Italy: Copyright Law Updated for Digital Era

italy:-copyright-law-updated-for-digital-era

On November 8, 2021, Legislative Decree No. 177 entered into effect in Italy, implementing EU Directive 2019/790 of the European Parliament and Council of April 17, 2019. (L.D. No. 177.) In compliance with the European Commission’s call on member states to comply with European Union (EU) rules on copyright in the Digital Single Market, the new legislation contains sweeping amendments that update copyright law, chiefly concerning intellectual property rights in the digital era.

Visual Artworks

Reproduction of a visual artwork after the copyright protection term expires is no longer subject to copyright, unless the reproduction constitutes an original work. (Art. 32-quarter(1) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(b).)

Online News Publications

Online service providers must recognize the exclusive reproduction and communication rights of online news publications. (Art. 43-bis(1) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(c).) The law defines “news publications” as those composed mainly of literary works of a reportorial nature, which may include other protected works and materials (such as photographs or videos), that are regularly updated, under a single title, to inform the public about news, and which are published by any means of communication under the editorial responsibility and control of a publisher or news agency. Scientific and academic periodicals are not considered news publications. (Art. 43-bis(2) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(c).)

When works or other material are included in a news publication on the basis of a nonexclusive license, copyright cannot be invoked to prevent their use by other authorized users or to prevent the use of works or other materials whose protection has expired. (Art. 43-bis(5) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(c).)

Copyright protection does not apply to the private or noncommercial use of news publications by individual users, to hyperlinking, or to the use of single words or very short extracts of such publications. (Art. 43-bis(6) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(c).)

In contracts for the use of copyright-protected works, service providers may not limit the visibility of the publishers’ contents in the search results, and any unjustified limitation could constitute a violation of the obligation of good faith in negotiations established by the Civil Code. (Art. 43-bis(9) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(c).)

Copyright over works in news publications expires two years after their publication, calculated from January 1 of the year after publication. (Art. 43-bis(14) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(c).)

Compensation of Publishers, Authors, and Artists

Information service providers (prestatori di servizi delle società di informazione) must make available the data necessary to determine fair compensation for publishers, who in turn must respect the confidentiality of the accessed commercial, industrial, and financial information. (Art. 43-bis(12) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(c).)

Authors, directors, performers, and other supporting artists are entitled to receive royalties based on a percentage of the proceeds from public screenings of artistic works. (L.D. No. 177, art. 1(1)(e).)

Educational and Research Use

Works and materials may be freely excerpted and adapted by digital means when done exclusively for educational and noncommercial purposes by an educational institution, whether on its premises, in another place, or in a secure electronic environment accessible only by the teaching staff or enrolled students. (L.D. No. 177, art. 1(1)(i)(1).)

Research institutions are authorized to extract text and data from works or other materials available in networks or databases to which they have lawful access, to reproduce them for the protection of cultural heritage and for scientific research, and to communicate the results of their research expressed in new original works to the public. (Art. 70-ter(1) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(i)(5).)

Online Content Sharing Service Providers

Online Content Sharing Service Providers (OCSSPs) are providers who store and give the public access to large quantities of copyrighted works or other protected materials, which their users upload, when the works or other materials are organized and promoted to profit directly or indirectly from them. (Art. 102-sexies(1)(a)–(c) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(n)(1).)

Providers of access to nonprofit online encyclopedias and educational or scientific works, open source software development and sharing platforms, electronic communications service suppliers, and providers of online marketplaces, business-to-business cloud services, and cloud services that allow users to upload content for personal use are not considered OCSSPs. This exception does not apply to online marketplace or cloud services that allow works protected by copyright to be shared among multiple users. (Art. 102-sexies(2) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(n)(2).)

OCSSPs are liable for unauthorized acts of communication to the public and for making available to the public works and other materials protected by copyright. (Art. 102-septies(1) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(n)(5).)

Out-of-Commerce Works or Other Materials

Works or other materials are considered out-of-commerce works when it can be assumed in good faith that they are not available in their entirety to the public through the usual commercial channels within the EU, in any version or storage medium. Works not available in commercial channels for at least 10 years are presumed to be out-of-commerce works. (Art. 102-undecies(1) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(o).)

These provisions do not apply to sets of works or other out-of-commerce materials consisting mainly of: (a) works or other materials other than film or audiovisual works published or broadcast for the first time in a third country, (b) film or audiovisual works whose producers are located in a third country, and (c) works or other materials of third-country nationals that cannot be reasonably identified as from an EU member state or a third country. (Art. 102-undecies(5)(a)–(c) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(1)(o).)

A license concerning out-of-commerce works or other materials in Italy or in another EU country may allow for their use by cultural protection heritage institutions in any EU country. (Art. 102-quinquiesdecies(1) of Law No. 633 of Apr. 22, 1941, added by L.D. No. 177, art. 1(o)(5).)

Parliamentary Report on Compliance with Digital Copyright Amendment

Within two years, the Italian Authority for Guarantees in Communications to Parliament must send a report to the Italian Parliament on the impact of the new legislation, in particular, concerning the criteria and methods for determining fair compensation for news publishers, authors, artists, and performers. (L.D. No. 177, art. 2(1).)