Revision as of 16:40, 3 September 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 - but the more corageous (so to speak) attempt, the so called "Corasaniti draft" [Mon01] [Cam01] has been firmly and rather unpolitely rejected by Mr. Masi of the office of the President of the Council of Ministers. Such an apparently internal and obscure querelle is cited as a particular example of a more general trend in Italian politics and law-making process - and, consequently, in copyright-related areas as well - whereas the general goal of producing a good, balanced and fair legislation is often sacrificed in the name of more or less petty "fights for power", if not because of well-organized political pressure by lobbying groups.

The latest version of Italian author's rights law is available 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 to that same process by "civil society" at large - the result of political parties not launching any kind of consultative process on the matters under discussion and of copyright issues still being, at the time, 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 (see infra). TODO: should I elaborate on this point?

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 “fair compensation” – 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) ofLegislative 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.

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

• from Caso's article, see art. 171-ter, letter. f-bis, and note 45
• parallel between the Australian decision in Stevens v Kabushiki Kaisha Sony Entertainment and the qualification of Playstation's ROM chips as TPMs: page 16

TODO: update with case law, specifically ordinanza of December 31, 2003 by the Tribunale of Bolzano on Playstation mod-chips, and decision n. 138/05 of January 28, 2005 by the Tribunale of Bolzano (criminal section). The first contains an interesting analysis of what has to be considered a technological protection measure vis-à-vis the various usages that protected works or content can be put to.

TOFIX:

• Bolzano, 2003: Caso page 13
• Bolzano, 2005: Caso page 14
• Bolzano, 2005 (2): Caso Page 14

TOFIX:

• Caso's discussion on the Bolzano jurisprudence: page 15
• Ferrari's discussion on exhaustion of rights and private copy: note 57

Peer Collaboration

Themes of this section: Promise of digital technology to share content and produce content collaboratively. Inherent conflict with copyright law, esp. with regard to sharing, see P2P file-sharing. However, downloading in some countries fair use right and/or covered by private copying exception, respectively. Regarding rise of amateurs and peer-collaboration: problems esp. with regard to creative re-use of copyrighted materials, e.g. mash-ups, fan-fiction, or the like.]

TODO: analysis of the modifications put forth by Law 128 of May 21, 2004 (the "Urbani law"), with specific regards to the change of art. 171-ter(1) (from "a fini di lucro" to "a fini di profitto") and art. 171-ter(2) (addition of point "in violazione dell'art. 16, per trarne profitto, comunica al pubblico immettendola in un sistema di reti telematiche, mediante connessioni di qualsiasi genere, un'opera dell'ingegno protetta dal diritto d'autore, o parte di essa").

Universal Access

(esp. Art. 5.3(a); Art. 5.3(b); Art. 5.3(c) EUCD)

Universal access to various forms of digital content, as mentioned above, is one of the promises of digital technology and has become one of the core policy goals of today’s information society. Indeed, digital networks enable us to distribute information, knowledge, and entertainment almost instantly across the globe at marginal costs close to zero, and never before has content been accessible to such a great number of people at the same time. Universal access with its diverse issues – including aspects such open access to knowledge, the interest in long-term availability and preservation of information, or the recognition of copyrighted works as a building blocks of future creations – interacts in various ways with copyright law, and policymakers at the international, regional, and national level were required to responded to the challenges associated with the transition from analog/offline to digital/online media. As far as the EUCD is concerned, Art. 3 can be seen as a specific response to the digital distribution phenomenon, granting the right holders exclusive control over any communication or making-available of works to the public.

It is a hotly contested question as to what extent these new rights are in tension with or even contradictory to the vision of universal access to information and knowledge. In any event, the answer to this question depends in important respects on the interface between the exclusive rights on the one hand and exceptions on the other hand. In the context of the EUCD and its transposition into national law, respectively, three issues are of particular importance in this respect: (a) teaching conditions (Art. 5.3(a) EUCD); (b) exceptions for archives and libraries (Art. 5.2(c)), and (c) access to and use of copyrighted works for people with disabilities (Art. 5.3(b)). These topics are further explored in the next section.

