3. The rights related to copyright.
T. Ascarelli Theory of Competition and intangible assets, 3rd ed., Milan, 1960; G. Oppo, intellectual creation, creation and intellectual property rights of exploitation, in Riv. dir. Civ., 1969; M. Fabiani, the copyright in treatment. dir. priv. dir. by Rescigno, Torino, 1983; M. Ammerman, Copyright. Substantive law, in Dig. disc. priv., sec. Civ., Torino, 1989.
Law No 22 April 1941 633; Articles. 2575-2583 cc
As seen in previous pages, the copyright is composed of a sphere with a sheet and moral sphere.
The rights related to copyright include various faculties that can be performed by the author listed, without limitation, by lda
Article. 12 lda author recognizes the right to use the work in any form, whether original or derivative (as in, for example, the translation).
exploitation rights recognized by the LDA are: the right of reproduction in multiple copies of the work (Article 13), the right to oral transcript of the work (Article 14), law enforcement, acting in representation or public (Article 15) the right of communication to the public (art. 16), the distribution right (art. 17), the right to development, translation and publication collection of works (Article 18), the right to hire and to lend (art. 18-bis), the right of amendment (art. 18, para. 3).
These powers are available. Article. 107 lda in fact provides that the rights of exploitation "can be purchased, sold or transferred in all ways and means permitted by law." The author, however, to have the availability of such rights must be at least sixteen.
The act of a provision relating to the powers conferred by Articles. 13-18 lda, does not involve, however, the other. For example, if I give the right to work hearing transcript, this does not mean he has also given the right di distribuzione o di traduzione (art. 19 l.d.a.). Quindi, sarà necessario che siano specificate, al momento della cessione o della trasmissione, quali facoltà rientrano nel contratto e quali, invece, ne sono escluse.
I contratti devono essere fatti per iscritto. Si tratta, però, di una forma ad probationem, che non influisce sulla validità del contratto concluso.
I diritti patrimoniali, infine, hanno una durata limitata nel tempo. Tale durata, però, è indipendente rispetto all’esercizio del diritto.
L’art. 25 l.d.a. dispone che i diritti di utilizzazione economica durano tutta la vita dell’autore e sino al termine del settantesimo anno solare dopo la sua morte.
In caso di opere in communion, that period runs from the death of the last author. Conversely, where it is a collective work, the duration of the rights of economic utilization belonging to each employee is determined on the life of each. Finally, in case of an anonymous work, the seventy years following the publication of the work.
3.1. The author's moral rights.
Copyright, as well as property law, also requires the moral rights of authors.
The moral law has some unique characteristics.
is inalienable, indispensable and unavailable. Is zero, then the contract under which a person sells these rights to third parties or act by which a person renounces. The moral right may also be exercised in case of transfer of rights of exploitation.
However, if the author, know, accept certain changes to the work, it can then prevent the execution or request the removal of the works.
The moral right is inalienable also, since any failure to exercise does not involve the loss of the right.
is also not subject to time limits. After the death of the author, in fact, right within the moral right can be exercised without limit of time and also separately, "the spouse and children and in their absence, parents and other direct ascendants and descendants, in the absence of the ascending or descending, the brothers and sisters and their descendants' (Art. 23 lda). Heirs (as well as the legatees of the works) it is also the right to publish any unpublished. The author, however, may expressly prohibit the publication of his unpublished works, as it may determine that such unpublished not be published before a certain date (Article 24).
The moral right is made up of different faculties: the right of authorship (Articles 20 and 2577, co. 2), the right to reveal the authorship of the work, in case of an anonymous work (Article 21); the right to oppose any distortion, mutilation or other modification of, and any action in relation to the work itself, which might be prejudicial to her honor or reputation (Article 20), the right to unreleased (art. 24), the right of withdrawal work from the market provided it helps serious moral reasons (Articles 142 and 143).
Particularly important is the first of the faculty. In the case of the right of paternity, the objective pursued by the legislation is twofold. On the one hand, we want to recognize the author the right to prevent uses that may damage his honor and reputation or, in some cases, may also harm its reputation. Second, there is a protection extraindividuale that seeks to uphold the truth in the allocation of work.
4. Exceptions and limitations.
M. Ammerman, Copyright. Substantive law, in Dig. disc. priv., sec. Civ., Turin, 1989; N. Abriani, The fair use in the information society: general considerations, in AIDA, 2002, P. Spada, private use and works under lock and key, in Riv dir. ind., 2002; M. Senftleben, Copyright, Limitations and the Three-Step Test, Kluwer Law Int 2004; L. Chimienti, Outlines of the new copyright law, 7th ed., Milan, 2006.
