Revision as of 16:54, 20 November 2006

Legislation and Materials

The core of Italian copyright - or, more correctly, author's rights - legislation is Law 633 of April 22, 1941. Looking at the date of enactment, the reader can easily imagine how the flow of time and the subsequent strata of modifications applied to the original text did not help produce a coherent result. Many requests of a coherent, general reform of the law have been raised - including the so-called "Corasaniti draft" [Mon01] [Cam01] that has been rejected by Mr. Masi of the office of the President of the Council of Ministers.

The latest available version of Italian author's rights law can be found here:

 Law 633 of April 22, 1941 (updated text)

Please notice that this version is not up to date with regards to Legislative Decree 140 of March 16, 2006 ("Attuazione della direttiva 2004/48/CE sul rispetto dei diritti di proprietà intellettuale") which, as the name implies, is the Italian implementation of Directive 2004/48/EC of the European Parliament and of the Council on the enforcement of intellectual property rights. For a discussion of the potential effects of Directive 2004/48/EC in the Italian system, see inter alia [Mon02].

Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society has been implemented in Italy through the Legislative Decree 68 of April 9, 2003 ("Attuazione della direttiva 2001/29/CE sull'armonizzazione di taluni aspetti del diritto d'autore e dei diritti connessi nella società dell'informazione").

General Remarks on Implementation

To an external observer, the most striking aspect of the legislative process that led to Legislative Decree 68 of April 9, 2003 is probably the lack of participation by "civil society" at large - the result of mass media such as TV and radio not covering the issue, political parties not launching any kind of internal or external consultation process on the matters under discussion and of copyright issues still being a somewhat exotic subject that only a handful of scholars, lobbyists or activists would be interested in. Nevertheless, several associations and organizations did indeed try - with very little success - to influence the decisional process (for more details, see [Glo01]).

Almost all political parties were in favour of stronger copyright protection, and the issue of technical protection measures was basically not considered as problematic at all. The only party objecting to the general principles underlying the EUCD was the left-wing Partito della Rifondazione Comunista, whose representative in the Culture Committee (the discussion was not held in the Parliament at large, another sign that the EUCD and copyright issues in general were considered at the time a "technical", not a "political" matter), Ms Titti de Simone, declared that

• the "high level of protection" referred to by the decree was not actually authors, but media majors;
• the decree did not consider new forms of distribution, such as "copyleft" licensing, which guarantee the moral rights of the authors and do not limit the private, non-commercial uses of the works[18];
• the vast diffusion of literary, musical, visual and multimedia works which the "digital revolution" made possible did not hinder but actually helped selling the original works;
• the introduction of "technological means of protection" and the protection against their circumvention constituted an addition to another subtler issue, i.e. the fact that many digital works are "protected" in the long term by reason of their dependence on proprietary formats, specific operating systems and/or hardware, which in the future will be obsolete or not longer available; the legal and technical impossibility to transfer the aforementioned works to another format will produce an "attack on [Italy's] cultural memory";
• the ability for users to make "private" and "security" copies became somewhat dependent on respecting TPMs;
• "fair compensation" - the basis for the levy applied to blank CDs, CD/DVD recorders, hard disks, etc - would cause several problems, among which:
  • an economic prejudice to the production of "private copies", even though "private copies" are allowed (albeit in a somewhat limited way) by the EUCD;
  • an application with no regard to specific cases (as per the Directive) and in an indiscriminate way, so that even people who reproduce personal works are subject to the levy (e.g. more expensive blank CDs);
  • it would favour criminal organisations that deal with non-authorized copies of CDs and tapes, which will become even cheaper than the original;
  • it would burden the Public Administration, which will have to pay for the �$B!Hfair compensation�$B!I – in the end, citizens will pay two times, through their direct purchases and through tax-based funding of the PA;
• the introduction of a 15% limit for copies made in public libraries was too strict and subject to interpretation, which in the end would chill public usage of library resources; for similar reasons, research would be seriously hindered by the proposal (for example, when having to copy a scientific article that constitutes more than 15% of a piece of work);

Notwithstand Ms De Simone remarks, the decree was passed in the Committee and later on in the Parliament with practically no modification to the original proposal by the rapporteur.

