Italy

Last update: May, 2022

In the Italian Constitution, the main legislative reference in cultural matters is represented by article 9, according to which “the Republic promotes the development of culture (…), protects the landscape and the historic and artistic heritage of the Nation”, respecting the freedom of art, research and teaching enshrined in the following art. 33 (“art and science are free and their teaching is free”), which in turn strengthens the freedom of expression guaranteed by art. 21 (“everyone is free to freely express their thoughts through words, writing and any other means”). Of great importance is the complex nature of cultural heritage, which, given the constitutional mention of “landscape”, is not made up only of goods from the past, nor only of tangible ones, and not only of those that are publicly owned.

Art. 117, second paragraph, lett. s) of the Constitution includes among the matters reserved to the exclusive legislation of the State the protection (tutela) of cultural heritage, while paragraph 3 includes, among the matters of concurrent legislation between the State and the Regions, those relating to the valorization (valorizzazione) of cultural (and environmental) heritage and the promotion and organization of cultural activities, leaving any other aspect to the regional legislation (paragraph 4).

Particularly relevant is also the constitutional “principle of subsidiarity”, on the basis of which private individuals can participate in activities of general interest, especially if they are owners of cultural assets. Moreover, the theoretical hypothesis of a specific “right to culture” is being strengthened; this right, which can be deduced from the combined provisions of Articles 9 4 and 33 of the Constitution, claims to have free access to the cultural offer. It therefore requires public duties and obligations in relation to the “cultural education of the associates to which every value capable of soliciting and enriching their sensitivity as persons contributes to, as well as the improvement of their personality and their spiritual, as well as material, progress” (Constitutional Court, Decision no. 118/1990). This hypothesis has recently been reinforced by the adoption of decree-law n. 146/2015 (converted by law no. 182/2015), which included the opening of museums, and publicly owned places and institutes of culture in the list of public services to be considered essential.

Last update: May, 2022

In Italy, investments in the cultural sector are mainly public and are carried out through forms of direct and indirect financing. They are allowed, above all, by the resources deriving from general tax revenues and are directed through specific destination constraints by the State, Regions and local authorities towards cultural activities, bodies and organizations. Investments are also allowed by the system of tax relief for donations or investments in the cultural sector, which are discussed in paragraph 4.1.4. (Tax laws) and in chapter 7.1.

The proceeds deriving from the management of the nearly 500 state institutions and places of public culture are used differently depending on whether the management is carried out independently or not. Such proceeds are, in any case, intended for the implementation of interventions regarding the protection, operation, use, enhancement, expropriation and purchase of cultural assets. The system is even more complex with reference to other public places of culture (over 4.000), managed directly or indirectly by Regions, Provinces and Municipalities, or by other public entities, which use the resources they derive from management and the additional resources of their budgets, especially for the management, increase and enhancement of the cultural heritage. Local public entities and private owners can contribute in various partnership forms to the protection, management and enhancement of the cultural heritage of the Nation (publicly or privately owned), and the Ministry of Culture can contribute to conservation interventions on privately owned cultural assets, both in the event that such interventions are imposed by the Ministry of Culture and when they are voluntary.

An important share of public investment in culture is owed to continental resources, particularly the European structural and investment funds, which have dedicated significant resources to the issue, albeit with very variable approaches. Italy’s programming cycle for the period 2021/27 is still being defined, but it should amount to a total of 43 billion euros, which, with national funding, will reach over 75 billion euros. Of the ten National Operative Programmes (PON) proposed by Italy, one is expressly dedicated to culture, as was the case in the previous cycle (2014/20), during which the National Operative Programme “Culture and Development”, within the framework of the Europe 2020 Strategy, has been allocated 490.9 million euros. The resources were then used in 39 regional programmes, according to whether the region was qualified as less developed, in transition, or more developed^[1].

1. Subsidiarity in the support of cultural heritage (outline)

The great role of public support, on the one hand, makes it difficult to precisely calculate its size, given the large number and heterogeneity of the budgets involved (just think that almost a third of the 8,000 Italian municipalities are involved in at least one museum structure). On the other hand, the large cultural sector, which is difficult to even undisputedly define or delimit, is inevitably affected by the cyclical trends in public investments. In general, many studies agree in estimating that the Italian share of public spending and investment destined to culture up to 2019 was lower than the European Union average amount, and below that of other countries such as Spain, Germany and France. This leads the public debate on culture to not infrequently consider private involvement as an economic and financial partnership. However, as mentioned earlier, the cultural heritage in Italy is not only publicly owned (at a constitutional level it is referred to as an asset “of the Nation”). Furthermore, subsidiarity is a constitutional principle of the Italian Republic and, therefore, it is not only for economic reasons that the law provides for various tools to involve citizens and businesses in the commitments it requires. In particular, the most recent legislation:

• has innovated the discipline of sponsorship in the cultural field, which can consist of support through money or services, not only by structuring the legal relationship in a real contractual type, but also by providing very simple and rapid procedures for soliciting and identifying sponsors;
• has provided for simplified and specific forms of partnership with private individuals, different from those (institutional and contractual, and concessions) which have been used for some time in the competitive markets for public works and services;
• has disciplined with particular attention the phenomenon of “social enterprise” that carries out on a permanent and main basis one or more business activities which are of general interest, non-profit and pursue civic, solidarity and social utility purposes. The activities permitted by law include, among others, those relating to the “protection and valorisation of the cultural heritage and the landscape”, the “organization and management of cultural, artistic or recreational activities of social interest” and the “organization and management of tourism activities of social, cultural or religious interest”. Social enterprises, in addition to a particularly favorable fiscal and tax treatment, can establish privileged relationships with public bodies, through forms of co-programming, co-planning and accreditation;
• has involved, adding to their missions also the commitment to cultural heritage, particular institutions, such as the Chambers of Commerce, endowed with functional autonomy under public law but representative of private companies, or the Istituto per il Credito Sportivo, a financial instrumental body of the State.

