and Future Outlook" (2020) 16 IPSI Transactions on Internet Research 45.</footnote>

<footnote n="37">37 On this specific point, see Emily Hudson, Andrew T. Kenyon, "Without Walls: Copyright Law and Digital Collections in Australian Cultural Institutions" (2007) 4 SCRIPT-ed 197, 200, who describe the threat posed by the obvious prevalence of historic (public domain) works and the opposing scarcity of contemporary works.</footnote>

<footnote n="38">38 See Alexander Cuntz, Paul J. Heald, Matthias Sahli, "Digitization and Availability of Artworks in Online Museum Collections" University of Illinois College of Law Legal Studies Research Paper No. 23-18 (2023) <http://dx.doi.org/10.2139/ssrn.4544004> accessed 6 May 2024, analysing the impact of the copyright status of museum collections on the availability of digital images of artworks.</footnote>

<footnote n="39">39 For instance, see Julia Wiedemann, Susanne Schmitt, Eva Patzschke, "Responding to open access: how German museums use digital content" (2019) 17 Museum and Society 193, exploring the open culture strategies undertaken by German museums. See also Taylor A. Barrett, "Accessing Art Museum Archives: An Investigation of Remote Online Access to Art Museum Archive Collections" (2020) <https://doi.org/10.17615/w8b6-wg15> accessed 6 May 2024, acknowledging the lack of standardized approaches to making available digital images from art collections.</footnote>

<footnote n="40">40 Among the latest contributions, see Peter Booth, Trilce Navarrete, Anne Ogun-dipe, "Museum open data ecosystems: a comparative study" (2022) 78 Journal of Documentation 761, who investigate the interaction of museums with the articulated open data ecosystem, illustrating the dynamics that may restrict its development.</footnote>
ness through ‘use cases’,<fnref n="41" /> by surveying user standpoints,<fnref n="42" /> and by conducting value measurements.<fnref n="43" /> In so doing, empirical analysis helps validate the theoretical postulations behind the development and making of the open museum model. However, the legal and policy aspects mentioned above and their associated arguments have been only partially investigated using empirical research methods. Furthermore, they tend to indulge the typical lack of standardisation in open-culture approaches and decision-making. They are often very narrow in scope, eschew interdisciplinary methodology, and tend to quickly become outdated, given the rapid pace at which digital technologies evolve. Finally, they only rarely investigate critical issues such as accessibility and inclusivity.<fnref n="44" />

<footnote n="41">41 For example, the Saint-Raymond Museum in Toulouse is analysed by Alexandre Albore, Saverio Giulio Malatesta, Christelle Molinié, "Open Cultural Data and MediaWiki Software for a Museum: The Use Case of Musée Saint-Raymond" (2021) 1 Environmental Sciences Proceedings 10, one of the frontrunners on open cultural data.</footnote>

<footnote n="42">42 Looking into the barriers to non-commercial and commercial reuse of openly licensed art images, see Foteini Valeonti, Melissa Terras, Andrew Hudson-Smith, "How Open Is OpenGLAM? Identifying Barriers to Commercial and Non-Commercial Reuse of Digitised Art Images" (2020) 76(1) Journal of Documentation 1, who emphasize the difficulty users have identifying copyright status and distinguishing open images from those subject to copyright protection.</footnote>

<footnote n="43">43 In particular, see Lorna M. Hughes (ed), *Evaluating and Measuring the Value, Use and Impact of Digital Collections* (Facet Publishing 2012); Melissa Terras, Stephen Coleman, Steven Drost, Chris Elsden, Ingi Helgason, Susan Lechelt, Nicola Osborne, Inge Paneels, Briana Pegado, Burkhard Schafer, Michael Smyth, Pip Thornton, Chris Speed, 'The value of mass-digitised cultural heritage content in creative contexts' (2021) 8(1) Big Data & Society 1. See also Simon Cotterill, Martin Hudson, Katherine Lloyd, James Outterside, John Peterson, John Coburn, Ulrike Thomas, Lucy Tiplady, Phil Robinson, Phil Heslop, "Co-Curate: Working with Schools and Communities to Add Value to Open Collections" (2016) 1 Journal of Interactive Media in Education, exploring the use of OA materials in co-curation within educational and cultural settings.</footnote>

<footnote n="44">44 A prominent exception in this regard is the work by Léa Urzel Francil, Ann Leahy, Delia Ferri, "A Human Rights Approach to Accessibility for Visitors with Disabilities in Museums: Reflections from the DANCING Project" featuring in this book. More generally in the literature, special attention to accessibility in the open culture environment is found in Andrea Wallace, "Accessibility and open GLAM" in Jani McCutcheon, Ana Ramalho (eds), *International Perspectives on Disability Exceptions in Copyright and the Visual Arts: Feeling Art* (Routledge 2020), 46.</footnote>
In general, the limited presence of empirical legal studies stems partly from a historical hesitancy among legal scholars to embrace experimental research. However, combining empirical methods with theoretical approaches yields significant value, particularly in intellectual property law, and especially in copyright. In this realm, characterised by blurred and ambiguous legal provisions, establishing a regulatory framework grounded in policies designed from the ground up appears achievable through empirical studies.

In conclusion, evidence-based research is key to supporting more informed policies and regulations. Still, it demands increasingly wide-ranging and robust data to support the arguments on and for openness,<fnref n="45" /> corroborating the initial assumption that empirical analysis in this field is highly desirable. This often implies considering multiple subject matters and interdisciplinary interaction with disciplines other than law. Examining museum practices from a legal perspective might be persuasive, but it will be incomplete without examination of parallel standpoints, such as sociological or economic perspectives. Interdisciplinarity is crucial in guaranteeing the broadest perspective on openness that therefore strikes the proper balance between different and occasionally conflicting approaches. Future research, should contemplate all these aspects, repudiating a strictly legal-centric approach and pursuing a more far-reaching vision that goes beyond theoretical assumptions, effectively targeting a sustainable approach to openness: love can be blind, and so can be the law.

<footnote n="45">45 A typical assumption could be that intellectual property, and specifically copyright, are the main barriers against the flourishing of the museum digital and social mission. Another assumption is that the 'average' museum may lack technical or technological digital capacity, or may lack legal knowledge and training.</footnote>
Preface, *Roberto Caso*

Editors' foreword, *Giulia Dore and Marta Arisi*

Accessibility is not an option, it is a right to culture and the enjoyment of art,
*Aldo Grassini*

Making museums accessible: best practices from MUSE, *Paolo Degiovanni*,
*Patrizia Famà, Katia Franzoso and Romana Scandolari*

Accessibility and Inclusion at the MART, *Ornella Dossi*

Museo Egizio In & Out, *Alessia Fassone and Federica Facchetti*

Opening Up to the Community, *James Bradburne*

A Human Rights Approach to Accessibility for Visitors with Disabilities in
Museums. Reflections from the DANCING Project, *Léa Urzel Francil, Ann Leahy and Delia Ferri*

Regulating Communities: Strategies for an Open Museum Sector, *Fiona Macmillan*

Reproduction, re-use and open access, *Barbara Pasa*

Reading 'Open museums' through a copyright lens: a primer on evidence-
based legal research, *Giulia Dore*