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.
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