The phenomenon of “Fondazioni bancarie” (“Banking Foundations”) is older, as it refers to private legal entities born from the transformation of the banking system at the end of the 1900s. These kind of foundations, even if they are private ones,  pursue social utility purposes, are non-profit and can act in the “arts and cultural assets and activities” sector. For these reasons, they can enter into agreements with public entities to support interventions for the enhancement of cultural heritage, starting from their programming, and since they make important investments in the cultural sector. However, they are mainly concentrated in the centre / north of the country and they contribute to the territorial gap.

It is difficult, on the other hand, to establish a complete and operational discipline on cultural and creative enterprises, to which various investment and support operations are addressed, such as, for example, “Cultura Crea”, a programme aimed at the creation and development of companies “in the cultural industries”.

2. Specific support tools

In Italy, as in other countries, since 1996 a part of the revenues generated by games and lotteries has been destined to the cultural sector. Important interventions have been made possible due to this mechanism (among the best known, those relating to the Egyptian Museum of Turin, the Galleria degli Uffizi in Florence, the Domus Aurea in Rome, the Certosa di San Martino in Naples, and the Arch of Trajan in Benevento). In a quarter of a century, the budget drawn from this reservoir has been variable, but, after a major decrease, it has been significantly increased since 2019.

Liberal donations in favor of culture made by private individuals were encouraged with the so-called “Art bonus” (see chapter 4.1.4 and 7.3). Among the specific funds, noteworthy examples are: the Fund for the protection of cultural heritage established in 2016 with an initial endowment of 100 million euros; the Strategic Plan “Major Cultural Heritage Projects”, established in 2014 with the aim of identifying assets or sites of exceptional cultural interest and of national significance, for which it is necessary and urgent to carry out organic interventions of protection, redevelopment, enhancement and cultural promotion, also for tourism purposes; the progenitor was the Great Pompeii Project, approved by a specific legislative act in 2011, an extraordinary programme of conservation, prevention, maintenance and restoration interventions, worth 105 million euros between ERDF and national funds.

Lastly, there are the resources allocated by the National Recovery and Resilience Plan (PNRR) in favour of the protection and enhancement of cultural heritage, included in the third component of Mission 1 of the Plan, entirely dedicated to Tourism and Culture 4.0, among the sectors most affected by the pandemic.

^[1]   The funded projects are available on the website: https://opencoesione.gov.it/it/progetti/?q=&selected_facets=focus:cultura&selected_facets=is_pubblicato:1&selected_facets=ciclo_programmazione:2

Last update: May, 2022

To cope with the intrinsically discontinuous and intermittent nature that characterizes the work performance of subjects employed in the entertainment sector, in 1947 the Ente Nazionale di Previdenza e Assistenza per i Lavoratori dello Spettacolo (ENPALS) was established in the form of a public body. Its task was to manage compulsory insurance contributions for invalidity, old age and survivors of subordinate, para-subordinate and self-employed workers employed in this sector, divided into categories coinciding with the most widespread professions in the world of film, dance, fashion, music for the theatre and sport. In 2011, ENPALS was abolished and converged into the INPS (Istituto Nazionale Previdenza Sociale) as the Entertainment Workers' Pension Fund (FPLS) and the Professional Sports Pension Fund (FPSP). The presence of the PSMSAD Fund (Painters, Sculptors, Musicians, Writers and Dramatic Authors) should also be noted, which promotes the training and affirmation of its members also in the international field, through various support systems, such as, for example, by assigning encouragement and industriousness prizes and granting contributions for study and specialisation trip expenses. However, given the small number of members (in 2020 there were only 874), the Fund has rather limited effects.

The pandemic seems to have given a new face to entertainment welfare. In addition to numerous temporary support measures, Decree Law n.73/2021, converted by Law n. 106/2021, strengthened the welfare safeguards dedicated to workers in the entertainment industry enrolled in the FPLS. Among the most significant interventions, there was the adaptation to the discontinuous nature of work in the entertainment sector through forms of support for maternity and paternity, the modification of the requirements to access allowances in the event of illness, a reduction in the daily contributions required to achieve the yearly contribution, as well as the improvement of the system of pension contributions. The most important change concerns the introduction, starting from January 2022, of the “Alas”, insurance for the involuntary unemployment of self-employed entertainment workers, who did not benefit from any similar protections. This system provides for the payment of a work allowance for a maximum period of six months in favor of workers who do not have current self-employment or subordinate employment relationships, who have accrued at least 15 days of contributions in the previous year and who have an income not exceeding 35 thousand euros. In addition to the above, there is a draft law linked to the budget maneuver which provides for a legislative delegation to the government, called to adopt one or more legislative decrees aimed at reorganizing matters relating to public support for opera, theatre, music, dance, circus and other performing arts. The measures include the introduction of a set of temporary economic support tools (“SET”) that take into account the structurally discontinuous nature of work within the entertainment sector.

Last update: May, 2022

The principle of tax benefits for cultural activities emerges in a series of provisions which aim to encourage the contribution of private actors – individuals and businesses - in this sector.

