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.

At the time, one of the most active organizations that tried to make politicians aware of the "dark side" of the EUCD was AsSoLi (Associazione Software Libero), an Italian no-profit association promoting Free Software. Other organizations were either not particularly interested in the subject, or focused on very sectorial issues such as the proposed levy on recording equipment.

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;

· protected works as per s. 23 (which gives rightsholders the possibility of adopting “technological means of protection”) already have an intrinsic expiration date, because they depend on proprietary formats, specific operating systems and 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 our cultural memory”;

· s. 28 punishes “private” and “security” copies;

“fair compensation” causes a plethora of problems, amongst which:

· it causes a grave economic prejudice to the production of “private copies”, even though “private copies” are allowed by the very same Directive which is being implemented;

· it is applied without regard to specific cases (as considered by the Directive) and in an indiscriminate way, so that even people who reproduce personal works are subject to the “fair compensation” (in the form of more expensive blank CDs, for example);

· it will favour criminal organisations that deal with copied CDs and tapes, which will become even cheaper than the original;

· it will place a noticeable burden on the Public Administration, which uses digital formats and will have to pay for the “fair compensation” – in the end, it will be citizens at large who will pay for it;

· the 15% limit to copies made in public libraries is too strict and has already caused many interpretation and implementation difficulties, which in the end will damage public usage of libraries;

· research is seriously hindered by the proposal (for example, copying a scientific article that constitutes more than 15% of a piece of work);

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