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What is copyright and what it protects
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What is copyright and what is it for?
What is it?
"Copyright" refers to the rights that an author has over an intellectual work of creative nature.
In Italy, the term "copyright" specifically refers to the law called “Legge sul diritto d’Autore”, which provides for the protection of intellectual works of a creative and original nature that belong to the following fields:
- literature
- music
- figurative arts
- architecture
- theater and cinematography
whatever its mode or form of expression.
What is it for?
Copyright gives the author of a creative work the rights of economic and moral exploitation, which we will explore in detail below.
We can advise you on the most effective form of protection for your creative work.
We assist you in the procedures for registering your work in Italy with the Società Italiana Autori ed Editori (SIAE).
We support you to ensure that your copyrights are respected.
Benefit from the advantages guaranteed by the authorship of your work.
What copyright protects
Categories of protected works
Referring to Art. 2 of the Copyright Law, the following types of creative works are protectable:
- literary, dramatic, scientific, educational, and religious works, whether in written or oral form
- musical works and compositions, with or without words, dramatic-musical works and musical variations constituting in themselves original works;
- the choreographic and pantomimic works, of which the outline is fixed in writing or in any other form;
- the works of sculpture, painting, drawing art, engraving and similar figurative arts, including set design;
- the drawings and works of architecture;
- the works of film, silent or sound art;
- photographic works and those expressed by a process similar to photography;
- programs for processing, in any form expressed as long as they are original as a result of intellectual creation of the author;
- databases understood as collections of works, data or other elements;
- works of industrial design that present in themselves creative character and artistic value.
Who owns the copyright
Who is the author of the work?
This may seem like an obvious clarification, but it is worth pointing out that the owner of the copyright is the one who created the work. The latter also remains considered as such until proven otherwise.
According to Art. 8 LA:
"He is deemed to be the author of the work, unless proven otherwise, whoever is referred to therein as such in the forms of use, that is, is announced as such in the recitation, performance, representation or broadcasting of the work itself. The pseudonym, stage name, acronym or conventional sign, which are known to be equivalent to the real name, shall count as a name."
In the case of a work created by two or more persons, copyright will accrue equally to all authors involved in the creation,, unless the parties agree otherwise.
However, there are some exceptional cases where copyright is held by third parties.
Let us list such cases below.
Copyright held by the employer
Assume an IT company where the employer requests the development of a new program to process from an employee.
In this case, the employer will own all rights of economic exploitation over the program developed by the employee in the performance of his duties, except for the latter's moral right to be recognized as the author of the same.
In general, therefore, if the work is created in the course and performance of an employment contract, the exclusive right to the work itself rests with the employer.
Copyright held by the principal
The considerations made above also apply in the case of commissioning to the author of a work.
Consider the case where some professional shots are commissioned from a photographer to be used for commercial purposes.Unless otherwise agreed and upon payment to the photographer of fair consideration, the copyright holder will be the commissioner of that project.
Copyright held by others
Finally, there is the case of public administrations, private nonprofit entities, academies and other public cultural entities to whom all copyright in works created or commissioned and published under their name and for their own account and expense shall vest.
Copyright arises when the work is created.
Therefore, it is sufficient for authors to prove that they are the creators of the work and that they created it before others, without the obligation to resort to any kind of filing as it happens for trademarks, designs and patents.
We reproduce below an excerpt from Art. 8 of the Copyright Law according to which: "He shall be deemed the author of the work, unless proven otherwise, […]”.
It is in any case recommended that the author of a work deposits it with an entity that certifies the date of creation, a role assumed by the SIAE as far as the Italian territory is concerned.
Warning: before proceeding with the application for deposit, it is a good idea to make sure through the opinion of an IP expert that the work falls within the categories of protectable works; this is because the SIAE does not carry out checks and verifications on the type and content of the right that one intends to protect.
Analysis of rights
Patrimonial rights and moral rights
The Copyright Law provides for the following two types of rights in the hands of the author:
- Rights of economic use (patrimonial rights)
- Moral rights
Economic rights
The author is granted the economic rights of the work exclusively, in the form and manner provided by law. No third party may exercise the same rights without prior consent from the author, usually granted through the payment of economic compensation.