Tax incentives for legal entities:

• Art Bonus is a facilitating measure introduced by the D.L. n. 83/2014, then stabilized and made permanent by the 2016 stability law, which allocates to private individuals and firms a tax credit equal to 65 percent of the disbursements made to promote projects for the restoration of publicly owned cultural assets, for the support of publicly owned cultural institutions and places (e.g. museums, libraries, archives), and for the construction, restoration and strengthening of structures of public bodies or institutions that carry out activities in the entertainment sector. In particular, for the holders of business income, the tax credit is recognized within the limits of 5 per thousand of annual revenues (see chapter 7.3).
• The tax legislation (Article 100, paragraph 2, letter m) of the TUIR/ Testo Unico delle Imposte sui Redditi) already provides an incentive for cultural patronage with the total deductibility of the taxable income of donations in cash made by subjects holding business income in favor of the State, Regions, Local Bodies, Public Bodies or Institutions, as well as Foundations and legally recognized non-profit Associations for the performance of their tasks and for the implementation of programmes in the cultural heritage and entertainment sector. In addition, donations made by companies in favor of non-profit organizations of social utility that carry out activities in the field of protection, promotion and enhancement of cultural heritage, as well as in the sector of the promotion of culture and art, are also encouraged (Article 100, paragraph 2, letter h) of the TUIR). Furthermore, tax benefits are provided for sponsorships which, like donations in cash, are totally deductible from business income if it is not a normal advertising activity.
• A widely used measure is the tax credit in the film sector, which allows companies that invest in film and in the audiovisual sector to access the tax credit by offsetting tax debts with the credit accrued following an investment in the film sector. Examples are the production tax credit (Article 1, paragraph 327, Law 244/2007 and Decree 7.5.2009 “tax credit producers”) and the distribution tax credit (Article 1, paragraph 327, Law 244/2007 and Ministerial Decree 21.1.2010 “tax credit external investors and distributors”).
• A particular measure is represented by the so-called Bonus Facciate, a tax discount to embellish buildings in the historic centres of cities, which allows tenants and owners, residents and non-residents of the State, individuals and businesses, to recover 90% of the costs incurred in 2020 for the renovation of existing buildings, of any cadastral category, including instrumental ones, without a maximum spending limit.
• The 2021 Budget Law (Law No. 178/2020) established the Fund for Small and Medium-sized Creative Enterprises, with an endowment of 20 million euros for each of the years 2021 and 2022, which can be used to promote the creation and the development of businesses in the creative sector through straight grants, subsidized loans and combinations of the two. In particular, the legislator clarified that the “creative sector” should be interpreted as “the sector that includes activities aimed at the development, creation, production, dissemination and conservation of goods and services that constitute cultural, artistic or other creative expressions and, in particular, those relating to architecture, archives, libraries, museums, artistic craftsmanship, audiovisuals, including film, television and multimedia content, software, video games, material cultural heritage and immaterial, design, festivals, music, literature, performing arts, publishing, radio, visual arts, communication and advertising”.
• In order to increase the competitiveness of Italian industry, the 2022 Budget Law (Law no.234/2021) has extended the discipline of the tax credit for investments to research and development, ecological transition, technological innovation 4.0 and other innovative activities. In particular, for design and aesthetic conception activities, aimed at significantly innovating the company's products in terms of form and other non-technical or functional elements, a tax credit of 10% was recognized up to the maximum limit of 2 million euros.

Tax incentives for individuals:

• Art Bonus: also applies to cash disbursements made by individuals and gives the right to obtain a tax credit corresponding to 65% of the disbursement made, within the limit of 15 percent of taxable income.
• Art. 15 paragraph 1, lett. h) of the TUIR: this rule allows the deduction from IRPEF (personal income tax) of 19 per cent of cash donations in favor of public entities or foundations and legally recognized non-profit associations, which carry out or promote study, research and documentation activities of significant cultural and artistic value, for the purchase of cultural assets (given the validity of the Art bonus, in order to avoid the possibility of benefiting from multiple concessions with a single payment, the other forms of concessions recognized by this provision do not apply). Furthermore, paragraph 46 of art. 23 of Law no. 111/2011 extended the possibility for taxpayers to allocate the 5 per thousand (5 per mille) of the income tax of individuals to financing the protection, promotion and enhancement of cultural and landscape assets.
• Incentives for the restoration of protected property: Article 15, paragraph 1, letter g) of the TUIR provides for the deduction from gross tax of 19 percent of the cost incurred for the restoration of protected property.
• Fund for restoration and other conservation interventions on buildings of historical and artistic interest: established by the d.l. 73/2021 (Law no. 106/2021) within the budget of the Ministry of Culture, with an endowment of 1 million euros for each of the years 2021 and 2022, it allows for individuals who hold such buildings a tax credit equal to 50 percent of the expenses incurred in 2021 and 2022 for conservation interventions, up to a maximum of 100,000 thousand euros.
• Another incentive (even if of a non-fiscal nature) is the Bonus Cultura, a measure introduced in 2016, which consists of a 500-euro bonus for 18-year-olds for the purchase of various types of cultural products and activities. Starting from the 2022 budget law, the culture bonus has established itself as a structural measure and provides for the assignment of an electronic card that allows the purchase, for example, of tickets for theatre, cinema and live performances, books, tickets to access museums, exhibitions and cultural events, as well as language courses.

VAT and indirect taxes on cultural goods and services

The most detailed treatment in terms of indirect taxation is reserved for book production, which benefits from the reduced VAT levy of 4%; the thorniest issue in this regard is that of VAT on the circulation of works of art, subject to a 22% Value Added Tax, the ordinary rate, which, in relation to art, is one of the highest in the world. The national association of Italian art galleries pointed out how this distances many exchanges from the national territory and favors tax evasion and avoidance. It therefore proposed an alignment with the regime of other countries, which apply a 10% rate. Many scholars believe that the measure would also bring benefits to public revenues and political advantages in terms of repercussions, because the art market, if considered in its broad perimeter (framers, blacksmiths, carpenters, transporters, insurers, fitters, communicators, experts, technicians, popularizers, critical interpreters, etc.), is labor intensive.

