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Copyright

Copyright is protected internationally by the Berne Convention. At present about a hundred countries are signatory to the Convention and the works belonging to one of the signatory countries enjoy the rights in the other countries which the national laws accord to their own citizens. One of the most important features of the Convention is that the Author is exempt from all formalities (filing or registration) since protection is automatic from the moment the work is created. There are other international Conventions which protect Authors' interests, such as the Universal Convention of Geneva and the Rome Convention which protects performing artists.

Content

The works protected by Copyright are: "works of the intellect of a creative character which belong to literature, music, the figurative arts, architecture, theatre and cinema, whatever the method or form of expression"; literary works also include "computer programmes". In order to be protected by copyright, a work must be a "work of the intellect". It must therefore be the result of an intellectual activity of a "creative character". Creativity is an obligatory condition since this characteristic is the only one which allows us to distinguish one work from the others. No particularly exceptional literary or artistic content is required of the work protected by copyright, but it must be original enough compared with what already exists, taking into account that Copyright does not protect the idea in itself, but how that idea is expressed.

Protected works

In art. 2 of the Copyright Law, the works that can be protected are listed in detail and are thus identified:

  1. literary, dramatic, scientific, didactic and religious works, in both written and oral form;
  2. musical works and compositions, with or without words, dramatic-musical works and musical variations which in themselves constitute an original work;
  3. choreographic works and pantomimes, where the outline is fixed in writing or in other form;
  4. works of sculpture, painting, art, drawing, etching and similar figurative arts, including set design, also if applied to industry, as long as their artistic value can be separated from the industrial character of the product with which they are associated;
  5. designs and works of architecture;
  6. works of the cinema, both silent and sound, provided that they are not a simple documentation protected by the Copyright Law;
  7. photographic works and those expressed with a process analogous to that of photography, provided that they are not a simple photograph protected by the Copyright Law;
  8. computer programmes (software), expressed in any form provided they are original and the result of the author's intellectual creation. The ideas and principles at the base of any element of a programmed are excluded from the protection accorded by the law, including those at the base of its interfaces. The term programmed also includes the preparatory material for designing the programmed itself.
  9. databases which due to the choice or disposition of the material constitute an intellectual creation by the author, understood as a collection of independent works, data or other elements individually accessible by electronic means or in another way. The protection of databases does not extend to their content and leaves the rights existing on said content unprejudiced.

Also protected are:

  1. collected works, consisting of the works or parts of works put together, provided they have a character of autonomous creation (such as for example dictionaries, magazines, newspapers, where the copyright of individual parts which make up these works remains valid);
  2. translations into another language of literary or artistic works, transformations from one literary or artistic form into another, modifications and additions that represent a substantive reworking of the original work, adaptations, abridgements, compendiums, variations that do not constitute the original work.

Rights of the authors

The moral and patrimonial right connected with the works listed above is recognized to the Authors of such works. Moral right is an exclusive and inalienable right, while patrimonial right can be ceded to third parties. Copyright is acquired by the Author from the beginning, due to the fact that he has created a work; to acquire the copyright it is not necessary to take any particular action in order to enjoy the right (filing and registration, for example, remain important to certify a certain date and an identified content). With specific reference to the patrimonial content, Copyright has a limited duration which starts from the moment of creation of the work and lasts to the end of 70 years after the death of the Author. When the Author is unknown, for example because he has used an unidentifiable pseudonym, the duration is 70 years starting from the first publication. For calculating the expiry of the patrimonial right of the author of software, the 70 years start from 1 January of the year after the author's death. The patrimonial rights over cinema and photographic works last 70 years after the death of the last person surviving of: artistic director, authors of the screenplay (including the author of the dialogues and the author of the music specifically created for the work). There are also other works which enjoy different durations.

"Ideas and principles at the base of any element of a programmed, including those at the base of its interfaces" remain excluded from the protection for "computer programmes". This exclusion respects the structure of Copyright since it does not protect ideas, while it is possible to protect the way in which, starting from ideas or principles, a result, that is, a programmed, is achieved. The preparatory material for designing the programmed is also included in the protection accorded to computer programmes. Since 1994 it has been possible to register the published software at the SIAE (Società Italiana Autori e Editori - Italian Society of Authors and Editors), since the SIAE keeps a public register for software. Registration of the software is voluntary since, like all other works protected by Copyright, the right arises from the creation and not the registration of the work at the SIAE. For software too, this register has only a probatory function and does not give the registered work, if it does not meet the requirements, any protection under the Copyright law. For this purpose, the Regulation governing the execution of the dispositions concerning the SIAE countersign (n. 31/2009) is now in force. Art. 181 bis, introduced into the Copyright Law by Law n. 248/2000 regarding electronic programmes, governs the fixing of the SIAE countersign on all supports containing computer or multimedia programmes and on all supports containing sounds, voices, moving images, which carry works or parts of works among those indicated in art. 1, clause 1 (Copyright Law), intended to be put on sale or assigned in use for profit-making purposes. The same article, however, lays down some exceptions: in clause 3 it says that the stamps do not need to be attached when the computer programmes are used exclusively by an electronic processor, provided that the programmes do not contain sounds, voices or sequences of moving images such as to constitute entire phonographic, cinema or audio-visual works, not made expressly for the computer programmed, or their passages or parts in excess of 50% of the entire work from which they are taken, which give rise to competition to the economic use of said works. In this hypothesis, the legitimacy of the goods is proved by appropriate declarations of identity which the producers and importers shall pre-emptively make to SIAE.

Regulation 31/2009 completes the norms of art. 181 bis, specifying that the countersign:

  • has to contain the title of the work for which it has been requested, the name of the author, the producer or the owner of the copyright, a progressive number, and also the destination of the support for sale, rent or any other form of distribution;
  • is normally applied on the packaging of the support so as to be visible; it must have characteristics such that it cannot be removed without damage or transferred onto another support. In the case of rent, the countersign can be affixed on the supports themselves;
  • is normally issued by SIAE within ten days, but this can also be thirty days in particular cases, from when the request is received from the party concerned. The request must contain all the data relating to the work, the authors, those having original rights, the owners of the connected rights and must be accompanied by a declaration that the applicant has acquired the right of exploitation.

Moreover, Regulation 31/2009 specifies what supports are exempt from applying the SIAE countersign because they contain computer programmes with an operating system:

  • downloaded directly from the Internet provided they are not subsequently duplicated or moved to an electronic processor other than that of the user if the programmes are not registered for profit-making purposes;
  • distributed free provided they have the consent of the holder of the rights;
  • distributed as accessories under licence of use contracts based on agreements with SIAE;
  • having the character of an operating system, application or distribution of IT services (servers) to be pre-installed on an electronic processor and distributed to the final user together with the same;
  • used exclusively in the functioning of peripheral systems, interfaces, system updating, or necessary to solve conflicts between programmes for a processor and an electronic processor;
  • inserted into telecommunications apparatus or systems, modems, terminals, GPRS systems, mobile phones, distributed with them and needed to make them function;
  • included in industrial apparatus, governing transport systems and mobility, for programming the functioning of household appliances, if they are made with them and needed to make them function;
  • included in apparatus for biological and/or chemical analyses, for the management of apparatus of a medical or sanitary type, for measurements and analyses if distributed with said products and needed to make them function;
  • intended for the aid and support of the disabled.
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