Core Issues

Anti-Circumvention Provisions

Art. 23 of Legislative Decree 68 of April 9, 2003 updated Law 633 of April 22, 1941 by introducing art. 102quater and art. 102quinquies, which define respectively the concept of "efficaci misure tecnologiche di protezione" ("effective technological protection measures") and "informazioni elettroniche sul regime dei diritti" ("electronic information on rights' regime", i.e. "rights management information" or RMI in WCT/WPPT parlance).

The first are:

 all the technologies, devices or components that, in the normal course of their functioning, are aimed at
 blocking or limiting acts that are not authorized by the rights holder [ ... ] [ such technologies, devices
 or components ] are considered effective when usage of the protected content is controlled by the rights holders
 through the application of an access device or a protection procedure, such as encryption, distortion or any 
 other transformation of the work or of the protected content, or [when such usage] is limited through a copy
 control mechanism that achieves the goal of protection.

The second are:

 [information that] identifies the work or the protected content, as well as the author and any other rights
 holder.  Such information can furthemore contain indications on the terms and conditions of use of the work
 or of the content, and any number or code that represent such information or other elements of identification.

Art. 26(2) of Legislative Decree 68 of April 9, 2003 updates Law 633 of April 22, 1941 by introducing art. 171ter(f-bis) and art. 171ter(h), which adds to the list of infringing acts subject to criminal law, respectively:

 [the act] of building, importing, distributing, selling, renting, giving under whatever title, advertises for sale or 
 rental, or keeps for commercial reasons devices, products or components or gives services that have the main goal or
 the commercial use of circumventing effective technological protection measures as per art. 102-quater or have been
 designed, produced, adapted or built with the main goal of making it possible or easing the circumvention of such
 measures.

and

 [the act] of removing or altering the electronic information as per art. 102-quinquies, or distributes, imports with
 the goal of distributing, broadcasts on radio or television, communicates or puts at the public's disposal works or
 other protected content whose electronic information has been removed from or altered.

such acts are punished with a "multa" (a fine) between 5 and 30 million "lire" (circa between €2,500 and €15,000) and imprisonment from six months to three years.

It should be noticed that art. 171ter explicitly mentions that the above measures apply only when the act is committed for non-personal use. The law itself does not define, however, what constitutes personal use, in particular with reference to acts such as online file-sharing that have been construed as "private copying" in other jurisdictions [TODO: put reference to Italian discipline on private copying] [TODO: put reference to the article on Urbani and private use]

The Italian implementation of the EUCD has been criticized because of its rather confusing approach to several key elements, including the definition of what constitutes a TPM (see inter alia [Rca01] and - taken from the latter and reproduced here for sake of completeness - [Sen01] [Spo01] [Fab01] [Cas01] [Spa01] [Des01]).

Case law has considered the definition of what constitues a TPM in three different instances, namely in:

• Bolzano tribunal, ordinanza of December 31, 2003 (non-authoritative text available)
• Bolzano tribunal (criminal section), decision n. 20/12/2005 (non-authoritative text available)
• Bolzano tribunal (criminal section), decision n. 138/05 (non-authoritative text available)

All three cases regarded the so-called "modchips" to be applied to Playstation consoles. What follow is a synthesis/adaptation of the legal reasoning as can be found in [Rca01].

In the first case, the tribunal concluded that "modchips" do not constitute a violation of art. 171ter(f-bis). The tribunal started its reasoning from the following points:

• Law 633 of April 22, 1941 protects author's rights and only indirectly the material devices through which such rights are substantiated;
• art. 171-ter(f-bis) of Law 633 of April 22, 1941 refers only to those devices or componets whose main goal is the circumvention of effective technological protection meauures;
• Law 633 of April 22, 1941 does not regulate the potential power, by the seller of a device, to prohibit modifications to the device with the goal to give it new functionalities;

With regards to the second point, the tribunal concluded that "modchips" do not have as their main goal to circumvent effective TPMs, insofar as the application of "modchips" can be motivated by several legitimate goals , including:

• reading imported CDs
• reading CDs which have not been produced by Sony
• reading the backup copy of CDs (which is explicitly allowed by Italian law)
• using the Playstation as a computer

This conclusion of the tribunal seemed to comply with recital 48 of Directive 2001/29 ("[s]uch legal protection should respect proportionality and should not prohibit those devices or activities which have a commercially significant purpose or use other than to circumvent the technical protection"); however, a literal analysis of the relevant Italian provisions, namely 171ter(f-bis), seems to suggest that one single "commercial use" might be sufficient to consider a "device, product or component" or a "service" as infringing.