Law No 22 April 1941 633; Articles. 2575-2583 cc
The LDA provides for limits on the exercise of rights to use economic background of the authors.
In some cases, protected works - so do not yet fallen into the public domain - are not susceptible to exploitation by capital of their creators or other rights holders.
These exceptions and limitations - previously qualified fair use - are justified because they meet the public interests, such as the dissemination of culture, art and knowledge, development and expansion of information, protection of persons living in special situations difficulties (the disabled, prisoners, patients in public hospitals, etc.)..
Some examples may clarify the point.
Article. 65 lda provides Articles that current economic, political or religious group, published in magazines or newspapers, be freely reproduced, provided that they are specifically indicated the source from which they are taken, the date and name (it is also necessary reproduction or use has not been expressly reserved). Similarly, Article. 70 lda admits that you can summarize or quote passages or parts of other works, provided that this is done for purposes of criticism, discussion or research. Of course, not be reproduced whole work or part of a competition as important to determine the economic use dell’opera. Si pensi, ad esempio, alla differenza che intercorre tra un articolo nel quale si discute una determinata opera letteraria ed un commento all’opera, con riproduzione della stessa: il primo caso rientra nell’ambito delle eccezioni ai diritti di utilizzazione economica; l’altro, in assenza di un’autorizzazione alla pubblicazione integrale dell’opera, costituisce illecito sfruttamento.
La disciplina delle utilizzazioni libere, nel corso degli ultimi anni, ha subito non poche modifiche, spesso dettate dalle direttive comunitarie.
Si pensi al diritto di fotocopiare opere protette, garantito dall’art. 68 l.d.a. entro precisi limiti quantitativi (il 15%, del volume o del periodico, escluse pages of advertising).
One issue of particular importance is the protection of private copying. In Italy, this aspect has been reformed with the No 93 of 1992, which introduced the right to make a copy of videograms and Phonograms Treaty and recognized a compensation system on the part of owners of copyright (regulation then radically amended by Legislative Decree no. 68/03 which implemented Directive 2001/29/EC).
Article. 71-e lda, the person who acquires property is entitled to one (and only) private copy, even analog, for personal use. Playback can be in any medium. However, it is necessary that the copy is done by individuals, without the use of intermediaries and not be reproduced on behalf of others, even if they belong to a closed and limited (for example, friends or relatives). Although the rule says nothing about, it is necessary that the source from which the copy is legitimate and so it is not permitted private copying of works counterfeit, or in relation to information technology, the reproduction of the means of sharing programs File (peer-to-peer).
But, above all, they must respect the three-step test of the Berne Convention, that the creation of private copying can not be "inconsistent with the normal exploitation of the work or other materials or so as not to cause 'unreasonable prejudice to the rights holders. "
This is particularly important, because it involves the legality of digital rights management, or devices that prevent copying of phonograms and videograms.
fact, collide, in this case, two conflicting requirements. On the one hand, the producers, who seek to prevent the counterfeiting of works. Second, the legitimate claims of consumers, who lose a faculty (or, according to some, a subjective right) on the work, and by the same authors, which, however, are deprived of the lump sum compensation for private copying.
5. Related rights.
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; Aa.Vv., Le droit d’auteur et les droits voisins dans la société de l’information, COM(96); S. Ercolani, Il diritto d’autore e i diritti connessi: la legge n. 633/1941 dopo l’attuazione della direttiva n. 2001/29/CE, Torino, 2004.
Legge 22 aprile 1941 n. 633; artt. 2575-2583 c.c.
I diritti connessi (anche detti diritti vicini, in ossequio alla terminologia adoperata dalla legge francese) non rientrano, in senso stretto, nell’ambito del diritto d’autore.
In fact, it can be merged in quest'alveo a disparate range of rights, which, however, have a direct connection with the works. The
rights, governed by Title II of the LDA, are numerous. Among the most important are: the rights of the producer of phonograms, the rights of producers of cinematographic or audiovisual works, the rights relating to the issue radio and television, the rights of performers and performing artists; rights to the photographs, and editorial correspondence to the picture.
