COPYRIGHT
1. Birth of copyright.
Berne Convention for the Protection of Literary and Artistic Works (1886), Law No 22 April 1941 633 (protection of copyright and other rights related to the exercise thereof); Articles. 2575-2583 cc; Universal Copyright Convention (1952), WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty (1996), dir. No 91/250 of May 4, 1991, dir. No 92/100 of 19 November 1992, dir. No 93/98 of 29 October 1993, dir. No 96/9/EC, dir. No 2004/48/EC of 29 April 2004.
M. Rose, Authors and Owners. The Invention of Copyright, Harvard University Press, 1993; JMB Rochelle, Challenges to the Creator Doctrine, Kluwer Law, 1994; C. Hesse, The Rise of Intellectual Property, 700 BC to AD 2000, Daedalus, (2002); LC Ubertazzi, Copyright, in Dig. disc. priv., sec. Civ., Turin 1989; A. Anchisi Passerin The Entreves Copyright in comparative law, including, M. Ammerman, Copyright. Substantive law, there.
The birth of copyright is recent, when compared with other schools of law. The idea that a person can claim rights over their work, in fact, is the result of an achievement that belongs to the Enlightenment.
This delay could be justified by recalling the hatred, manifested in all the monotheistic religions, to this principle. Thus, Confucius, in Analects says: "I do not create and transmit. I trust in old and I love them. " Otherwise, the Šarī'a, Islamic law, while punishing the appropriation of a reputation as a master of law does not recognize the paternity of the ideas expressed by the master himself. A solution that is not surprising if one considers that, in the Islamic world, the press is penetrated with difficulty, within a culture that has always preferred the oral tradition to written transmission.
Similarly, the Judeo-Christian thought did not recognize any rights to the creators of ideas. In the Gospel of Matthew says, "Freely you received, freely give" (10:8); culture, science and ideas, then, are the work of God, who forwarded it to men. This concept is then penetrated in medieval theology: 'Scientia donum Dei est, unde non potest sell', 'science is a gift from God, so you can not sell it. " Indeed, a gain of something that belongs to God is considered sin (simon): therefore, all members of the intellectual professions - teachers, doctors, and so on - can not get any compensation for their services, but, at most, gifts as a token of gratitude for the wisdom they have imparted.
At this historic moment, therefore, the protection is not given to the idea (content work, CDs mysticum corpus), but solely for the support which the idea is contained in (the container, cd mechanicum corpus). In substantive terms, we might say that you can then steal a book, but do not plagiarize the contents.
entirely unknown, then, was the distinction between moral law and property law, or between the ball extrapatrimoniale mainly related to authorship and exploitation of the work itself.
The situation outlined, however, was to change in 1450 with the invention of printing by Gutenberg: autoplay and serial form (and not by scribes) created the first opportunity to gain on the sale of the works, but at the same time, also developed the various conflicting interests of forgers and plagiarists. In this period, and then, facing the two major demands of copyright: to recognize the rights of equity and morality to the authors defend the authors from unlawful uses of their creations.
would, however, a mistake to believe that the birth of modern copyright law has followed a process so simple.
On the one hand, in fact, remained opposing views: one of the first writings on the new medium, printers Luther warned: "I have received, freely I have given freely, I do not want anything in return."
Dall’altro, le prime aperture (i cc.dd. privilegi) erano intese come una grazia ottenuta dal sovrano, revocabile in qualsiasi momento. Come si può semplicemente evincere, quindi, siamo ancora molto lontani dal riconoscimento di un vero e proprio diritto sulle creazioni.
L’ammissione dei privilegi da parte del potere politico, naturalmente, assicurava anche un controllo preventivo sulle opere pubblicate. Esemplare, in tal senso, è l’esperienza francese, nella quale fu assegnato il diritto di monopolio sulle stampe, ma i regnanti si arrogarono il potere di censurare le opere poco gradite, il cui controllo era assegnato ad una commissione che operò fino alla rivoluzione del 1789.
Ma cos’erano questi privilegi? It was a right granted by the monarch, who entrusted to a monopoly on the subject printed works: within that territory, so no one else could print literary works.
As far as we know, is the first example of 1469, when it was attributed to Johann Speyer exclusive rights for the Republic of Venice. This practice soon spread beyond the borders of country: it is the 1504 creation of the title of King's Printer and destination to a single printer (the Stationers' Company) monopoly publishing in England a few years later the creation of a similar monopoly in France.