With regards to the third point, the tribunal reminded that the clauses of license contracts that prohibit the reverse engineering or decompilation of the console software are ineffective insofar as they violate Italian civil code norms - specifically, according to the judge, art. 1341(1) that regulates the "general contract conditions" (i.e. the set of clauses that are pre-arranged by one of the parties in order to deal equally with all the relations of equal nature arising from the contract) and requires, in order for such conditions to be effective, the countepart to know them or to be in a position to know them using ordinary diligence.

In the second case as well the tribunal concluded that "modchips" do not constitute a violation of art. 171ter(f-bis). The tribunal started its reasoning from the following points:

• Playstation are, to all practical extents, full-blown computers which are sold in a "crippled" form by Sony
• Videogames are to be considered as software and, therefore, art. 171ter(f-bis) should not apply (but rather art. 171bis, which states that "whoever is not authorized to do so but duplicates, in order to make profit, computer programs or for the same goals imports, distributes, sells, keeps for commercial or entrepreneurial goals or rents programs using supports which are not marked by the Società italiana degli autori ed editori (SIAE), is subject to the penalty of imprisonment from six months to three years and with a fine from 5 million to 30 million lire. The same penalty is applied if the fact is related to any medium whoch only goal is to allow or ease the arbitrary removal or the functional circumvention of devices, applied to protect a computer program").

With specific reference to the second point, the tribunal reminded that

 "[...] Directive 29/2001/EC is to be applied only to issues related to phonograms and videograms [...] insofar as [...] products for 'consoles' 
 should be legally considered as software, such norms cannot be applied in this case."

The application of art. 171-bis, rather than of art. 171-ter, means that a single use of a device other than circumvention is sufficient to deem such device non infringing. According to the judget, "modchips" are to all extents capable of at least one single usage other than circumvention, including playing back of back-up copies: the qualification of videogames as software implied that users have the right to make a back-up copy - and of course, to use that back-up copy (ex art. 64ter(2) and 64ter(3)).

In the third case, the tribunal concluded that "modchips" do constitute a violation of art. 171ter(f-bis). The tribunal started its reasoning from the following points:

• the console is composed of hardware plus software, and therefore it is protected by Law 633 of April 22, 1941 (ex art. 64bis(1)); the transfer of related property rights is therefore limited by what the seller stipulates with the buyer;
• videogames are not composed only by software, but are true "opere dell'ingegno" ("creations of the mind")
• the Playstation 2 is an electronic device whose goal is to read only the videogames which are produced by Sony; the technological devices that inhibit the console to play videogames which are not produced by Sony are "certainly" effective TPMs as per art. 102quater, insofar as they are limiting acts that are not authorized by the rights holder, i.e. reading other videogames from the original ones that have been distributed in the same geographical area where the console has been sold;

On the basis of such premises, and noticing that:

• importing copyright-protected works from extra-European areas is a violation of the law (art. 17);
• there is not right to make a back-up copy of the videogame ex art. 64-ter, because the videogame can not be qualified as software;
• users have a right to make a private copy, but only respecting TPMs (art. 71sexies);
• using a Playstation as a computer would constitute a usage that was not authorized by the rights holder;
• reading the email exchanges between the defendants reveals that the main goal for which they were asking "modchips" to be installed was to run illegally copied videogames;

the tribunal concludes that the main goal of "modchips" is to circumvent effective TPMs, and are therefore illegal ex art. 171ter(f-bis).

See [Rca01] for further analysis of the case law, including a parallel with the decision of the Australian High Court in Stevens v Sony (Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58 6 October 20005) on whether Sony's technology does constitute an effective TPM. [Rca01] notices that unauthorized copy, importation and distribution of videogames can happen whether or not "modchips" are installed on a Playstation, while the Australian High Court states that "the definition of 'technological protection measure' must be one which catches devices which prevent infringement. The Sony device does not prevent infringement. Nor do many of the devices falling within the definition advanced by Sony. The Sony device and devices like it prevent access only after any infringement has taken place".