Last update: May, 2022

Italy does not have a law specifically dedicated to employment relationships established in the cultural sector, not considering Law no. 4/2013, which contains “provisions on non-organized professions” (on the basis of which AIB and ANAI, the National Associations of Librarians and Archivists have certified librarians and archivists according to the UNI EN ISO 9001 standard). In fact, the concept of “cultural work” is difficult to define, due to the heterogeneity of sectors and activities, as well as the variety of possible legal and contractual forms. For example, in 2014, the discipline regarding professionals competent to carry out interventions on cultural heritage was included in the Heritage and Landscape Codex (Article 9-bis, concerning archaeologists, archivists, librarians, demo-ethno-anthropologists, physical anthropologists, restorers of cultural heritage and collaborator restorers of cultural heritage, experts in diagnostics and in science and technology applied to cultural and historical art heritage, now listed in national directories).

In particular, cultural workers with a subordinate and open-ended employment relationship represent the minority and are often those who work for institutions and public entities (e.g., museums, libraries, archives), access to which is provided through public tender procedures, and which are regulated within the public administration employment framework. As for the rest, in addition to the “general” legislation (of subordinate work in enterprise, fixed-term, project-based, self-employed, etc.), various Soft law provisions are in force: for example, in the discipline of standards for museums (for State ones, see the Ministerial Decree of 10 May 2001), there are elements regarding some professional figures, as well as in the “National Charter of Museum Professions”, promoted by Icom Italia and other organizations.

In the Italian system, in addition to the Constitution and the laws, work in the private sector is regulated by agreements reached as a result of collective bargaining between workers representative organizations and employers’ associations (or a single employer), defined as national collective agreements of work (CCNL), including the Federculture contract (Federation for cultural, tourism, sport and leisure public service companies), which can be applied to employees of companies, businesses, institutions and bodies that  provide services in the fields of culture, tourism, sport and leisure. The Federculture contract, which, starting from 2016, has a three-year duration both for the regulatory and the economic part, governs various contractual forms such as fixed-term, temporary and part-time contracts. With regard to flexible work, while recognizing that flexibility can, in principle, be functional to the needs of companies and workers, it sets a maximum overall percentage of flexibility that must be respected at the time of establishing the relationship and that can only be increased by virtue of a supplementary company agreement, based on specific needs. With regards to artistic services, the payments received constitute, in most cases, income from self-employment which, pursuant to art. 53 of Presidential Decree no. 917/86, is characterized by the coexistence of two elements, namely professionalism and habituality. Those who carry out an artistic activity in a professional way must request the attribution of a VAT number, specifying in the request the type of activity carried out as well as the tax regime they intend to apply (on the aspects relating to social security protection, see par. 4.1.3).

Last update: May, 2022

In Italy, copyright is mainly governed by Law no. 633/1941 which provides for the protection of “intellectual works of a creative nature” belonging to literature, music, figurative arts, architecture, theatre and film, whatever the mode or form of expression (art. 1). The protection was then extended to photographic works, computer programmes, databases and industrial design creations afterwards (Article 2), given the increased digitalization of society.

The harmonization and “Europeanization” process with regards to copyright has determined a significant change in the national legislation on the subject. In fact, the transposition of the European directives typically involved the adoption of legislative decrees amending the national law on copyright, with very few exceptions in which the implementation of the Union’s indications took place through the adoption of autonomous legislative texts. This is the case for Directive 2000/31/EC, relating to some legal aspects of information society services, in particular electronic commerce, in the internal market (“Directive on electronic commerce”), transposed through Legislative Decree no. 70/2003; and of Directive 2014/26/EU on the collective management of copyright and related rights and on the granting of multi-territorial licenses for rights on musical works for online use in the internal market (“CRM Directive”), transposed through D.lgs. n. 35/2017.

Among the most important European directives in this sector is Directive 2001/29/EC on the harmonization of some aspects of copyright and related rights in the information society (“InfoSoc Directive”), transposed through Legislative Decree no. 68/2003, and Directive 2001/84/EC transposed through Legislative Decree no. 118/2006, which concerns droit de suit, the remuneration due to authors of a work of art or a manuscript calculated on the price of each sale following the first.

More recently, Directive 2019/790/EU (“Copyright Directive”) was adopted which, in reforming the copyright sector within the digital single market, introduced some innovations concerning, among other things, the publishing sector and the liability of internet service providers for online copyright violations. In the Directive’s implementation process, which came to an end with the adoption of Legislative Decree no. 177/2019, some critical issues have emerged concerning the art world and, in particular, the discipline concerning the digital reproduction of cultural heritage images. Art. 14 of the Directive, in fact, states that when the term of protection of a visual art work has expired, any material resulting from the reproduction of that work is not subject to copyright or related rights, unless the material resulting from such reproduction is original in the sense that it is the author's own intellectual creation. Nevertheless, in faithfully transposing the provisions of the directive, the Italian legislator has preserved and held on to the rules of the Heritage and Landscape Codex on the matter of reproduction which provide for stringent limitations to the possibility of using, for commercial purposes, images of works belonging to the public domain overseen by public institutions (Article 108 of Legislative Decree No. 42/2004). These restrictions, in the opinion of some operators such as Wikimedia Italia and the Capitolo Italiano Creative Commons, may appear to be in contrast with the Directive’s intention to create a European public domain and an obstacle to the digitization process of cultural heritage.

At the same time as the Copyright One Directive, Directive (EU) 2019/789 was also issued, laying down new rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and to retransmissions of television and radio programmes. In transposing it within the Italian legislation, Legislative Decree n. 181/2021 introduces four new articles in the body of the Copyright Law (n 633/1941) aimed at simplifying the discipline of granting copyright licenses and related rights, in order to make the cross-border supply available also to online services, which are ancillary to broadcasting, and to extend, in terms of technological neutrality, the rules already provided for cable retransmission to other forms of retransmission that have emerged as a result of recent technological developments.