It seems interesting to note that the right was not recognized the creator of the work. These sell his manuscript, and thereafter, the publisher publishes it. It was only the publisher, therefore, to obtain money from the printing of books, including those written by authors disappeared.
This system, however, did not live long.
First of all, during this time, develop new theories that recognize the right of authors in their works.
A milestone in this process, is represented by the publication in 1690, the Second Treatise of Government by John Locke. In this paper, for the first time was formulated the so-called theory of labor and private property, that every individual has a right to property the fruits of their labor and those rights do not constitute a license from the state. A thesis that, in law, soon to be filmed by one of the most famous lawyers of the time, William Blackstone, in his Commentaries on the Laws of England.
Second, even if we are in a period of time after the birth of the bourgeoisie led, among other radical social changes, including the dissemination of culture in the exponential increase book sales.
1.1. The laws on copyright.
social changes, as well as the Lockean theory, did not leave indifferent judges and legislators.
The expansion of the publishing market led even the first forms of "piracy", which attempted to self-absolved, arguing that their work was the only objective in opposing the monopolistic privileges and to seek public interest.
paradigmatic of the situation which has led the English experience. The House of Commons in 1695, took away the monopoly of the Stationers' Company. This led to the appearance on the market of other publishers (it would be simplistic to consider only counterfeiters) and forced the Queen, in 1710, to adopt the Statute of Ann, which stated the right of authors to allow the press in advance of their work, in to encourage - say the law - men of culture writing "useful books".
recognition of authors' rights - understood as a priority over those of the editors - is an important recognition in the U.S. Constitution of 1787, which, under section 8 of Article. 1, states: "The Congress shall have Power [...] to promote the progress of science and useful arts, by securing for limited periods of time to authors and inventors the exclusive right to their respective writings and discoveries."
also the first U.S. law on copyright of 1790 - the subject matter regulated exclusively by federal law and not by individual states - recognize the right of the author for 14 years (later extended to 28 in 1831) following the date of publication of the work.
The wind was blowing in the Anglo-Saxon countries did not leave the continental immune systems. The most important example, which will also influence other European countries, is represented by French post-revolutionary in 1791 and 1793, which, as we have said, put an end to the privilege system.
The birth of modern copyright law, with the enactment of laws which we have referred, also marked a separation, which in part still there today, including common law countries (the United States and England in particular) and civil law countries (France and Germany, in which strand lies also in Italy).
The model adopted in the Anglo-Saxon countries is marked by a sharp pragmatism, where, on the contrary, the Franco-German model is based applications to natural law.
Wanting to try to outline the main differences between the model of common law and the Franco-Germanic, one can observe that: in the first, the copyright is recognized only if certain formalities are fulfilled, while in continental systems of rights 'author arise with the sole creation of the work, the moral right of copyright is not protected by copyright, while the copyright protection of the continental countries this aspect, and finally, the restrictions (in particular, fair use) have a large space in the common law, while in continental countries, this use has degraded to the rank of mere exceptions.
A closer look, however, even within the continental legal systems can be further dichotomy.
The German system, in fact, has adopted the monist theory of copyright, unlike the French system, however, took into account the pluralistic theory.
According to the first theory, there is no copyright protection of property rights is inseparable from moral rights. This position, as was mentioned, was taken by German law on copyright.
According to the second, the economic interests of the author are protected da diritti patrimoniali, per loro natura alienabili a terzi ed hanno una durata limitata nel tempo; i diritti morali, invece, sono intrasmissibili ed hanno durata illimitata. Questa posizione è stata accolta dalla legge francese sul diritto d’autore dell’11 marzo 1957, così come dalla legge italiana.
1.2. La regolamentazione internazionale del diritto d’autore.
Deve però osservarsi che, attualmente, la situazione è radicalmente mutata e le differenze evidenziate tra i singoli modelli sono attualmente molto più sfumate rispetto al passato. L’esigenza di far circolare le opere al di fuori dell’ambito nazionale ha sollevato, prima che in altri settori del diritto, l’esigenza dell’uniformazione legal rules.
fundamental importance in the process of approximation of individual national laws, had the Berne Convention for the Protection of Literary and Artistic Works of 1886 (amended several times, most recently in 1979 with the Paris Convention) and the Universal Convention Copyright, 1952, signed in Geneva.
further push in this direction was then imprinted from birth - wanted by the Berne Convention itself - the World Intellectual Property Organization (WIPO or, in the Anglo-Saxon tradition, WIPO: World Intellectual Property Organization), an international organization which, as main objective is to promote the protection of intellectual property throughout the world through cooperation among states. From this organization came two important treaties of 1996 (amended since then in part): the first copyright law, the other on the Performances and Phonograms Treaty.