Peer Collaboration

Italian law and jurisprudence does not seem to consider unauthorized downloading of copyrighted content as covered by any exception - it is an illicit conduct and infringement of the rights holder's right to inhibit reproduction (art. 13 of http://www.giustizia.it/cassazione/leggi/l633_41.html Law 633 of April 22, 1941), communication to the public, which includes the right to make available the work to the public so that subject could access it at the place and time of their choosing (art. 16) and distribution (art. 17). [Lun01], after stressing that criminal penalties of law Law 633/41 apply only when the act is not committed for personal use, seems to suggest that such downloading for personal use would be covered by the right to a private copy ex art. 71-sexies. However, on the basis of an "a contrario" reading of art. 71-sexies(4) it might be argued that in the Italian legal system the right to a private copy assumes that the original copy had been legitimately acquired beforehand, which is not the case in most instances of P2P exhanges; moreover, art. 71-sexies(3) explicitly states that the provisions of comma 1 (containing a general permission to private copying) do not apply to the works or the protected material that has been made available to the public in such a way that members of the public can access the work or the protected content at the place and time of their choice, which is exactly what happens with digital file-sharing and in general with Internet downloading; last, not least, the provisions of art. 71-sexies apply only to videograms and phonograms - reproduction of computer programs is not covered by the privacy copying exception, although they fall under the provisions of art. 64-ter.

Universal Access

In general, most of the exceptions in art. 5 of the EUCD have been implemented by Legislative Decree 68 of April 9, 2003 or were already provided by Italian copyright law, but some remarks are due:

• Art. 5.2(a): "reproductions on paper or any similar medium" are limited to 15% of the whole work. The "fair compensation" must be provided by those who make the reproduction equipment available (art. 68(4) and art. 181-ter). There are a few exceptions for public libraries: they must pay a fixed annual bill (instead of the per-page one), and the 15% limit doesn't apply to rare works (art. 68(5));
• Art. 5.2(b): "reproductions on any medium made by a natural person for private use" are allowed as long they are performed by the person herself (without the help of third parties), and as long as the reproduction does not imply the circumvention of effective technological measures (art. 71-sexies - see infra for a more detailed discussion of this exception in Italian law). The "fair compensation" for right-holders has been implemented as a bill on devices such as blank CD-ROMs, hard disks, VCR equipment.
• Art. 5.3(c): "reproduction by the press, communication to the public or making available of published articles on current economic, political or religious topics [...]" has been implemented through art. 65;
• Art. 5.3(d): "quotations for purposes such as criticism or review" are allowed, within the limits needed by purpose and provided they do not create competition to the economic exploitation of the work; when performed for scientific research and teaching they must not have commercial purposes when performed for scientific research and teaching; plus, the title of the work, the name of the author, of the publisher and of any translator must always be quoted if they appeared on the original work (art. 70);
• Art. 5.3(e): "use for the purposes of public security" has been implemented through art. 67;
• Art. 5.3(f): "use of political speeches" has been implemented through art. 66;
• Art. 5.3(g): "use during religious or official celebrations organised by a public authority" is not mentioned in the Italian implementation, but the existing copyright law stated that the musical bands of the Italian army are allowed to execute copyrighted works without any "fair compensation" for right-holders, as long as the exhibition has no commercial purposes (art. 71);
• Art. 5.3(h): "use of works, such as architecture or sculpture, made to be located in public places" is not mentioned;
• Art. 5.3(i): "incidental inclusion of a work in other material" is not mentioned;
• Art. 5.3(j): "use for the purpose of advertising the public exhibition or sale of artistic works" is not mentioned;
• Art. 5.3(k): "use for the purpose of caricature" is not explicitly mentioned, but it is arguably regarded by the law as "quotation for criticism" (see above);
• Art. 5.3(l): "use in connection with the demonstration or repair of equipment" is not mentioned;
• Art. 5.3(m): "use of an artistic work in the form of [...] a drawing [...] for the purposes of reconstructing the building" is not explicitly mentioned;
• Art. 5.3(n): "use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals [...]" has been implemented through art. 71-ter;

