Presentations from all partners

http://filmerasmus.weebly.com/licensing-and-copyright.html

Italian Copyright

Italian copyright law are found in Law no. 633 of 22 April 1941

Copyright law in Italy has not changed much since the first enactment of these provisions. There have been amendments to Law no. 633 to incorporate specific works such as computer programs and databases, or to add or alter user exceptions, but generally Italian lawmakers have been reluctant to institute any major or fundamental reforms. Italian copyright law is based strongly on authors' rights. Exceptions to authors' exclusive rights are limited — there is no provision equivalent to fair use or fair dealing — and are generally interpreted restrictively by the courts.

The subject matter owed protection is provided for (identically) in both the Civil Code (art. 2575) and Law no. 633 (Art. 1): "The object of the author's right is the work of intellect of creative character that belongs to the sciences, literature, music, figurative art, architecture, theatre, and cinematography, no matter the style or form of expression." There is no requirement that the work be fixed in any medium to attract copyright protection.

While Art. 1 requires only that the work be "of the intellect" and "of creative character", Italian courts and scholars have interpreted the provision as conditioning copyright protection on four elements: (1) a particular (not high) degree of creativity; (2) novelty; (3) the work's objectification or externalization; (4) affiliation to art or culture.

Art. 2 lists non-exhaustive examples of protected subject matter ("In particular are protected..."): literary, dramatic, scientific, education, and religious works (whether in written or oral form); musical compositions with or without words; choreographic works and pantomimes; computer programs and databases.

Official acts of the State are not entitled to copyright protection (Art. 5).

The Civil Code states that the rights belong to the author and the author's successors, subject to special circumstances (Art. 2580).

Italian law does not require any copyright formalities such as registration or deposit for copyright to subsist. The Civil Code (Art. 2576) and Law no. 633 (Art. 6) provide that the rights are first acquired upon creation of the work as a particular expression of the intellectual effort.

In the author-centric Italian copyright law, moral rights are eternal, non-transferable, and inalienable. The author, even after transfer of economic rights, retains the right to claim authorship and to oppose mutilation of the work or any act that would be prejudicial to her honour or reputation (Arts. 20, 22). Upon the death of the author, these rights may be relied upon by her family and descendants (Art. 23).

The duration of economic rights for most works and for photographs in Italian law is 70 years from the death of the author (Art. 28). Where there are multiple authors, and for cinematographic works, the economic rights expire 70 years after the death of the last surviving author (Arts. 26, 32). For works in which the economic rights are owned by government, academies, public bodies, and non-profit cultural organizations, the duration of the economic rights is 20 years from the first publication (Art. 29).

Italian copyright law allows for collective management of rights. The role of intermediary, however, is legally reserved for the Società italiana degli autori ed editori (SIAE) (Italian Society of Authors and Publishers).

 

International copyright treaties

Several international treaties encourage reasonably coherent protection of copyright from country to country. They set minimum standards of protection which each signatory country then implements within the bounds of its own copyright law.

 

What is copyright

PROTECTION FOR YOUR CREATIONS

Copyright is an institute protecting creative works.

Art. 1 of Copyright law establishes that protection should concern all the intellectual creative works belonging to:

• literature
• music
• figurative arts
• architecture
• theater and cinematography

no matter the way and the type of expression.

Computer programs also, seen as literary works, belongs to the field of protection of the Copyright Law.

Creativity, what this concept means for the law
As for the concept of creativity, it is not considered in absolute terms but it refers to a subjective, individual expression of an objectiveness.

Therefore, even a work that is the product of a “creative act”, also a minimum one, reflecting itself in the external world, can be protected.

As a consequence, not only “literary” works per se (poetry, narrative, essay writing, ect.) but also those texts in which the word communicates information created and organized in a subjective and independent way by the author, for example, are protected (Cass. Civ. 11953/1993).

In order to be protected, the work need to have a form of expression.

The protected form is the “external” one, like the text of a book or the realization of a painting but also the “internal” one, considered as the structured organization of some ideas, the plot of a book, the relation among the subjects of an image.

