The copyright is the right recognized by the State, granted to the creator of an original work; in Italy it is regulated by the Law No 633 of April 22, 1941 and its subsequent amendments. One of the last comes from the Law No 128 of May 22, 2004.
Types of work subject to copyright
All the creative works ("intellectual property") are protected by copyright, particularly (but this is a listing without limitation) those which are attributable to:
• literature: literary, dramatic, scientific, educational and religious (including computer programs and databases), whether written or oral
• music: works and musical compositions, with or without words, dramatico-musical and musical variations if they themselves constitute an original work.
- figurative arts: sculptures, paintings, drawings, engravings as well as similar figurative arts, including stenography
architecture: drawings and architectural works, works of industrial design if they present creative and artistic value
theater: choreographic works and pantomimes (with or without a written record)
- cinema: films, silent or sound, photographs
Also the works of so called "creative processing" are protected, such as translations into another language, transformations of one literary or artistic form into another, adaptations, reductions, etc..
Content and duration of copyright
The institute of copyright is relatively young in the evolution of the right, resulting principally from the spread of printing, which enabled easy reproduction of the material conceived by others. It is now a central topic of private law, taking into consideration the spread of new forms of communication that facilitate the reproduction of works.
The subject of copyright is an intangible asset, distinct from the possession (or even from the property) of the simple support (paper, physical, mechanical, magnetic, digital) on which the work is done. The support itself is in fact owned by those who buy it (having paid the price for support and rights), but the copyright remains valid.
The copyright is born at the time of the creation of the work, that our Civil Code identifies cryptically, in a particular expression of the intellectual work.
Contrary to what is often argued, the copyright exists since the creation, and there is no deposit required (for example, at the SIAE), for registration or publication of the work (as opposed to industrial patents and patents on models and drawings of utilities).
It should be emphasized that the rules on copyright regulate the rights to:
- publish
- reproduce
- transcribe
- perform, represent, recite or play in public
• Communicate to the public, or transmit by means of distance spread (telegraph, telephone, radio, television and similar media, including satellite and cable), including public display of the work so that everyone can have an access to it in place and time individually chosen by them (the so-called use on demand)
- distribute
- translate and process
- rent and lend
All the rights listed are independent one from each other, which means that the application of one does not exclude the application of all others, these rights also apply both to the work as a whole and to each of its parts.
The copyright consists of two elements: first, the moral right, according to which what has been created by the author must be attributed to the author himself, so that the others can not boast about it. Secondly, the copyright includes the right to commercial usage. The first is closely related to the person and the author remains the same one except special cases, while the second refers to the possibility of the original author to sell his work for a fee (but he can also give it free of charge) to a purchaser (licensee), who in turn can re-sell it within the limits of the contract of sale and applicable law.
Moral right of the author
It is aimed at protection of the personality of the author and the activity in which his creativity materializes. It includes the following specified matters:
A) The right to unpublished work. It recalls the freedom of expression guaranteed by Article. 21 of the Constitution.
B) The right to authorship:
• The author has the right to claim authorship of the work, that is being publicly recognized as the creator and conversely, that he may not be attributed a work not made by him or different from the one he created. The usurpation of the authorship of the work constitutes plagiarism, against which the real author can defend himself claiming by court the destruction of the plagiarist's work, in addition to damage compensation for damages and to count any change or any action which might influence his honor or reputation.
• The publisher is obliged to reproduce and sell the work with the name of the author or as anonymous or pseudonymous if so provided by contract.
• The authors of a cinematographic work are entitled to have their names mentioned in the projection of the film.
• The right of authorship protects public interests as well, ensuring thus the community from any form of deception or confusion in the attribution of authorship.
• After the death of the author his descendants retain the same rights. It is the moral right that regulates the publication of new works performed by the heirs of the author.
C) The right to the integrity of the work. The author has the right to be judged by the public for the work as he conceived it. The protection of the moral right to integrity of the work concerns only those changes that involve actual harm to the personality of the author.
D) The right to withdraw the work from the market: the so-called right to repentance. The Art. 2582 of the Civil Code provides for the right of the author to withdraw his work from the market if serious moral reasons occur. He has the obligation to pay compensation to those who have purchased the rights to reproduce, distribute, perform, represent or market the work itself.
The commercial rights
As Article 25 states: the rights of commercial use of the work are lifelong and last until the end of the seventieth calendar year after the author's death.
In case of the work of more than one authors, the date refers to the co-author who dies last.
In case of collective works, the duration of rights of use of the work as a whole is seventy years after the first publication.
For anonymous or pseudonymous works seventy years from first publication (in whatever form it is made) should pass, if the author is revealed or disclosed by authorized personnel, the work becomes subject to regular laws.
For parts of a work, volumes and / or periodical works, the duration of the rights starts from the year of publication.
As for the works published by government departments, including academies, public cultural organizations, and non-profit private entities, it should be noted that the copyright lapses after twenty years.
What is possible to use freely?
There are some works that may be, under certain conditions, freely used. Here are some examples (for a complete list see the artt.65-71of the Law 633/41, which regulates the copyright):
- news articles, economic, political and religious, published in magazines or newspapers may be reproduced by other magazines or newspapers if the reproduction is not expressly reserved, and the following information is indicated:
- name of the magazine / newspaper
- date and number of the magazine / newspaper
- author's name (if the article is signed)
- public speeches if indicated:
- the source
- the name of the speaker
- the date and the place where the speech was held
- Summary, quotation, reproduction of songs or pieces of work for the purposes of criticism, discussion or teaching unless they do not present competence for commercial use and following information is mentioned:
- Title of the work
- Author
- Editor
- Possible translator
Termination of commercial right
The commercial right finishes, in most Western jurisdictions, after a certain period from the author's death, so the heirs are generally guaranteed a period of protection of this right which usually covers a time equal to one or two generations . Currently this protection in most Western countries (including Italy) is seventy-five years after the death of the last author of the work. The moral right never finishes, so that the ownership of creative work remains to be referred to the author, at any time.
When the copyright finishes, the work becomes public and freely usable by anyone, even for economic purposes, respecting the moral right of artistic ownership.
Fair Use
In the Italian court system the concept of fair use, that is typical of the copyright system does not exist, but there are the mechanisms of "fair use" or "rights restrictions".
Rights related to the exercise of copyright: rights of the portrait (image)
The portrait of a person can not be displayed, reproduced or commercially distributed without the consent of the person except when reproduction is justified by notoriety or by covered public office, by necessity of justice or police, for scientific, educational or cultural purposes, or when the reproduction is linked to the events or ceremonies held in public or of public interest. The portrait may not be sold or exposed if it affects the honor, reputation or the dignity of the portrayed.
