Copyright in Italy: scope and mechanisms of protection

The evolution of copyright and intellectual property has redefined how authors protect their creations, granting exclusive rights that range from the protection of literary and artistic works to the regulation of economic and moral rights, within a legal framework that balances protection with freedom of expression.

Essential requirements of Copyright

In the context of Italian Copyright Law, the governing legislation is Law No. 633 of April 22, 1941, supplemented by Title IX of the Italian Civil Code. This legal framework protects works that exhibit a creative nature, covering various domains such as science, literature, music, visual arts, architecture, theater, and cinematography. The core element of protection is creativity, which manifests in two fundamental requirements:novelty and originality.

• Novelty (the work must be objectively different from existing works).
• Originality (the work must reflect the personal intellectual elaboration of the author).

Beyond creativity, another key requirement is the externalization of the work. The idea must take a perceivable and tangible form to be protected; a mere thought or concept does not fall under legal protection. For instance, the concept of a book cannot be protected if only expressed in vague terms; it must be developed into a structured and sufficiently defined form to benefit from copyright protection.

This perspective allows a single idea to inspire multiple artistic interpretations, all of which may be eligible for protection. Different artists may depict the same subject, but each representation, by virtue of its creative uniqueness, is deserving of legal protection.

Categories of protected works

Article 2 of Law No. 633/1941 provides a non-exhaustive list of protected works, as confirmed by various judicial rulings (cf. Cass. civ., Sez. I, 19.07.1990, No. 7397; C.d.S., Sez. VI, 20.07.2022, No. 6234; Corte dei Conti Liguria, Sez. giurisdiz., Sent. 26/01/2024, No. 2). These include:

• Literary, dramatic, scientific, educational, and religious works, whether written or oral;
• Musical compositions, with or without lyrics, and dramatic-musical works;
• Visual arts, including sculptures, paintings, drawings, and engravings;
• Architectural projects and their implementations;
• Cinematographic and audiovisual works, whether silent or with sound.

With technological advancements, the law has expanded to include photographic works, software, databases, and industrial design. Creative adaptations, such as translations and modifications of original works, also fall within protection, provided they introduce elements of novelty and originality.

It is important to note that copyright law does not apply to official texts of the State and public administrations, ensuring free and unrestricted access to such documents.

Rights granted to the author

Under Italian law, copyright protection arises at the moment of creation and encompasses both economic rights and moral rights.

Economic Rights provide the author with the ability to commercially exploit their work and include:

• Right of reproduction;
• Right of performance, representation, recital, or public reading;
• Right of broadcasting or public communication;
• Right of distribution;
• Right of transcription;
• Right of adaptation and modification;
• Right of rental and lending;
• Resale right.

Unlike moral rights, economic rights are transferable, waivable, and time-limited. They remain valid for the author’s lifetime and for 70 years after their death. In the case of multiple authors, the term runs from the death of the last surviving author. After this period, the work enters the public domain and can be freely used.

Moral Rights, on the other hand, protect the author’s personality and integrity. These include:

• Right to authorship;
• Right to maintain the integrity of the work;
• Right of disclosure;
• Right to publish or withdraw the work from the market.

Unlike economic rights, moral rights are inalienable, perpetual, and non-renounceable, meaning they cannot be transferred or assigned to third parties and remain in force even when economic rights have been sold or transferred.

Does Italian Law recognize the concept of 'Fair Use'?

The ‘fair use’ doctrine originates from common law systems, particularly in the United States, where it allows limited use of protected works without the rights holder’s consent under certain conditions. In the U.S., fair use is assessed based on four key factors: the purpose of the use, the nature of the copyrighted work, the amount used in relation to the whole work and the economic impact on the value of the original work. This doctrine aims to balance copyright protection with freedom of expression.

In Italy, fair use is not formally regulated. However, the Italian legal system provides for exceptions and limitations to economic rights, allowing the lawful use of protected works without the author’s consent. These exceptions, mainly regulated by Articles 65-71 decies of Law No. 633/1941, apply to specific circumstances, such as:

• Public information;
• Free discussion of ideas;
• Promotion of culture and education.

Only recently, in Tribunal of Rome Ruling No. 6504/2021, did Italian case law explicitly reference the ‘fair use’ doctrine. In this case, regarding the film Rango, the court adopted a flexible approach in balancing copyright and freedom of expression (Tribunale Roma, Sez. spec. in materia di imprese, 16/04/2021, n. 6504). The court ruled that the film’s reference to the Man with No Name character from Sergio Leone’s trilogy, through the character Spirit of the West, constituted a mere citation, rather than copyright infringement (for further details, see: “Cinema and plagiarism: what are the limits of copyright“).

Key considerations in this ruling included:

• The marginal role of ‘Spirit of the West’, as the character appears for only one minute and thirty seconds in a film of over one hour;
• The absence of commercial exploitation in competition with the original work.

Although fair use is not formally recognized in Italian law, other judicial decisions have drawn inspiration from it. For instance, in Cass. civ., Sez. I, Ord., 30/12/2022, No. 38165, the Italian Supreme Court held that “parody must respect a fair balance between the rights of the original rights holder and the freedom of expression of the parody’s author. The use of protected content is justified only if it does not harm the original work’s economic exploitation”.

This demonstrates that, although Italy does not have a clearly defined fair use doctrine, principles from foreign legal systems influence Italian case law, leading to a more flexible approach to the use of protected works (for further details: “Copyright infringement and exceptions: a brief guide for authors”).