With regards to the interaction between technical protection measures and exceptions and limitations, art. 71-quinquies obliges rights holders to:

• remove TPMs if it is required for public security, or in order to allow administrative, parliamentary or legal proceedings (art. 71-quinquies(1));
• adopt "proper solutions" and "find proper agreements" so that third parties that have legitimately acquired or have had legitimate access to the work or content are allowed to exercise the following exceptions to rights holders exclusive rights:
  • recording of the work by the public radio broadcaster (RAI) for later broadcasting, if the recording is destroyed or made unusable immediately after (art. 55(1));
  • storing of the recordings mentioned by art. 55(1) in official archives, insofar as these recordings have an exceptional value as a documentary and such recordings are not later used with commercial goals (art. 55(2));
  • reproduction of works for personal use, insofar as such reproduction is hand-made or made with reproduction means which are not suitable for distribution of the work to the public (art. 68(1));
  • photocopy of works that are stored in publically accessible or school libraries, and in public museums or archives, insofar as such photocopies are made by such entities in the course of their normal services and with no direct or indirect commercial advantage (art. 68(2));
  • reproduction of phonograms and videograms that contain cinematographic or audiovisual works or sequences of moving images (whether with sound or not) by State or public libraries, "cineteche" and "discoteche"; only one copy is allowed (art. 69(2));
  • resume, quoting and reproduction of parts of works and their communication to the public, insofar as they are made for criticism or discussion, they are limited to what is necessary to such goals, they do not compete with economic exploitation fo the work; in case resume, quoting or reproduction is made for teaching or scientific research such use must be only for illustrative purposes and for non-commercial goals (art. 70(1));
  • reproduction and "usage of the communication to the public" of works, if made by people with specific handicaps (decided according to the procedure outlined in art. 71-bis(2)) insofar such acts are directly linked to the handicap, have no commercial characteristic and are limited to what is required by the particular handicap under consideration (art. 71-bis);
  • reproduction of radio and TV broadcasting of works made by public hospitals and by public "institutions for prevention and punishment" (e.g. prisons), as long as they are made for purely internal usage and a fair compensation is given to rightsholders (art. 71-quater);
• make sure that TPMs allow members of the public to make one private copy (even if analogue) of phonograms or videograms (arguably and from an "a contrario" reading of art. 71-sexies(4), only those they have had legal access to) as long as it is not made by third parties, it is for personal use, with no direct or indirect commercial goal and insofar as it does not interfere with the normal use of the works and does not cause unjustified prejudice to rightsholders. It should be noticed that:
  • the combined wording of art. 71-sexies(3) and art. 71-sexies(4) is such that the rightsholders is not obliged to allow digital private copying, but only analogue private copying; while this is in line with recital 38 and 39 of the Directive ("[d]igital private copying is likely to be more widespread and have a greater economic impact. Due account should therefore be take of the differences between digital and analogue private copying and a distinction should be made in certain respects between them" and "[w]hen applying the exception or limitation on private copying, Member States should take due account of technological and economic developments, in particular with respect to digital private copying and renumeration schemes, when effective technological protection measures are available. Such exceptions or limitations should not inhibit the use of technological measures or their enforcement against circumvention", boldface added) it was felt by some that such restriction proved unreasonable and a public campaign has been launched by Scarichiamoli!, aimed at changing art. 71-sexies so that it explicitly and always grants the right to a digital private copy;
  • the provisions of art. 71-sexies(3) are such that the rightsholders is not obliged to allow digital copying (either analog or digital) in case the work as been made available to the public in such a way that members of the public can access the work at the place and time of their choice, or when access is allowed on the basis of contractual agreements;

Any dispute related to point 2 above must be evaluated by a Permanent Copyright Consulting Committe - instituted as per art. 190 - which will try to mediate between the conflicting interests of users and rightsholders. If this mediation fails, the dispute will be passed to the normal legal system. The complete procedure is described by art. 194-bis.