Last update: May, 2022

The first Italian law specifically oriented to the protection of personal data is n. 675/1996, adopted to implement Directive 95/46/ EC.  Article 1 of the law states that “[...] the processing of personal data is carried out in compliance with the rights, fundamental freedoms, as well as the dignity of individuals, with particular reference to confidentiality and personal identity; it also guarantees the rights of individuals and any other body or association". The law itself also established the Personal Data Protection Authority (Garante per la protezione dei dati personali), an independent administrative authority that verifies compliance with the law of personal data processing, examines complaints, suspends and prohibits data processing that violates the relevant regulations, and imposes corrective sanctions. The European directives and indications from 1996 to 2003 were implemented with Legislative Decree no. 196/2003 containing the “Code regarding the protection of personal data”, also known as the Privacy Code, profoundly modified by Legislative Decree no. 101/2018 to adapt it to the provisions of regulation (EU) 2016/679 concerning the protection of individuals with regard to personal data processing, as well as the free circulation of such data (so-called GDPR). To date, therefore, the legislation on the protection of personal data applicable in Italy results from the set of directly applicable provisions of GDPR and from the provisions of the Privacy Code, as reformed by Legislative Decree no. 101/2018. In particular, the first part of the Code is almost entirely replaced by the European Regulation provisions.

With regards to public administrations, the principle of public access to records and documents is in force, which means that they are fully accessible by interested parties (and today by citizens in general). It is accompanied by the transparency principle, which, since 2016, has been understood as granting “total accessibility” to data and documents managed by public administrations, on the model of the Freedom of Information Act (FOIA). The Digital Administration Code (CAD), introduced in 2005 and amended several times, also contains important provisions; it governs, among many other things, the accessibility and encryption of data and information between public administrations, and between them and citizens and businesses, the interoperability and cooperation (i.e. the possibility of making different information systems communicate with each other for the purpose of exchanging data and services by attributing univocal meanings to the information) and the legal regime of the data held by public administrations, which must be made available in an open format and must be accessible and reusable by other administrations, citizens and businesses.

Last update: May, 2022

Art. 6 of the Constitution entrusts the Republic with “the task of protecting linguistic minorities with specific rules”. This provision joins the more general principle of equality enshrined in art. 3 of the Constitution from which it is possible to deduce that the Constitution guarantees “equal social dignity” to those who speak languages ​​other than Italian. The protection of linguistic minorities and the enhancement of their cultural identity is entrusted to both the national and the Regional legislator but, as repeated on several occasions by the Constitutional Court, “the identification of the characterizing elements of a linguistic minority to be protected” falls solely within the national legislator’s responsibility (Corte Cost, sentence no. 81/2018). Until 1999, in the absence of an organic law of reference, the only form of protection was recognized, through reference to the Framework Convention for the Protection of National Minorities of 1999, to historical or national minorities of the French-speaking group of the Valle d’Aosta, the German-speaking group of Alto Adige and the Slovenian group in the provinces of Trieste and Gorizia.

It is only with law no. 482/ 1999, containing “rules on the protection of historic linguistic minorities” which introduced an organic discipline for the protection of the language and culture “of the Albanian, Catalan, Germanic, Greek, Slovenian and Croatian populations and of those speaking French, Franco-Provençal, Friulian, Ladin, Occitan and Sardinian”. According to the law, educational institutions are tasked with ensuring the teaching of the aforementioned languages ​​and cultural traditions of minorities, while the public radio and television service (RAI) should ensure, through specific agreements, adequate forms of protection for linguistic minorities, under the supervision of the Authority for Guarantees in Communication/AGCOM. On the basis of the agreements currently in place, RAI ensures the broadcasting of radio and television programmes in German, Latin, Slovenian and French, in their respective reference areas. In addition, in 2020, agreements were finalized with the Information and Publishing Department of the Presidency of the Council of Ministers for the protection of the Sardinian language and the Friulian language. On the other hand, minorities of immigrants have no form of protection by law, nor the Roma and Sinti populations; the reasons for this absence can be inferred from the title of the law which provides protection exclusively to “historic” linguistic minorities rooted in a specific geographical area.

Last update: May, 2022

Information is currently not available.

Last update: May, 2022

In Italy, State and regional laws with a sectoral character regulate most of the aspects concerning culture, therefore in the context of this short report it is not possible to provide a complete overview of the regulatory evolution in this matter. The following paragraphs will attempt to provide a reconstruction of the juridical discipline concerning the most relevant aspects regarding cultural matters through a survey of the legislative interventions that have impacted on the legal discipline of the various sectors that will be treated in the thematic paragraphs.

Main international legal instruments implemented by Italy in the cultural field

The table below shows the main international legal instruments implemented in Italy in the cultural sector, with a brief description of the impact and regulatory interventions resulting from their implementation. 

Last update: May, 2022

The main legislative implementation of Article 9 of the Italian Constitution is due to the Heritage and Landscape Codex, adopted by Legislative Decree 22 January 2004, n. 42, which dictates an articulated discipline aimed at regulating the protection, enhancement, circulation and management of cultural heritage, constituted, pursuant to Article 2 of the Codex, of cultural and landscape assets, in view of their universal fruition.

Furthermore, the Codex, in art. 101, refers to the institutes and places of culture that are intended to be used and enjoyed by the community. Cultural institutes, or museums, libraries and archives, are permanent structures within which a set of cultural assets are collected. Whereas the places of culture, such as areas, archaeological parks and monumental complexes, are themselves cultural heritage complexes. If institutes and places of culture belong to a public entity they are intended for public use and perform a public service (art.103 co. 3); if instead they belong to private subjects they are open to the public and carry out a private service of social utility (art. . 103 co. 4).

With particular reference to the notion of museum, which in the Codex is defined as “a permanent structure that acquires, catalogues, conserves, orders and exhibits cultural assets for purposes of education and study”, it should be noted that the Ministerial Decree of 23 December 2014, welcoming the definition provided by ICOM (International Council of Museums), defines the State museum as a “permanent, non-profit institution at the service of society and its development. It is open to the public and carries out research concerning the material and immaterial testimonies of humanity and its environment; acquires them, preserves them, communicates them and exhibits them for study, education and pleasure purposes, promoting their knowledge among the public and the scientific community”.

