Italy

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 quasi-total 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.

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.

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