Finally, a further push is coming - albeit limited to countries outside the European Union - with some EU directives, which have attempted to provide for a uniform legal framework. Among the most important are: dir. No 91/250 of 4 May 1991 on the legal protection of computer programs, dir. No 92/100 of 19 November 1992 concernente il diritto di noleggio, il diritto di prestito e taluni diritti connessi al diritto d’autore in materia di proprietà intellettuale; dir. n. 93/98 del 29 ottobre 1993 concernente l’armonizzazione della durata di protezione del diritto d’autore e di alcuni diritti connessi; dir. n. 96/9/CE dell’11 marzo 1996 relativa alla tutela giuridica delle banche di dati; dir. n. 2004/48/CE del 29 aprile 2004 sul rispetto dei diritti di proprietà intellettuale.
Probabilmente, però, il passaggio più importante verso l’avvicinamento dei modelli giuridici si è avuto con la direttiva n. 2001/29/CE del 22 maggio 2001 sull’armonizzazione di taluni aspetti del diritto d’autore e dei related rights in the information society. This directive, in fact, has implemented the WIPO Treaties (the European Union having joined the same), as well as, previously, had made the United States - with the Digital Millennium Copyright Act of 1998 - and other countries outside 'European Union.
is clear, finally, that in the field of copyright, has created a unique phenomenon - not yet ended - the convergence of different national laws, international conventions standardized hours, now down in Community legislation.
2. Requirements for the Protection of works.
P. Greek - P. Vercellone, I diritti sulle opere dell’ingegno, in Tratt. dir. civ. di Vassalli, Torino, 1974; E. Santoro, Note introduttive sul fondamento costituzionale della protezione del diritto di autore, in Dir. autore, 1975; M. Fabiani, Il diritto d’autore, in Tratt. dir. priv. dir. da Rescigno, Torino, 1983; M. Ammendola, Diritto d’autore. Diritto materiale, in Dig. disc. priv., sez. civ., Torino, 1989; L.C. Ubertazzi, Commentario al Diritto della concorrenza, 3ª ed., Padova, 2005; V. M. De Sanctis, I soggetti del diritto d’autore, 2ª ed., Milano, 2005; L. Chimienti, Lineamenti del nuovo diritto d’autore, 7ª ed., Milano, 2006.
Legge 22 aprile 1941 n. 633; artt. 2575-2583 cc
addition to supranational law, copyright is governed, of course, by the rule of law (although the latter has undergone quite a few changes because of the actions of supranational legislation itself).
The main sources of copyright are the Civil Code (Articles 2575-2583) and the Law April 22, 1941, No 633, entitled "Protection of copyright and other rights related to its practice" (henceforth lda).
The Constitution, however, contains no reference to copyright, although we believe that it is usual to find protection in some provisions and, specifically: art. 2, the protection of human personality; art. 4, the material or spiritual progress of society, in art. 9, on promoting the development of culture and scientific research and technical art. 21, on freedom of expression, art. 33, on freedom of art and science, and, finally, albeit limited to the rights related to copyright in art. 35, which protects the work in all its forms and applications.
Classification, however, does not protect any work, but only those that meet certain conditions:
a) first, the work must have a creative nature (art. 1 lda). The creation of the work constituting an original purchase of the work, not being prescribed by Italian law, other formalities (art. 6 lda and 2576 cc). With the creation, therefore, the subject becomes the holder of property rights is both moral rights.
The LDA requires the author to submit to the Presidency of the Council of Ministers a copy or copies of the work (art. 105). Failure to comply with this requirement results in the impossibility for the author to exercise the rights of use. In contrast, under Article. 106 lda, the omission of the deposit without prejudice to the purchase and operation of other intellectual property rights.
is important to mention that for the purpose of creation, the LDA does not require any capacity. The subject, therefore, acquire the copyright, even if incapable of discernment.
b) the work must be created new. It was discussed whether the concept of innovation should be understood in a subjective or objective. This is an important respects, not without practical implications.
To understand the point, make an example. Imagine that the American singer-songwriter Tom writes a song, which, in some verses (or characters), is identical to another song, written years earlier by Caio, unknown Italian singer. The protection of copyright covers only the work created first? Or also protect cc.dd. chance encounters, that is those cases where an author, not knowing the work of others, create something very similar work, ie, new from a subjective point of view, but not from the objective?