In 2019, the Central Institute for the digitization of cultural heritage - Digital Library was created by the Ministry of Culture. It coordinates the digitization programmes of cultural heritage under the Ministry's responsibility (Article 35 of the Italian Presidential Decree No. 169/2019) and will also be responsible for projects related to the digitization of cultural heritage which will be funded with the resources allocated by the National Recovery and Resilience Plan as part of Mission 1 C3, “Tourism and Culture 4.0”.

Returning to the Codex, the third part is entirely dedicated to landscape assets. Art. 131 defines the landscape as “a territory expressive of identity, whose character derives from the action of natural and human factors and their interrelationships”. The Constitutional Court clarified that landscape represents “the morphology of the territory, that is the environment in its visual aspect” (Constitutional Court, sentence no. 367/2007). The landscape is therefore a component of the environment that must not be protected only because of the aesthetic and naturalistic elements that characterize it, but also for the historical and cultural values ​​that find expression in it.

The Codex provides for a specific discipline expressly dedicated to the protection of intangible cultural heritage, with art. 7 bis, introduced by d. lgs. 62/2008, which refers to the expressions of collective cultural identity “contemplated by the UNESCO conventions for the protection of the intangible cultural heritage and for the protection and promotion of cultural diversity […]”, provided that they are material testimonies. The reasons for this choice lie in the basic formulation of the Codex and in the legal instruments it contemplates which postulate the materiality of the asset, accompanied by a certain fear, shown by the Italian legislator, regarding the possibility of excessively expanding the object of protection to reach a sort of “panculturalism”. This also explains part of the resistance expressed in the occasion of the Faro Convention ratification on the value of cultural heritage for society, which took place only in 2020, fifteen years after its conclusion (see paragraph 4.2.1). Lastly, the establishment of the so-called “Fondo per la cultura” by the d.l. 34/2020 which allocated 50 million euros for the support, through public-private co-financing, of investments and other interventions for the protection, conservation, restoration, use, enhancement and digitization of tangible and intangible cultural heritage (art. 184). These interventions must concern new achievements and not already started projects; they must be carried out in Italy and must be completed within three years of admission to the benefit.

Last update: May, 2022

Opera is a type of live show of great tradition in Italy. Its regulatory discipline was initially defined by Law 800/1967 which declared the “relevant general interest” of opera and concert activity “as intended to promote the musical, cultural and social training of the national community”. If at first the autonomous lyric bodies and similar concert institutions had been recognized as legal personalities under public law, the subsequent Legislative Decree 367/1996 transformed these bodies into foundations under private law, in order to eliminate the organizational rigidity and consequently to attract private funding. However, the fourteen lyric-symphonic foundations retain a marked public imprint, also due to the fact that the financing of their activities mainly comes from public funds. Moreover, since 2013, given the persistent economic and financial difficulties faced by most of the lyric-symphonic foundations, they have been at the centre of a reorganization process introduced by legislative decree. 91/2013 (the so-called “Valore Cultura” decree, converted with Law No. 112 of 7 October 2013), still in progress today.

With regards the other sectors of live entertainment, in 1985, the Unified Fund for the Performing Arts (Fondo unico per lo spettacolo / FUS, L. n. 163/1985) was established, which supports, in addition to the lyric-symphonic foundations (to which about half of the resources are allocated on average), entities, associations, organizations and companies that carry out musical, dance, theatrical, circus and traveling performance activities, as well as events and initiatives of national character and relevance to be carried out in Italy or abroad, and, following the l. 205/2017, carnival events. With reference to the film sector, l. 220/2016 has established a special fund for the development of investments in film and audiovisuals. The law provides for the creation of the Observatory for the Performing Arts, whose tasks include preparing a report on the use of the FUS that the Minister of Culture is required to present every year to Parliament^[1]. The criteria relating to the assignment of contributions disbursed by the FUS have been redefined following the aforementioned Legislative Decree 91/2013 (the so-called Valore Cultura decree, converted with Law No. 112 of 7 October 2013), according to which they must take into account the cultural importance of the production carried out, the quantitative levels, visitor indices, as well as the management regulation of the bodies. Therefore the D.M. 1 July 2014, which provided for the three-year programming of artistic projects admitted for funding, defined criteria common to all sectors (theatre, music, dance and circus) as well as the strategic objectives to be pursued, including the promotion of multidisciplinarity, geographical rebalancing, generational change and better coordination between the levels of government (Article 2).

While the strategic objectives outlined by the decree were generally appreciated, the introduction of a complex system of algorithms for the evaluation of funding applications was particularly discussed. Great importance is, in fact, given to quantitative aspects, such as the number of shows and spectators, compared to those relating to the artistic quality of the project. To date, the criteria for the disbursement and the methods for the anticipation and settlement of the contributions to the live show (valid on the FUS) are defined by the D.M. 27 July 2017, which essentially maintained the same system as Ministerial Decree 1 July 2014, further simplifying its structure. However, due to the COVID-19 emergency, specific criteria have been identified for the allocation of the FUS resources for 2020 and 2021, and the disbursement of an advance on part of the recognized contribution for 2019 has been arranged, in order to ensure employment protection and project continuity.