The Permanent Copyright Consulting Committee already existed in Italian copyright law, and is nominated directly by the Prime Minister every four years. Until now the Committee had mostly bureaucratic and technical consultation functions, but the implementation gives it a new role: the mediation of disputes between users and rightsholders.

This approach has two fundamental flaws:

• the Committee is a centralised authority that will handle disputes from the whole nation, causing bureaucratic delays and complications that will discourage people trying to defend their rights;
• according to art. 191, the Committee is composed by:
  • a president who is designed by the President of the Council of Ministers;
  • by a representative each of the Ministries of Foreign Affairs, Justice, Finances, Industry and Commerce
  • by two representatives of the Ministry of Education
  • by the general directors of the DGs for theather, cinema, press of the Presidency of the Council of Ministers, by the ispector for radio and TV broadcasting and from the head of the office for literary, scientific and artistic property of the Presidency of the Council of MInisters;
  • by the presidents of the confederations of workers and artists and of businesses, by three representatives (specialized on copyright issues) for each of such confederations, and by a representative of the confederation of workers as designed by the national confederation of "lavoratori dello spettacolo" (those who work in the "show business")
  • by the president of the Italian collecting society (SIAE)
  • by three experts on copyright (as decided by the President of the Council of Ministers)

Such composition is quite biased, with no users' or consumers' representative;

Teaching exception

With regards to art. 5.3(a) of the EUCD, see the discussion above on art. 70.

Exception for archives and libraries

With regards to art. 5.2(c) of the EUCD, see the discussion above on art. 68(2) and art. 69(2).

With regards to art. 5.3(n) of the EUCD, art. 71-ter is basically a translation thereof; however, art. 71-ter is not comprised among the exceptions that give raise to an obligation, on behalf of the rights holders, to make sure TPMs do not constitute an impediment for the exercise of such exception.

Access to and use of copyrighted works for people with disabilities

See the discussion above on art. 71-bis.

Political and Cultural Participation

TODO: I do not understand very well what this section should contain.

Bibliography/References

[Mon01] A. Monti, Timide e insufficienti proposte contro i padroni delle idee, Interlex, 03/11/05, available at http://www.interlex.it/copyright/amonti80.htm

[Mon02] A. Monti, Diritto d'autore: una legge �$B!Hparticolare�$B!I e �$B!Hconcreta�$B!I, Interlex, 23/02/06, available at http://www.interlex.it/copyright/amonti84.htm .

[Cor01] M. Cammarata, La �$B!Hbozza Corasaniti�$B!I è solo un piccolo passo, Interlex, 03/11/05, available at http://www.interlex.it/copyright/piccolopasso.htm

[Sen01] Sena et al, Diritto d�$B!Gautore e diritti connessi nella società dell�$B!Ginformazione, Milano, 2003

[Spo01] Spolidoro, Una nuova riforma per il diritto d�$B!Gautore nella società dell�$B!Ginformazione, in Corriere giur., 2003, 845

[Fab01] Fabiani, L�$B!Gattuazione della direttiva CE su diritto di autore nella società dell�$B!Ginformazione. Un�$B!Ganalisi comparativa, in Dir. autore, 2003, 331

[Cas01] Casellati, Protezione legale delle misure tecnologiche ed usi legittimi. L�$B!Gart. 6.4 della direttiva europea e sua attuazione in Italia, in Dir. Autore, 2003, 360

[Spa01] Spada, Copia privata ed opere sotto chiave, in Riv. dir. ind., 2002, I, 591

[Des01] M. De Sanctis, Misure tecniche di protezione e libere utilizzazioni, in Dir. Autore, 2003, 1

[Rca01] R. Caso, "Modchips" e diritto d'autore. La fragilità del manicheismo tecnologico nelle aule della giustizia penale, in 7(2) Ciberspazio e diritto, 2006

[Lun01] G. Lunardi, La legge Urbani non punisce la copia personale, Interlex, 2006, available at http://www.interlex.it/copyright/urbani6.htm

[Glo01] A. Glorioso, A. Scalas, Italian implementation of the European Union Copyright Directive (121), in I. Brown (ed.), Implementing the EU Copyright Directive, Foundation for Information Policy Research (125), September 2003, available at http://www.fipr.org/copyright/guide/