The thing that unites these rights is given by the fact that, unlike copyright, there is no creative act. Therefore, rights related are justified in doing business (as in the case of producers) or in an artistic and professional (as in the case of interpreters), but connected with a work protected by copyright.
recognition (and the increased importance) of these rights reflects the need to be protected, even those involved in cultural and artistic industry, permitting reproduction, dissemination and execution of the works. A need felt completely alone in recent times, as evidenced by the fact that many of these rights have been recognized (or significantly expanded) only with Directive No. 92/100/EEC, implemented in our system by d. lgs. November 16, 1994, No 685.
6. Violations of copyright and defenses.
A. Frignani, el'inibitoria The injunction in the common law in Italian law, Milan, 1974; M. Fabiani, the copyright in treatment. dir. priv. dir. by Rescigno, Torino, 1983; M. Ammerman, Copyright. Substantive law, in Dig. disc. priv., sec. Civ., Turin, 1989; L. Nivarra, Dolo, guilt and good faith in the system of "sanctions" for the protection of intellectual property, in AIDA, 2000.
Law No 22 April 1941 633; Articles. 2575-2583 cc
It has been said that the copyright assigned to specific people (the author or its successors) an exclusive exploitation and economic exploitation of the works created. At the same time, however, the law also protects the moral rights of the creator.
course, the LDA provides a variety of remedies for violations of both property law, both the moral right.
You must, however, pointed out that, for there to be infringement of copyright is not necessary that the work is put on the market counterfeit, or that the offender will derive a financial advantage.
Therefore, the mere reproduction is sufficient for the realization of this case illegal, as the mere unauthorized use of the work.
important, however, is the distinction between counterfeiting and plagiarism, although in practice the boundary between the two figures may sometimes be blurred. It has
infringement occurs when a lesion of the right of the author, but the authorship is nevertheless given to the real author. It does not matter that the work has been modified by the infringer. Consider the case of the person who duplicates a work record, without authorization, and put it on the market, merely duplicate the content of the work and to photocopy the cover, or to imitate the packaging.
You will, however, plagiarism, where the subject does not merely duplicate illegally the work, but he attributes the authorship. Consider the case of a writer who received a manuscript from a colleague, please send it to a publisher attribute the work.
It is, moreover, that plagiarism and counterfeiting can co-exist (resulting in the unlawful plagiarism-counterfeiting). This case occurs when a person takes over the authorship of the work and try to benefit from your assets.
must also set out that the two figures occur even when the plagiarism or infringement does not cover the entire work, but only a part of it. In reality, however, as many practical examples show us is not always easy to identify the allegedly unlawful acts (specialmente nel settore della musica leggera).
Laddove venga riconosciuta una violazione del diritto d’autore, il giudice può ordinare diversi provvedimenti.
Tra i più frequenti, ricordiamo: l’accertamento e l’inibitoria; il ritiro delle opere dal commercio e la loro distruzione; il risarcimento del danno, ma solo nei casi in cui il soggetto abbia agito con colpa o dolo (non è ammesso il risarcimento nei casi di c.d. plagio involontario); la pubblicazione della sentenza di condanna.
7. Conclusioni.
W. Kingston, Innovation, Creativity and Law, Kluwer Acad. Publ., 1990; J. Litman, Digital Copyright, Prometheus Books, 2001; M. Boldrin – D.K. Levine, The Case Against Intellectual Property, 92 American Econ. Rev. Papers and Proceedings 209 (2002); L. Lessig, Free Culture, How Big Media Uses Technology and the Law to Lock Down Creativity, Penguin Press, 2004; F. Macmillan, Copyright's Commodification of Creativity, in AV Narsimha Rao (ed.), Copyright Law: Concepts and Cases, ICFA Books, 2005; C. Galli, rights of intellectual property and return on investment, in AIDA, 2005; R. Case, Digital Rights Management. The trade of digital information between contract and copyright, Padova, 2004 (but ried. 2006).
After this brief (and necessarily incomplete) overview of copyright, it is possible to formulate some concluding remarks.
However, before you try to trace the possible future scenarios, it seems essential groped to answer a question: What is copyright?
previous pages you have seen how this law has developed over time, and what rights, exceptions and defenses. The decision to postpone the "reasons" of copyright was not random, since the challenging question that we asked if it can not be answered when you have a picture of the law.
It should be noted, however, that questions about the reason of copyright does not lead to an answer.
According to some, In fact, with the copyright law would protect the creations and the general interest that these creations are disseminated to the public by the authors. In this way, on the one hand, it would lead to social progress, and second, would ensure the development of the personality of the author, answering the requirements of Article. 2 cost.
More pragmatically, however, is another view (not necessarily incompatible with the previous one), it is possible to find especially in the American legal literature.