Specifically, the economic exploitation rights reserved to the author allow the author to:
- publish and use the work in any form and manner
- reproduce the work
- transcribe the work
- perform it in public the work
- communicate and broadcast the work
- commercialize the work
- translate, process or modify the work
- rent or lend the work
In essence, the author has the exclusive right to derive any kind of economic benefit from the copyrighted work. Economic rights can be transferred to third parties.
Moral rights
Art. 20 of the Copyright Law states the following:
"the author retains the right to claim authorship of the work and to object to any deformation, mutilation or other modification, and to any act to the detriment of the work itself, which may be detrimental to his honor or reputation."
Moral rights in a creative work are always exercisable, non-transferable and unwaivable by the author.
Likewise, moral rights to a work can be enforced by the author's heirs after the author's death, with no time limit.
Let's delve into some practical aspects
Cases of free uses
There are some cases in which the use of copyrighted works is free, without requiring any form of consent from the author. The following are some examples:
- abstracts;
- quotations;
- reproductions of parts of works if made for use in criticism or discussion, or for teaching purposes.
In all these cases, the use of works protected by the copyright of others is permitted because no profit or commercial purposes are being pursued, but only educational or critical objectives. This condition must be met at all times, under penalty of infringing the copyrights of others.
A further requirement of the law in such cases is that the title of the work and the author's name must always be mentioned.
Copyright infringement
Patent an idea? Yes but careful!
Copyright infringement can be prosecutable in both civil and criminal cases with the obvious purpose of protecting the rights holder. Infringing copyright is therefore not a matter to be taken lightly.
Paying attention to the terms of use of works and content that you intend to use is of crucial importance in order not to infringe any copyright.
Are your copyrights being violated?
Here are some of the actions you might take
Injunction
If you fear an infringement of your right of economic use of the work or if you intend to prevent the continuation or repetition of an infringement that has already occurred, the Judge may order an injunction against the infringer and set a sum as a penalty for each infringement or delay in enforcing the injunction.
Compensatory protection
Infringement of your copyrights allows you to claim compensation for damages suffered as a result of the conduct of others. The advice of an intellectual property professional is essential in order to implement the best legal action to defend your rights.
FAQ
Let’s clear up some misunderstandings
Do you have any specific questions?
Contact us now. Our Team will give you all the information you are looking for!
In Italy, the terms copyright and "diritto d'autore" are commonly used synonymously and are used indiscriminately to refer to the same concept.
In particular, however, the term "copyright" derives from the Anglo-Saxon law that gives the author the literal right to copy a work.
In Italy, under Art. 25 of the Copyright Law:
"The right of economic use of the work lasts for the whole life of the author and until seventy years after his death.".
In light of the above, once 70 years have passed since the death of the author, the exclusive property rights related to the economic exploitation of the work (reproduction, distribution, use, etc.) expire permanently.
What happens then when the copyright expires?
When the terms established by law expire, works fall into "public domain," meaning they can be freely used by anyone as long as the honor of the author is not harmed.
The principle of exhaustion provides that once the work has been placed on the market by the author, the author cannot object to its subsequent circulation (e.g., sale or gift to a third party), subject to certain exceptions.
While resale of the legitimately acquired work is always permitted without the need for authorization from the author, it will still not be possible to copy or duplicate it.
The Berne Convention of 1886 stipulates that each signatory country must also recognize as protected by copyright the work created by nationals of other convention states.
The provisions of Copyright Law therefore apply to all works by Italian authors, wherever first published, and to works by foreign authors, domiciled in Italy.
Patrimonial rights (or economic rights) in a work can be assigned and transferred to third parties.
Moral rights, on the other hand, are non-transferrable, unwaivable and therefore always remain with the author of the work.
Contact us
Write us and we will contact you as soon as possible by a professional of our firm that will be ready to advise you on the best way to protect your intellectual property.
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