“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. [...]

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 [...]

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 [...]

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 [...]

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 [...]

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 ( [...]

On July 6, 2011 the Italian Communications Authority (AGCOM) approved the “Draft regulation regarding copyright protection on the electronic communications networks”, currently subject to a 60-day public consultation.

As mentioned in my previous posts, AGCOM’s proposal of new rules for the protection of copyright in Internet and audiovisual media services was heavily criticized because of its ambiguities and the doubt that it could pass muster of constitutionality. Unfortunately, it appears that the draft regulation just approved by AGCOM does not completely solve the problems that have been raised in these months.

It is true that the AGCOM has made an effort to try to clarify and simplify [...]

The saga of copyright protection of industrial design works continues.

Historically, Italian courts had been very reluctant to recognize copyright protection to industrial design works due to a provision (now abrogated) contained in the Copyright Law that clearly excluded copyrightability of creative works whereas the artistic value of the work was not separable from the industrial nature of the product (for example, on this basis, a Supreme Court decision in 1994 had denied copyright protection to the famous chaise longue by master LeCorbusier).

The approach radically changed with the implementation of Directive 71/98/EC in Italy, that introduced art. 2 n. 10) of the Copyright Law, recogniz [...]

The Communications Authority proposal to have a leading role in the protection of copyright on electronic communication networks (as explained in its Resolution 668/10/CONS commented in the previous post) has provoked opposite reactions from copyright owners on one side and supporters of major ISPs on the other side.

The Italian federation for the protection against audiovisual piracy, which represents the interests of copyright owners, welcomes the initiative of the Communication Authority as one that aims at promoting measures to facilitate the legal offer of accessible content to the users and that provides enforcement actions for the rapid removal of content posted in violation of copyri [...]