It is, therefore, to understand what meaning should be given to the concept of 'creative character, "required by art. 1 lda
If you think to give preference to the creative effort of the author - if it can be shown that the same was not aware of another's work - must be completed for the relevance of the new agreement in the subjective sense. If, on the contrary, it considers the prevailing contribution made by the work culture or art, then it must be concluded that the concept of novelty to be understood in an objective sense.
c) there must be realization, manifestation and externalization of the work.
is not provided by the order, no protection for the work itself, which is not implemented in a durable medium or, where possible, as in the case of literary, orally communicated to third parties. This problem, of course, does not arise in the works that come into existence only with the establishment of a support: consider, for example, a painting. From
transposition in Corpus mechanicum be distinguished from the publication of the work. In the first case, moved the idea of \u200b\u200ba support in the second, it makes the work available to third parties.
should not confuse these two aspects, because, for the birth of the law, it is not necessary to publish the work. Although this view is not shared by all, the LDA seems to be very clear on this: it is evidenced by the art. 12, which the author recognizes "the exclusive right to publish the work." The terminology used indicates that the birth of copyright in the hands of the author before publication, and is indifferent to it.
No matter what the medium used to carry out the idea. Article. 1 lda, in fact, provides that the works are to be protected "whatever the mode or form of expression."
Generally, it works to distinguish between simple and works with composite structure: the first are those who use only one medium (eg, a literary work); the other hand, more resources (for example, work film).
The content provided is new, in the sense just explained, is not relevant. It is, in fact, even assuming a content of the work contrary to public policy and morality, contrary to the provisions on patents and trademarks.
d) to be protected by the LDA, the work must belong to the art or culture.
The work must fall into one of the categories mentioned in Article. 1: literature, music, visual arts, architecture, theater and film. Are also protected databases and software (computer programs defined by the LDA).
Article. 2 contains a list of protected works. They are:
a) literary, dramatic, scientific, educational, religious, whether written or oral. It protected the work of fantasy, so if you think the author deals with situations (think of a novel), the protection extends to them. A particular discipline, however, is expected in newspaper articles, which fall in cc.dd. fair use;
b) musical works, with or without words. The LDA also protects the variations and improvisations provided in a fixed support;
c) choreographic works and pantomimes. Even in this case it is required that is fixed in writing or otherwise;
d) sculpture, painting, drawing (provided he has the artistic features), etching, stage design. The lda, protecting its "similar figurative arts," avoid rigid definition, leaving the door open also to new forms of expression (think, for example, graffiti). It is protected by copyright even industrial design, provided that these «di per sé carattere creativo e valore artistico»;
e) i disegni e le opere dell’architettura. Si è detto precedentemente che la tutela prescinde dalla liceità dell’opera: quindi, il diritto d’autore coprirà anche i casi in cui vi sia violazione di una norma imperativa (si pensi al caso del progetto artistico-architettonico che violi un vincolo storico o ambientale);
f) le opere cinematografiche (sia mute, sia sonore). Tali sono solo le opere, per dir così, complete; quindi, non il montaggio, i dialoghi, la fotografia, e così via, ma solo il risultato dei singoli contributi confluiti in un’unica opera;
g) le opere fotografiche, anche se espresse con un procedimento analogo alla fotografia, salvo quanto previsto da gli artt. 87 e seguenti. La protezione di queste opere è stata riconosciuta solo nel 1979, a seguito dell’adeguamento della l.d.a. alla Convenzione di Berna;
h) i programmi per elaboratore (software), purché rappresentino il risultato di creazione intellettuale dell’autore. La l.d.a. tutela sia i cc.dd. programmi sorgente, ossia il linguaggio originario del programma, sia i cc.dd. programmi oggetto, ossia la “traduzione” del linguaggio del programma in bit o linguaggio macchina;
i) le banche di dati (o database), ossia le «raccolte di opere, dati o altri elementi indipendenti sistematicamente o metodicamente disposti ed individualmente accessible through electronic means or otherwise. " These collections are protected by the LDA in the only case in which the selection of the material included is the result of an intellectual and creative author. What is the object of protection, then, is the collection, classification, systematization of data and works. Of course, such protection shall not affect any rights subsisting in the works and information contained in the database.
Article. 4 lda also protects the "creative elaborations of the work itself." Within this category are very different works: among others, translations into other languages \u200b\u200bor dialects, the transformation from one form to another (For example, the film adaptation of a book), concessions and abstracts; adaptations (often those in the theater), the film remake, and so on to enumerate. Order to have protection, even in this case, however, need a creative contribution of the author and not the mere repetition of another's work.