Another novelty introduced by Ministerial Decree July 1, 2014 concerned theatres: permanent theatres, in fact, have given way to national theatres, organizations that carry out theatrical activities of considerable national and international prestige and are co-financed by local authorities for a sum equal to 100% of the State contribution, and to theatres of significant cultural interest, organizations that carry out theatrical production activities of significant cultural interest mainly within the region to which they belong and are co-financed by local authorities for a sum equal to 40% of the State contribution. In 2020, six national theatres and twenty theatres of significant cultural interest have benefited from the contributions provided by the FUS. Finally, it should be noted that the entertainment sector is at the centre of a reform project launched in 2017 with Law no. 175/2017 containing “Provisions on entertainment and delegations to the Government for the reorganization of the subject”. In particular, art. 2 delegates to the government the task of reorganizing the legislative and regulatory provisions concerning opera-symphonic foundations, theatres, music, dance, travelling shows, circus activities, re-enactments and historical carnivals, through the drafting of a single regulatory text called “Codice dello spettacolo” in order to give the sector “a more effective, organic and compliant with the principles of simplifying administrative procedures and optimizing spending assets, hence improving the artistic-cultural quality of the activities, encouraging their production, innovation and use by the public”. However, there are still no implementing decrees to date.

^[1]   The most recent reports are available at website http://www.spettacolodalvivo.beniculturali.it/relazioni-al-parlamento/

Last update: May, 2022

After the considerable attention shown by the fascist minister Giuseppe Bottai towards contemporary art, this sector, throughout the second half of the last century, was scarcely considered by the national legislator. The only intervention in support of artistic production was law no. 717/1949 entitled “Norms for art in public buildings” which in its original version, in order to create job opportunities for artists, provided that in the construction of new public buildings or in the reconstruction of public buildings destroyed by the war, the public administrations would have had to “allocate a share of no less than 2 per cent of their total cost to their embellishment by means of works of art”. This law has been the focus of numerous legislative changes aimed at soliciting its implementation and extending its scope. Lastly, Ministerial Decree May 15, 2017 updated the “Guidelines for the correct application of law no. 717 of 1949” and, referring to the partnership that has arisen between the arts and architecture, affirmed the opportunity to extend the application of law no. 717/1949 also to spaces intended for public use, in order to increase the public heritage of contemporary art.

Since the early 2000s there have been a few interventions for the definition of some organizational and procedural tools aimed at enhancing contemporary art; in 2001 the administration of cultural heritage endowed itself with a body dedicated to the promotion, incentivisation and enhancement of contemporary creativity, through the establishment of a DG for Contemporary Arts and Architecture. The office has undergone several changes over time and in 2019 its name was changed to DG for Contemporary Creativity with the expansion of skills to the sectors of cultural and creative enterprises, fashion, design and photography. Furthermore, law n. 29/2001 on “New provisions on the subject of initiatives in favor of cultural activities” provided in art. 3 the establishment by the ministry of a “Plan for contemporary art", in order to allow for the increase of the public heritage of contemporary art also through the acquisition of artworks by Italian and foreign artists. The Plan (which in 2021 has an overall budget of over 3 million euros) is managed by the DG for Contemporary Creativity and today represents the most important public intervention tool in the sector. The objective of the Plan is to support museums, public places of culture, as well as private non-profit entities managing publicly owned places of culture, in increasing their collections, through the financing of acquisitions and support for production of new artworks.

The aforementioned Heritage and Landscape Codex deserves a separate chapter, with its uncertain definitions in relation to contemporary works of art. In fact, the provisions for the protection of cultural heritage do not apply tout court, since they are the work of a living author or their execution dates back to less than seventy years (or fifty years if they are of an exceptional interest for the integrity and completeness of the nation's cultural heritage). On the other hand, contemporary works of art can be considered “cultural assets” - with all the consequences of the legal regime that this entails - if they are part of collections of museums, art galleries, galleries and other exhibition sites belonging to public bodies, or others, if the explicit declaration of their particularly important cultural interest has intervened.

Last update: May, 2022

In Italy there are 46 public State libraries managed directly by the Department of Libraries and Copyright of the Ministry of Culture. They perform the functions indicated by decree 417/1995, including the collection and conservation of Italian publishing production and the growth and enhancement of historical collections. As for the non-State bibliographic heritage, with the d.l. n. 78/2015 converted with law 125/2015, its protection, up to that moment exercised by the bibliographic superintendences of the regions, has been assigned to the State. Later, with Ministerial Decree 23 January 2016 n. 44, Archival and Bibliographic Superintendences were established in all regions, with the exception of those with a special statute. They provide for the protection and enhancement of archival and library assets in the area of ​​competence, functionally depend on the Department of Archival and Library Collections and can make use of the staff of Public State Libraries. Libraries have also been affected by the digital transformation process, as in 2005 the “Internet culturale” portal was inaugurated with the aim of making catalogues and digital collections of Italian libraries available. Lastly, the creation of "Alphabetica", the new portal of Italian libraries created by the Central Institute for the Single Catalogue of Italian Libraries (ICCU) should be mentioned. This portal, which has been online since December 16, 2021, allows you to consult the information databases managed by the ICCU as well as the digital materials stored by the Italian libraries that adhere to the National Library Service.

As for the publishing sector, in 2020 the new law on books came into force, namely the l. n. 15/2020 on “Provisions for the promotion and support of reading”. This intervention, as can be seen from the title of the law, aims to promote reading and the fight against educational poverty. It  provides for the creation of a National Action Plan for the promotion of reading, with an endowment of 4,350,000 euros per year starting from 2020. Municipalities and regions can join this Plan through the stipulation of local reading agreements concerning activities aimed at increasing regular readers in the reference areas (Article 3). The other interventions envisaged by the first part of the law meet the same purposes, such as the establishment of the Italian Book Capital (Article 4) and the “Carta della Cultura”, worth 100 euros to be used by disadvantaged families for the purchase of books (Article 6). The law also introduces important innovations regarding discounts on the sale price of books, reducing its maximum limit to 5%, from the previous rate of 15%. Bookstores can organize promotions with a 15% discount limit only once a year and in the months established by a specific ministerial decree. Furthermore, the possibility for publishers to run promotions one month a year (never December) is confirmed, but the discount limit has been lowered from 25 to 20%. These provisions have been welcomed by small publishing houses and small bookstores that cannot afford competition based on strong discounts, such as those applied by the giants of the web. Publishers, producers and persons in any case responsible for a publication are also obliged to deposit a certain number of copies with designated institutes. The reference legislation is contained in Law no. 106/2004 on “Rules relating to the legal deposit of documents of cultural interest intended for public use” and in the subsequent “Regulation containing rules on the legal deposit of documents of cultural interest intended for public use” (Presidential Decree No. 252 of 3 May 2006). While the law specifies in Article 1 that “[...] documents intended for public use and usable by reading, listening and viewing, whatever their technical production, edition or dissemination process [...]” are subject to mandatory filing, the regulation clarifies the methods by which the deposit must take place, providing for this purpose a National Archive (consisting of the 2 central national libraries of Florence and Rome), and a Regional Archive (consisting of a multiplicity of territorial depository institutions).