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: they must pay a bill for every page being copied. 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. All these limitations, however, already existed in Italian copyright law before the implementation;
• 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. 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(d): “quotations for purposes such as criticism or review” are allowed, but they must not have commercial purposes when performed for scientific research and teaching. This is introduced by s. 9 of the Italian implementation, which modifies the old copyright law (no. 663, April 22, 1941). The old law, however, allowed quotations without referring at all to their “non-commercial purposes.” The implementation introduces a clear limitation to the old exception's extent, and the reason of this change cannot be justified by the need to fulfil the European Directive;
• 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. 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 regarded by the copyright 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, but the existing copyright law excluded plans of buildings from the exclusive reproduction right (TODO: check whether the latter is true, I am not sure);

Legislative Decree 68 of April 9, 2003 reminds the readers that all the exceptions provided by the law can be applied only as long as they don't conflict with the normal use of copyrighted works, and don't cause unjustified prejudice to rightsholders - the usual Berne three-step test.

The interaction between technical protection measures and exceptions and limitations is informed by the general principle that TPMs should not be circumvented; however, 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

• adopt "proper solutions" and "find proper agreements" (early drafts of the decree explicitly required right-holders to remove TPMs when it was necessary to allow people and institutions to act according to the exceptions they are entitled to) to allow third parties to exercise the exceptions they are entitled to TODO: write a proper list;

• make sure that TPMs allow people to make one private copy (even if analogue) of the works they've had legal access to, as long as it doesn't interfere with the normal use of the works themselves, and doesn't cause unjustified prejudice to rightsholders (TODO: are rights holder obliged to do anything in this case? TODO: talk about the initiative by Scarichiamoli! for the right to a digital private copy);

Any dispute related to point 2 above must be evaluated by a Permanent Copyright Consulting Committee, 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 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 (the same critique has been raised about the English law proposal that implements the Directive[3]);

• as far as the law prescribes, the Committee members only come from the entertainment and copyright industries, without any users’ representatives; it is going to mediate in disputes regarding a matter in which it cannot be impartial, due to the evident conflict of interests.

Teaching exception

According to Art. 5.3(a) EUCD "Member States may provide for exceptions and limitations to the exclusive reproduction right of the author and the right to make a work available to the public for use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial use purpose to be achieved".

Exception for archives and libraries

Art. 5.2(c) EUCD states that Member States may allow that publicly accessible libraries, educational establishments or museums or archives may make specific reproductions which are not for direct or indirect economic or commercial advantage.

Furthermore Art. 5.3(n) EUCD gives Member States leeway to make an exception for use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections.

Access to and use of copyrighted works for people with disabilities

[see Art. 5.3(b) EUCD plus national implementations

Political and Cultural Participation

Themes of this section: empowerment of the individual; exceptions aimed at fostering “good citizenship” in the political sense; exceptions aimed at fostering critical review and/or creative interaction with copyrighted materials for political and/or cultural reasons.

(Art. 5.3(c); Art. 5.3(d); Art. 5.3(f); Art. 5.3(i); … EUCD)

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 “particolare” e “concreta”, Interlex, 23/02/06, available at http://www.interlex.it/copyright/amonti84.htm .

[Cor01] M. Cammarata, La “bozza Corasaniti” è solo un piccolo passo, Interlex, 03/11/05, available at http://www.interlex.it/copyright/piccolopasso.htm

[Sen01] Sena et al, Diritto d’autore e diritti connessi nella società dell’informazione, Milano, 2003

[Spo01] Spolidoro, Una nuova riforma per il diritto d’autore nella società dell’informazione, in Corriere giur., 2003, 845

[Fab01] Fabiani, L’attuazione della direttiva CE su diritto di autore nella società dell’informazione. Un’analisi comparativa, in Dir. autore, 2003, 331

[Cas01] Casellati, Protezione legale delle misure tecnologiche ed usi legittimi. L’art. 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