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Italy: the take-down notice must contain the specific YouTube URLs

spedicato“A take-down notice which generically refers to the titles of the infringing videos, without specifically indicating their URLs, is not sufficient to determine the “actual knowledge” of the hosting provider.”

On May 5, 2014, the Distric Court of Turin has given a preliminary ruling on the proper content of the take-down notices in copyright infringement disputes. Although the decision is not completely surprising (see, in this regard, this ruling of the Distric Court of Rome, 11 July 2011), it sets the standard for copyright holders on how to draft a take-down notice to be notified to a ISP.

Background

The action has been brought by Delta TV, an Italian company which produces and d [...]

Italy: Gay Pride photo doesn’t infringe portrait rights

spedicato “Those who take a train have to accept the risk of being identified abstractly in the crowd of passengers, as this is simply part of the ‘risks of the life’.”

The Italian Supreme Court rules that, according to Article 97 of the Italian Copyright Act, the public displaying of the portrait of a person is not an infringement of his rights when it is associated with facts or events, such as the Gay Pride parade, which are of public interest and which take place in public.

On October 24, 2013, the Italian Supreme Court published a decision concerning the public displaying of the portrait of a person without his consent in a context (i.e. the Gay Pride parade) where the honour and dign [...]

Open Access to Scientific Articles: Comparing Italian with German law

Valentina-MosconBy Valentina Moscon, Scholarship holder at the Max Planck Institute & University of Trento

The Italian Parliament recently approved a new law concerning the valorization of culture (Law of October 7, 2013, n. 112, G.U. n. 236, 8.10.2013). The law includes, in section 4, a regulation for Open Access (OA) to scientific publications.

With this new law, the Italian parliament aims to align Italy’s national law with the European Open Access policies that are clearly expressed in the EU Commission’s Recommendation of 17 July 2012 on “Access to and Preservation of Scientific Information” and the Communication “Towards better access to scientific information: Boosting the benefits of publ [...]

Some remarks on AG Sharpston’s opinion in the Nintendo case (C‑355/12).

spedicato“If my reasoning is correct, the AG’s conclusion on this specific point (no legal protection must be granted to TPMs which are not used to prevent or inhibit acts of infringement) is much more innovative than the AG herself seems to acknowledge.”

On 19 September, Eleanor Sharpston, Advocate General of the Court of Justice of the European Union, delivered her opinion in the Nintendo case (Case C‑355/12), in which some interesting questions related to the legal protection of technological protection measures (TPMs) have been referred for a preliminary ruling by the District Court of Milan.

As this is the first time that the CJEU deals specifically with the legal framework designed by [...]

A Story to be Told. The fine line between plagiarism and story-(re)telling

“What seems to lack in the decision of the Court, at the end of the day, is a clear test of what constitutes a structural element in the ‘embryonic stage’.

Last 19 October 2012, the Italian Supreme Court published a decision on a case of plagiarism related to a literary work which told the true story of a II World War hero. The facts, in brief: the plaintiff wrote a book about the story of an officer of the Italian navy and a pioneer of scuba diving, Luigi Ferraro, based on a number of talks and interviews that the two had had. The book was mostly biographic, but it also mixed the story of Luigi Ferraro with the war experiences of the author, who was in the Italian army in the same period. [...]

Italy: copyright protection only for ‘high level’ industrial design

The “Arco” lamp is protected by copyright. But Italy is still struggling with the moratorium of the copyright protection of industrial design.

With a 56-pages decision of the District Court of Milan published on 12 September 2012 and made available last week, the “Arco” lamp case, started as far back as 2006, has finally come to an end. In the meanwhile, a few amendments to the relevant norms and a judgment of the European Court of Justice (case C‑168/09) intervened. But let’s start this story from the beginning.

In November 2006 FLOS SpA, the Italian company producing the famous Arco floor lamp designed in 1962 by Achille and Pier Giacomo Castiglioni, brought proceedings against [...]

Did anybody notice it? Active and passive hosting in Italian case law on ISP liability

In recent years, Italian courts have struggled to create a new figure, the ‘active hosting provider,’ whereby providers that do not offer any content themselves, can nonetheless be held liable with regard to their (commercial) activities in relation to infringing content that was uploaded by users.

On the one hand, it could be argued that this approach favors a more balanced interpretation of the e-Commerce directive (at least that is the intention of the courts), but on the other hand, the approach appears to be a misinterpretation of the EU legislative framework, of the technology behind the services offered by the hosting providers and ultimately of the role played by copyright law in [...]

Music broadcasting at the dentist’s and in hotel rooms. CJEU clarifies “communication to the public”

On 15 March 2012 the CJEU has ruled two cases where it had been asked to decide whether producers of phonograms (or the collecting society on their behalf) are entitled to obtain equitable remuneration when a user allows its clients to hear the phonogram by way of background music in a place subject to his control.

The first case, referred by the Court of Appeal of Turin (Italy), involved Società Consortile Fonografici (SCF), the Italian society that collects and distributes to artists and phonogram producers the royalties for the use in public of recorded music, and Mr. Marco Del Corso, a dentist who used to broadcast background music from the radio in the waiting room of his private denta [...]

Hosting providers: passive vs. active

We are experiencing a new trend by Italian first instance courts in addressing the issue of liability of hosting providers for contents posted by users in copyright infringement cases. The new approach is likely to impose providers of video sharing platforms (such as YouTube, Dailymotion and others) dramatic changes in their model of business, with relevant consequences for the whole information society.

In recent judgments, courts have in fact elaborated the theory that the provision contained in art. 14 of the E-Commerce Directive that exempts hosting providers from liability in case of unlawful activities carried out by the users of their service, applies only to “passive” hosting provide [...]

No more dance for Baila!

The Tribunal of Rome has rejected the appeal brought by Reti Televisive Italiane (RTI, Mediaset Group) and Endemol, respectively the broadcaster and the producer of the Mediaset TV program “Baila!”, against the first instance decision in the urgent proceeding for provisional measures of the same court, holding that the program was an unauthorized copy of the popular – and previous in time – TV program “Ballando con le Stelle” (Translation: “Dancing with the Stars” ) of the national TV broadcaster, RAI.

The case started the beginning of September. Media reported that in the claim for provisional measures against RTI and Endemol, the popular show presenter of Ballando con le Stelle ( [...]

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