Italy

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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:

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

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)).

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)

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."

Moreover, 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)). Applying a "modchip" to a Playstation is therefore not a violation of art. 171ter(f-bis), insofar as such "modchips" do have a legitimate use.

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 producd 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 (art. 16) and distribution (art. 17). [Lun01] gives a rather peculiar interpretation, i.e. that downloading for personal use would be covered by the right to a private copy ex art. 171sexies. It might be argued, however, that a 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.

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: 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 (art. 71-quinquies(1));
  • 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) 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);

art. 55 art. 68(1) 68(2) art. 69(2) art. 70(1) 71-bis 71-quater 

TODO: write a proper list;
  • make sure that TPMs allow people to make one private copy (even if analogue) of the phonograms or videograms 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 as long 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 when an analog copy is possible, TPMs should be respected; even worse, art. 71-sexies(3) states that the right to a private copy does not apply in case the work is such that members of the public may access it from a place and at a time individually chosen by them, or when "access is allowed on the basis of contractual agreements" (suggesting that online contracts can in fact contain provisions that prohibit private copying). Scarichiamoli!, an Italian grass-root group, has launched an initiative aimed at changing art. 171-sexies so that it explicitly and always grants 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

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

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