In Italy, copyright is mainly governed by Law no. 633/1941 which provides for the protection of “intellectual works of a creative nature” belonging to literature, music, figurative arts, architecture, theatre and film, whatever the mode or form of expression (art. 1). The protection was then extended to photographic works, computer programmes, databases and industrial design creations afterwards (Article 2), given the increased digitalization of society.
The harmonization and “Europeanization” process with regards to copyright has determined a significant change in the national legislation on the subject. In fact, the transposition of the European directives typically involved the adoption of legislative decrees amending the national law on copyright, with very few exceptions in which the implementation of the Union’s indications took place through the adoption of autonomous legislative texts. This is the case for Directive 2000/31/EC, relating to some legal aspects of information society services, in particular electronic commerce, in the internal market (“Directive on electronic commerce”), transposed through Legislative Decree no. 70/2003; and of Directive 2014/26/EU on the collective management of copyright and related rights and on the granting of multi-territorial licenses for rights on musical works for online use in the internal market (“CRM Directive”), transposed through D.lgs. n. 35/2017.
Among the most important European directives in this sector is Directive 2001/29/EC on the harmonization of some aspects of copyright and related rights in the information society (“InfoSoc Directive”), transposed through Legislative Decree no. 68/2003, and Directive 2001/84/EC transposed through Legislative Decree no. 118/2006, which concerns droit de suit, the remuneration due to authors of a work of art or a manuscript calculated on the price of each sale following the first.
More recently, Directive 2019/790/EU (“Copyright Directive”) was adopted which, in reforming the copyright sector within the digital single market, introduced some innovations concerning, among other things, the publishing sector and the liability of internet service providers for online copyright violations. In the Directive’s implementation process, which came to an end with the adoption of Legislative Decree no. 177/2019, some critical issues have emerged concerning the art world and, in particular, the discipline concerning the digital reproduction of cultural heritage images. Art. 14 of the Directive, in fact, states that when the term of protection of a visual art work has expired, any material resulting from the reproduction of that work is not subject to copyright or related rights, unless the material resulting from such reproduction is original in the sense that it is the author’s own intellectual creation. Nevertheless, in faithfully transposing the provisions of the directive, the Italian legislator has preserved and held on to the rules of the Heritage and Landscape Codex on the matter of reproduction which provide for stringent limitations to the possibility of using, for commercial purposes, images of works belonging to the public domain overseen by public institutions (Article 108 of Legislative Decree No. 42/2004). These restrictions, in the opinion of some operators such as Wikimedia Italia and the Capitolo Italiano Creative Commons, may appear to be in contrast with the Directive’s intention to create a European public domain and an obstacle to the digitization process of cultural heritage.
At the same time as the Copyright One Directive, Directive (EU) 2019/789 was also issued, laying down new rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and to retransmissions of television and radio programmes. In transposing it within the Italian legislation, Legislative Decree n. 181/2021 introduces four new articles in the body of the Copyright Law (n 633/1941) aimed at simplifying the discipline of granting copyright licenses and related rights, in order to make the cross-border supply available also to online services, which are ancillary to broadcasting, and to extend, in terms of technological neutrality, the rules already provided for cable retransmission to other forms of retransmission that have emerged as a result of recent technological developments.
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