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It is common to surf the web and find websites that are slightly too similar to one’s own, or to argue with the Web Agency that developed it about the intellectual property of the website. In this article, we will explain what – according to the Italian law – a website is and how to protect yourself against plagiarism, imitation or unfair competition. Let us take it step by step:
The website basically consists of a set of multimedia documents (the pages), which one can interact with, interconnected through links and united by the same domain. Since it is an asset without corporeality, it falls into the category of so-called intangible assets or intangibles.
In other words, it is an intellectual work of a creative nature falling therefore within the scope of copyright protection. The legal qualification of the website nevertheless remains uncertain, as two main orientations exist:
Still, the website may technically be depicted as a string of code and thus also qualify for the software category.
However, in view of the detailed qualification made above, the regulation of the intellectual property of the website is to be sought, as far as Italian law is concerned, within Law 633/1941, i.e. in the Italian Law on the Protection of Copyright and other rights connected to its exercise.
In order to determine who is entitled to the rights granted by copyright protection, it is first necessary to understand who the actual author of the website is.
When it comes to website design, there are essentially 4 primary roles:
None of the above-mentioned figures can be considered as the sole author of the website, being mostly co-authors or mere managers.
The prevailing role, in creative-authorial terms, seems to be above all the so-called ‘web designer’, i.e. the one who sets up the space, associates it with a name, installs the CMS, the plugins and the graphic template by controlling the licences involved, establishes the settings, distributes the contents, organises the graphic layout, and manages its operation and implementation.
It should be noted, however, that the client of the website may have made a contribution, which is relevant and divisible, in terms of instructions for the development of the website (and this contribution must be taken into account) as well as with regard to promotion, diffusion, and profitability.
It can also be said that the custom-made website, although morally belonging to the designer or creator, in terms of patrimonial rights belongs to ‘the person who paid for its creation’, i.e. the commissioner. In this regard, the Italian Supreme Court has clarified that, in the case of a commissioning relationship, the commissioner acquires, as of right, the rights of exploitation of the work (Cass. Civ. Sec. I, 14/06/2016 no. 13171).
However, the contract could provide for exceptions to the general principle (more favourable to the web agency). The commissioner/developer’s right only concerns ‘what has been developed’, since it is clear that what is attributable to the CMS, without creative contribution, cannot be considered as a creation of the web designer and, therefore, the property of the commissioner.
As regards the relationship with third parties, it should be noted that copyright is subject to the principle of automatic protection, meaning that the right exists from the moment the work is created, step by step with its development. This right states that nobody may copy or modify it without the author’s authorisation. In the event of infringement, it will therefore be possible to take action against third parties on the basis of that right.
We would like to point out that the only ruling to openly deal with the subject matter of this article dates back to 1998, when the Italian Court of Bari ruled that a website is a creative work when the methods of access, the type of information and the methods of consultation are original and the result of an intellectual activity of a creative type.
That decision was the outcome of an extensive interpretation of Article 2 of Italian Law 633/1941, which merely provides an illustrative, but not exhaustive, list of works protectable by copyright.
The aforementioned judgment, however, dates back to a time when websites were constructed in a totally different manner than today, and were mostly showcase sites, with little information displayed. Since that judgement, no court has ruled on this issue, nor has legislation changed to give a role to the website within the copyright landscape.
However, we feel it is worth emphasising that the majority of litigation cases concerning the website stem from unfair competition.
The website may also be protected under and for the purposes of unfair competition law (Art. 2598 of the Italian Civil Code). Systematic imitation of particular and original forms proposed within a site, such as layout, content and products advertised or sold, could be likely to cause confusion among consumers, to appropriate the merits and, therefore, the positive reputation of a competitor.
As a matter of fact, Article 102 of Italian Law 633/1941 states: “It is prohibited as an act of unfair competition, the reproduction or imitation over other works of the same kind, of the headers, emblems, friezes, provisions of signs or printing characters and any other particularity of form or colour in the external appearance of the original work, when such reproduction or imitation is likely to create confusion of work or author” (“È vietata come atto di concorrenza sleale, la riproduzione o imitazione sopra altre opere della medesima specie, delle testate, degli emblemi, dei fregi, delle disposizioni di segni o caratteri di stampa e di ogni altra particolarità di forma o di colore nell’aspetto esterno dell’opera dell’ingegno, quando detta riproduzione o imitazione sia atta a creare confusione di opera o di autore”).
Synchronic parasitism is also defined as the exploitation of another person’s work through an overall conduct or a set of acts carried out simultaneously and only once. Copying third-party websites most often constitutes such an offence.
Although the assessment of unfair competition, i.e. the improper crossing of the boundary between what is correct and what is not, is only possible retrospectively, it is worth considering the following.
The registration of a website design as a multiple design (e.g. of graphical interfaces) allows you to precisely determine what you want to protect about the structure of your site. The investment incurred by the registration, as a rule, follows the design of the website, allowing the owner to contest, on the basis of the registration, the slavish copying of his or her own site, requesting an injunction against use.
