Cultural heritage law beyond (global, technical, and technological) frontiers

In 2015, the European Commission launched the Digital Single Market Strategy in the attempt to expand the benefits of the internal market in the digital world, by removing barriers to the provision of digital content across borders. From this perspective, the so-called geo-blocking, namely the restricted access to contents based upon the user‘s geographical location, was considered as something capable of hindering the creation of a single market: this is the reason why this practice was banned by Regulation 2018/302, even if copyright-protected works (such as audiovisual ones) were excluded from the scope of this act. This contribution focuses on the reasons for this exclusion, also considering the effects in terms of consumers‘ welfare, and tackles the interplay between the geo-blocking Regulation and competition law instruments, in order more specifically to see whether (and at what cost) they can be used to promote the cross-border provision of audio-visual services.

The increasing use of Non-Fungible Tokens in the art world - and particularly in the art market - lies at the juncture of multiple legal issues which, far from being limited to private matters, also extend to public law implications. This contribution focuses on two questions at stake. First, the massive shift to the domain of intangible: will existing regulations be challenged to acknowledge a comprehensive notion of immaterial culture within which digital art is also included? Will this thereby imply the development of suitable protection and enhancement measures for the intangible works that will enter the public sphere? Final considerations will then concentrate on the outward friction between the inherent nature of NFTs, which is to create scarcity by conferring an ownership title (and in most cases a social status), and the opportunity to democratize access to culture that digital art entails, in terms of creation, collection, and, above all, enjoyment.

The “copyright Directive“ has further harmonized copyright law to reduce the difference between the value obtained by digital platforms from exploiting creative content and the proceeds transferred to copyright owners (“value gap“). Its adoption marked the end of a legislative process characterized by fierce lobbies, high academic debates, and public protests. Indeed, the Directive is a paradigmatic example of the challenges behind regulating the internet. How to protect the rights threatened by the internet without undermining the freedom of expression online? How to avoid creating competitive advantages for the tech giants? Compliance with new rules may be more challenging for less established players. Given the power imbalance between digital platforms and protected actors, how can the new rights' effectiveness be ensured? This work analyzes the choices of the Directive to handle these concerns.

The use of indicators in social science analysis began to spread in the ‘70s and this happened for the regulation of different sectors - important decisions are taken by observing the reality as it is summarized and qualitatively described by (global or local) indicators. But this is not the case for the policy-making process underpinning the enactment of regulations for the protection and valorization of cultural heritage. The use of a tailored indicators framework is advisable for several different reasons, and positive outcomes can be achieved not only by having ad hoc instruments available but also by the provision of legal and administrative conditions for their implementation. This presentation wants to evaluate if and how indicators tailored to assess cultural heritage policies and activities from a ‘regulatory device‘ can become a ‘legal device‘.