Last update: May, 2022

Until the second half of the 1970s in Italy, the radio and television service was entirely reserved to the State through the assignment to a state-owned company (RAI - Radiotelevisione Italiana). The RAI reform law (Law 103/1975) confirmed the reserve in favor of the State for national radio and television broadcasts and, at the same time, allowed private individuals, subject to government authorization, to carry out radio and television activities at local level. However, given the failure to introduce this authorization regime, the private broadcasters began to "occupy" the various available frequencies and, by connecting with each other, they ended up creating real national networks, eluding the State reserve in reference to national broadcasting. This situation led the government to introduce, with d.l. n. 807 of 1984, a transitional regulation that allowed private broadcasters to continue their activities, pending an organic reform law. In the meantime, RAI and the Mediaset group had assumed a dominant position, creating a duopolistic structure considered by the Constitutional Court to be detrimental to the principle of information pluralism (Constitutional Court sentence no. 826/1988). This prompted the legislator to adopt a law for the reform of the radio and television system (Law no. 223/1990), which marked the end of the reserve to the State on radio and television activities and the introduction of a mixed public and private system, while providing for an anti-concentration regulation aimed at avoiding the formation of dominant positions in the private sector. The subsequent law no. 249/1997 established the Authority for Guarantees in Communication (AGCOM), with supervisory powers over the press, TV, radio and telecommunications, and introduced further anti-concentration measures, in particular providing for the prohibition of a subject receiving television concessions to "broadcast more than 20% of the analogue television networks and of national television programmes". The regulatory framework changed further in the early 2000s when, with the transition from analogue to digital, Law n. 112/2004 was adopted, following the proposal of the Minister of Communications of the second Berlusconi government. The law was later transposed into the Radio and Television Consolidated Text /TUSMAR (Legislative Decree No. 177/2005) and introduced a complex system of limits and prohibitions created to safeguard the Mediaset-Rai duopoly and to allow Mediaset to derogate from the anti-concentration measures introduced by the law n. 249/1997.

In the meantime, the European directive “Audiovisual media services” (2007/65 / EC), by aligning the legislation to the new technological context has, on the one hand, simplified the regulatory framework of linear audiovisual services (TV, internet, mobile telephony) and, on the other hand, introduced minimum rules for non-linear audiovisual services (on demand). The indications of the European legislator have been implemented by legislative decree n. 44/2010, which intervened on numerous provisions of the Radio and Television Codex, introducing obligations for the suppliers of linear and non-linear services regarding programming and investment in European works. It was subsequently modified and integrated by Legislative Decree 204/2017 and Legislative Decree 59/2019, through a complex system of programming and investment quotas and sub-quotas reserved respectively for European and Italian works.

The Italian regulatory framework relating to the provision of audiovisual services has recently changed in light of the approval of the new TUSMA (Legislative Decree No. 208/2021) adopted as the implementation of Directive (EU) 2018/1808, amending Directive 2010/13/EU. This provision extends the application of some rules to video sharing platforms and audiovisual content shared on certain social media services. Among the general principles placed as a guarantee for users, there is ample protection for freedom of expression, including freedom of opinion and of receiving or communicating information or ideas without borders, while respecting human dignity, the principle of non-discrimination and of contrasting hate speech, as well as the objectivity, completeness, loyalty and impartiality of information.

Safeguarding ethnic diversity and cultural, artistic and environmental heritage, both nationally and locally, also falls within the general principles. In addition, in order to protect linguistic minorities, provision is made for reserving a share of transmission capacity in the local area for audiovisual media services that express the same linguistic minorities (on this point, see also paragraph 4.1.8). The following article 5, on the other hand, dictates the general principles set to safeguard pluralism and competition aimed at avoiding the establishment or maintenance of positions of significant power. To this end, art. 51 attributes to AGCOM the task of ascertaining the existence of possible positions damaging pluralism on the basis of a wide range of parameters, regardless of the achievement of predetermined thresholds. With this provision, the legislator reformed the previous TUSMAR (Legislative Decree No. 177/2005), also in consideration of the jurisprudence of the Court of Justice on the point. With regards to the obligations related to programming and investment in European works, the legislator has ordered an increase in the relative quotas. In particular, for on demand suppliers (Netflix, Amazon Prime, etc.), a significant increase in investment obligations in European and Italian productions is envisaged, considered by many to be penalizing and discriminatory towards streaming players. The TUSMA, in Chapter III dedicated to the provisions on advertising, while introducing stricter limits on advertising crowding, also establishes a ban on audio-visual commercial communications relating to gambling. This prohibition is in continuity with the legislation introduced by the so-called Dignity Decree (Legislative Decree no. 87/2018), which prohibited for the first time any form of advertising, even indirect, relating to games and bets with winnings and cash prizes. The prohibitions expressed by the TUSMA and the Dignity decree represent the final destination of a regulatory process aimed at dictating more stringent rules in the online gaming and gambling sector.

Last update: May, 2022

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