It is argued that copyright law would find its foundation in economic rules.
To understand this, however, we must take a step back. The right
reabsorbed into the author's intellectual property. In this case, however, the term property acquires a special significance, since, as we have seen, the law has created the work, not the media that contains it (and it is no coincidence, then, that the German legislature The term refers to the property only tangible objects).
In fact, the right to property is, essentially, the right to exclude others from the enjoyment of certain property. If I use my car to go to work, other people can not use it. In contrast, under the intellectual property, the law does not exclude others from use of the work. Ed, infatti, nel momento in cui ascolto una canzone, non la sottraggo al suo autore, né impedisco che altri ascoltino, nello stesso momento, la stessa canzone.
In questo modo, si comprende perché i beni immateriali godano di forme di tutela differenziate rispetto ai beni materiali. Difatti, se non riconosco un diritto sulla creazione, nessuno sarà incentivato a fare degli investimenti per favorire l’innovazione. Ognuno attenderà che altri facciano questo investimento, per poi utilizzare la creazione gratuitamente, senza dover sopportare le spese per la sua iniziale realizzazione.
Una simile ricostruzione, però, è valida per alcuni ambiti della proprietà intellettuale ed industriale (ad esempio, per i brevetti), but not entirely justify the protection of copyright. In fact, if you imagine a drastic reduction in the number of patents, exclusive rights should disappear, the same can not be said for the copyright. While not wanting to end in a simplistic reading, it seems clear that the creative processes in art and literature, not always meet the criteria of affordability (it's all too easy to see that Homer wrote the Iliad and Odyssey without the prospect of a economic return, and likewise, this reconstruction effort to explain the reasons why amateurs to create new works).
In conclusion, it can be said that perhaps the solution is in the middle, assuming indicated that both functions can serve as a justification of copyright, albeit with certain exceptions.
But, regardless of attempts to justify it, it seems clear that the copyright - especially before the development (and often aggression) from the internet and new technologies - is experiencing a time of severe crisis.
Although this is not the most appropriate venue to discuss these issues, it is sufficient a quick overview of the most significant and current topics:
a) the duration of property law: Many authors argue that the term of copyright is excessive. If you look at the history of legislation governing the sector in examination, we see that this period of time has been a progressive and significant expansion (through, for example, in the American system from 14 to 70 years). Ensure lasted so long, in fact, does not guarantee incentives to creativity, which could also be insured with shorter periods. And, above all, should be reduced the duration of rights, because they directly affect the creative processes.
b) private copying and fair use: the system of exceptions and limitations tends to be continuously narrowed. The example mentioned of digital rights management is symptomatic of a trend towards the sharp contrast between the interests of producers and consumers. The problem of piracy can not be solved by simply increasing the penis, it is necessary to think of new means of protection, taking account of new technologies, distribution of books and the new market of cultural industries;
c) authors' rights: the law are preparing to solutions which could benefit the rights of authors, rather than those of the holders of related rights. It is known fact that only a small part of the proceeds arising from the economic to the creators of the works is for them.
d) to differentiate the consumer market: it is shown that not all consumers are willing to pay the same price for the works. Consider the example creative commons. Some writers have published their book on the Internet, enabling network users to download it. It may seem strange, but sales not only did not decline, compared to previous publications by the same authors, but increased. This means that there are different consumer groups. Firstly, those which, however, buy the book in the library, even if they can download it (think the fans of a particular writer). Then there are those who download from the Internet and that in any case, do not buy that book in a bookstore. Of these, some downloading the book, I read the one hand and, considering that it is not particularly interesting, interrupt reading. Others, however, after downloading the book and started reading it, are passionate about the plot and decide to buy the print edition in the library. As can be seen - despite the inevitable simplification which we are forced - there is a decrease in sales and there is no damage to either the authors or holders of related rights.
Those highlighted are a limited number of issues that are discussed today in the field of copyright. It is complex, if not impossible, to evaluate predictive and say what will happen in the future.
But something sure is: it is necessary to rethink the rules of copyright. And this rethinking goes, necessarily, for the analysis of the objectives assigned by the authorizing this branch of law. It should, therefore, do not forget, in any case, that the copyright exists to protect, first and foremost, the authors and to protect the cultural and artistic works, encouraging their spread in the audience of potential users. The goal, ultimately, must be to promote the "production" of ideas, with the understanding that knowledge (especially if shared) is not a good competition, but an indispensable instrument for the promotion of progress.
0 comments:
Post a Comment