A special case is the parody. This is a hypothesis which is created when the original work, whose content is usually "real" is played in comic form (as frequently happens in the film industry). The copyright protects parody, provided they do not adversely affect the honor or reputazione dell’autore dell’opera parodiata.
2.1. I soggetti del diritto d’autore.
Si considera autore dell’opera, ai sensi dell’art. 8 l.d.a. e dell’art. 15 della Convenzione di Berna, «chi è in essa indicato come tale, nelle forme d’uso, ovvero è annunciato come tale, nella recitazione, esecuzione, rappresentazione e radiodiffusione dell’opera stessa».
Come si è detto in precedenza, la pubblicazione non è requisito essenziale per far sorgere i diritti d’autore, essendo sufficiente la creazione dell’opera.
Conformemente a quest’impostazione, la l.d.a. si limita a prevedere una presunzione relativa di paternità. For example, if Tom is indicated on the cover of a book as the author, it is your responsibility to Gaius, who claims to be its true author, proof of authorship.
is permitted is the pseudonymous works, and the anonymous (Articles 8 and 9 lda).
The nickname (or name of art) can be used where it has acquired the importance of the name, according to the rule set also art. 9 cc
More complex is the hypothesis of the work published anonymously or with the use of so-called alias-mask, ie with a name that prevents back to the real author. In this case, it is not possible to know the identity of the author, the rights arising the use of the work will be awarded to those who represent, perform and publish the work itself.
The works protected by copyright may be the result of the contribution the creative one or more subjects.
We talk about work when the collective participation of the individual authors and individuals: think, for example, an encyclopedia. In this case, the coordinator and organizer of the work acquires the status of author (Article 7). The right of exploitation of the work under Article. 38 lda, it is for the publisher, unless otherwise agreed. The individual employees work, however, can be used separately its contribution, unless otherwise agreed: consider the case of the writer who publishes his first story in an anthology and, later, in a collection of his stories.
spoken, however, works in union, where the work was created "by the indistinguishable and inseparable contributions of several persons." In this case, the copyright belongs to all co-authors (art. 10 lda).
The peculiarity of the works in communion is the possibility, recognized leader in each co-author, to act individually to protect the moral rights. Similarly, the publication of starvation, as well as the modification or different use of the original work must be approved by all coauthors. Consider, for example, recognized the right to co-author of a song to oppose the use of the same as advertising jingles. Article. 10, paragraph 3, admits that, if the refusal of one or more co-authors are unjustified, the release or modification may be authorized by the court.
Regarding property rights, the LDA requires the undivided shares are to be considered of equal value. It is a rebuttable presumption: it is allowed, then, the contrary is proved, but whether there is agreement about the quotas will be established only by a written document. You
interessante osservare che la bipartizione in questione non è presente nella legge francese sul droit d’auteur, che rappresenta il modello più simile a quello italiano: in questo caso, infatti, l’art. 9 della legge francese, distingue tra oeuvres de collaboration (che racchiudono le opere composte ed in comunione), oeuvres collectives (che sono le raccolte attribuite ad un unico autore, nelle quali non è possibile identificare il contributo dei singoli autori) e oeuvres composites (che sono opere nuove, nelle quali sono inglobate opere preesistenti).
Esistono però alcune eccezioni alla regola secondo cui la creazione dell’opera è unico titolo originario dell’acquisto e, quindi, casi nei quali il original copyright holder is subject other than the actual creator.
Article. Lda 11 provides that the state government (including provincial and municipal) and non-profit organizations are holders of copyright in works created "under their name and their account and costs. You must, therefore, that fulfills these two conditions, because the purchase by the institutions referred to happen automatically.
Another exception is when the creation of a work by an employee. This consequence is expressly provided for in art. 12-bis and 12-b, relating respectively to create software and databanks data and the work of industrial design. Obviously, the employer will become the owner of the only rights over the work, since the moral right will remain in the hands of the worker (ie the creator).
occur for application of the rule, it is necessary that the employee creates the work in the performance of duties assigned to him. For example, if a programmer, working time and the conduct of its business activities, create a source program, the rights of exploitation will be the employer. Quite the contrary, if the programmer writes in his free time, a detective story, copyright (Capital and moral), are exclusively his. The same will happen then, if the employee creates the program source outside of office hours and beyond the tasks assigned to him.
The exception in question has its own justification. The legislature, through the economic return, is about providing an incentive to people (employers) that commit resources to the creation of new works.
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