Simple ideas instead are not protected. Ideas are freely appropriable, as a teaching from a book, and there is no need for asking the permission of the author.

The author of the work

PROTECTION FOR YOUR CREATION

The holder of the copyright is the one who created the work.

As explicitly indicated in art. 8 CL,

The author of the work is, unless it is proven otherwise, the one who is indicated as such in the forms of use, or, is announced as such in the acting, execution, representation or radio broadcast of said work.

Therefore, the one who claims to be the author is such unless it is proven otherwise.

If a work is created by more than one person, copyright lies with them all.

Employers and projects, what happens in these cases

In some case copyright does not belong to the author.

Art. 12-bis CL provides that

Unless different agreements, the employer owns the exclusive right to benefit from the computer program or the database created by the employee during the fulfilment of his/her tasks or upon instruction given by the employer him/herself.

Similarly, with regard to photography, the art. 88 CL establishes that

Nevertheless, if the work was created during the fulfillment of his/her working contract, within the limits of the object and the purposes of the contract, the exclusive right lies with the employer. Unless different agreement, the same rule is applied in favor of the purchaser in the case of a photography to an object owned by the purchaser, unless the one who will use the picture for economic purposes pays the photographer with an appropriate amount.

A peculiar case concerns public administrations to which belong the copyright for all the works created and published in their name on their behalf and at their expenses (art. 11 CL). The same right is owned by non-profit private organizations, academies and other cultural organizations with reference to their records and publications.

Copyright assignment and license

The economic rights of the author may be assigned or licensed upon payment or for free.

The assignment of the copyright implies the total transfer to the purchaser of a certain right that has to be well specified in the contract of assignment.

It is necessary to distinguish between the assignment of the work (the so-called “corpus mechanicum”) and author’s rights on the work (the so-called “corpus mistycum”), which except different agreement, belong to the author even after the assignment.

According to art. 109

The assignment of one or more samples of the work does not imply, unless agreed otherwise, the transfer of the rights to use.

Furthermore, we deem that the purchaser of the work cannot use its image for advertising purposes or to sell pictures representing it. Some people think that the purchaser of the work cannot even show it without the consent of the author, but this is not the majority opinion.

The transfer of the proprietary rights of the author to the purchaser, in whole or in part, has to appear in a specific contract.

License contracts
The license contract is a contract with which the author allows to a third party the right to use his/her work for a precise period or purpose but s/he maintains full ownership.
Once the license contract lapses, the author has back all the rights on the work and s/he may give them to someone else.

Both the assignment and the license can concern all or part of the rights. License may be exclusive or not exclusive.

Law explicitly regulates publishing, representation and performance contracts. All the other types of contract should be arranged on the basis of the specific requirements of the case.

Contracts of assignment and of license of the author’s rights are very complex and require a specific attention and competence. For this reason, we suggest to resort to an expert of the field before arranging or signing one of these contracts

The transfer of the right of use has to be proven in written

(art. 110 CL).

Duration

HOW LONG DOES COPYRIGHT LAST?

the right of economic use of a work lasts for the author’s whole life and for the 70 years following his death (art. 25 CL).

After this period, works are in the “public domain” therefore, works belonging to authors dead 70 years ago or more can be freely published.

Even if the rights in works were assigned on the basis of a publishing contract with a publishing house, aside from the fact that the longest duration of such contract is of 20 years (art. 122 CL), it has as object the rights of use belonging to the author

with the content and the duration decided by the law

(art. 119 CL) therefore, according to the art. 25CL, it cannot exceed the copyright’s duration.

To this rule is to be added the art. 20 CL which protects the author’s moral right exercised, according to art. 23 CL, by the heirs «without time limits».

Thus, the publication of an out-of-copyright work is possible if the honor of the artist is not compromised or if prejudice does not arise against the author. In this case, the heirs may speak out in defense of the dead author.

For some types of works the duration of copyright varies, in particular for the works which benefit of related or “sui generis” rights.