- What is copyright
- The author of the work
- How to obtain it
- Types of protected work
- The types of rights given to the author by the law
- Copyright assignment and license
- Exhaustion principle
- Free licensing
- The difference between copyright and right of the author
- Filing with SIAE unpublished works
You: What type of work may have “creative characters”?
Art. 1 of Copyright law establishes that protection should concern all the intellectual creative works belonging to:
- figurative arts
- theater and cinematography
no matter the way and the type of expression.
Computer programs also, seen as literary works, belongs to the field of protection of the Copyright Law.
We deem that the list provided by the art. 1 CL is only illustrative and protection can be extended to works different from those explicitly indicated.
Creativity, what this concept means for the law
As for the concept of creativity, it is not considered in absolute terms but it refers to a subjective, individual expression of an objectiveness.
Therefore, even a work that is the product of a “creative act”, also a minimum one, reflecting itself in the external world, can be protected.
As a consequence, not only “literary” works per se (poetry, narrative, essay writing, ect.) but also those texts in which the word communicates information created and organized in a subjective and independent way by the author, for example, are protected (Cass. Civ. 11953/1993).
In order to be protected, the work need to have a form of expression.
The protected form is the “external” one, like the text of a book or the realization of a painting but also the “internal” one, considered as the structured organization of some ideas, the plot of a book, the relation among the subjects of an image.
Simple ideas instead are not protected. Ideas are freely appropriable, as a teaching from a book, and there is no need for asking the permission of the author.
As explicitly indicated in art. 8 CL,
The author of the work is, unless it is proven otherwise, the one who is indicated as such in the forms of use, or, is announced as such in the acting, execution, representation or radio broadcast of said work.
Therefore, the one who claims to be the author is such unless it is proven otherwise.
If a work is created by more than one person, copyright lies with them all.
Employers and projects, what happens in these cases
In some case copyright does not belong to the author.
Art. 12-bis CL provides that
Unless different agreements, the employer owns the exclusive right to benefit from the computer program or the database created by the employee during the fulfilment of his/her tasks or upon instruction given by the employer him/herself.
Similarly, with regard to photography, the art. 88 CL establishes that
Nevertheless, if the work was created during the fulfillment of his/her working contract, within the limits of the object and the purposes of the contract, the exclusive right lies with the employer. Unless different agreement, the same rule is applied in favor of the purchaser in the case of a photography to an object owned by the purchaser, unless the one who will use the picture for economic purposes pays the photographer with an appropriate amount.
A peculiar case concerns public administrations to which belong the copyright for all the works created and published in their name on their behalf and at their expenses (art. 11 CL). The same right is owned by non-profit private organizations, academies and other cultural organizations with reference to their records and publications.
Differently from patents and trademark, to obtain copyright there is no need of a filing since it is sufficient being able to prove to be the author of the work and to have created it before others.
For this purpose, in order to facilitate the proof regarding the paternity of the work, it is advisable to file the work with an entity able to certify the date.
In Italy this role is performed by SIAE where a number of works, also unpublished, can be filed.
SIAE certifies the filing which obtains a number and a date of filing but it does no searches concerning the content of what is filed. Thus, if a work is not protectable in accordance with the Copyright Law, such filing does not acquire rights even if the filing were accepted by SIAE.
Art. 2 CL furnishes a list of works which can be protected on the basis of the Copyright Law and states that the following works are protected:
- Literary, dramatic, scientific, teaching religious works written and Oral;
- Operas and musical works, with or without words, musical-dramatic works and the musical variations which represent an original work in themselves;
- Choreographic and pantomimic works, having a written or other form;
- Drawings or works of architecture;
- Works of the cinematographic art, silent or talking, unless it is not a simple documentation protected by the rules of Title 2, Chapter 5;
- Photographic works and those expressed with proceeding similar to the photographic if it not a simple picture;
- Computer programs, expressed in any form at the condition that they are original and the result of an intellectual creation of the author;
- Databases considered as a collection of works, data or other elements systematically independent or methodically organized and individually accessible through electronic devices or in other ways.
Creative elaborations of works such as translations, amendments, additions, adaptations and transformations are also protected.
Therefore, it is necessary to pay attention to not modifying someone else’s work with the purpose of “masking it” and using it without paying the rights because this may as well be an unlawful.
The acts of the nation, of the Italian or foreign public administrations, are not protected by copyright.
The exclusive benefits of the author
The rights given by the law are divided into two categories:
- Rights of economic usage;
- Moral rights.
Rights of economic usage
With regard to economic rights, the law distinguish, depending on the type of work, between primary rights and secondary or related rights.
Primary rights are granted to works that benefit of full protection of copyright.
Related rights instead are “added” to primary rights and have less relevance and a shorter duration. Finally, there are the “sui generis” right concerning some types of works, in particular databases.
Let’s focus now on primary rights.
Primary rights give to the author of the work the right to:
- Publish and use the work in any form and method;
- reproduce the work, multiplying it with all means;
- execute, represent or act in public;
- diffuse, using broadcasting media;
- distribute and sell by any means;
- translate, elaborate, transform the work;
The fact that this right is reserved to the author means that the no one else could perform one or more of the mentioned actions without the consent of the author and without paying him/her a reward.
Next to these rights, regulating the economic aspects of the utilization of the work, there are the moral rights of the author.
The moral rights are the right to be recognized as author of the work and to prevent others from modifying it without his/her consent.
As established by art. 20 CL,
the author preserves the right to claim the paternity of the work and to oppose any deformation, mutilation or other modification, to any other type of act that may damage the work itself, effect its honor or its reputation.
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The assignment of the copyright implies the total transfer to the purchaser of a certain right that has to be well specified in the contract of assignment.
It is necessary to distinguish between the assignment of the work (the so-called “corpus mechanicum”) and author’s rights on the work (the so-called “corpus mistycum”), which except different agreement, belong to the author even after the assignment.
According to art. 109
The assignment of one or more samples of the work does not imply, unless agreed otherwise, the transfer of the rights to use.
Furthermore, we deem that the purchaser of the work cannot use its image for advertising purposes or to sell pictures representing it. Some people think that the purchaser of the work cannot even show it without the consent of the author, but this is not the majority opinion.
The transfer of the proprietary rights of the author to the purchaser, in whole or in part, has to appear in a specific contract.
The license contract is a contract with which the author allows to a third party the right to use his/her work for a precise period or purpose but s/he maintains full ownership.
Once the license contract lapses, the author has back all the rights on the work and s/he may give them to someone else.
Both the assignment and the license can concern all or part of the rights. License may be exclusive or not exclusive.
Law explicitly regulates publishing, representation and performance contracts. All the other types of contract should be arranged on the basis of the specific requirements of the case.
Contracts of assignment and of license of the author’s rights are very complex and require a specific attention and competence. For this reason, we suggest to resort to an expert of the field before arranging or signing one of these contracts.
The transfer of the right of use has to be proven in written
(art. 110 CL).
After this period, works are in the “public domain” therefore, works belonging to authors dead 70 years ago or more can be freely published.
Even if the rights in works were assigned on the basis of a publishing contract with a publishing house, aside from the fact that the longest duration of such contract is of 20 years (art. 122 CL), it has as object the rights of use belonging to the author
with the content and the duration decided by the law
(art. 119 CL) therefore, according to the art. 25CL, it cannot exceed the copyright’s duration.
To this rule is to be added the art. 20 CL which protects the author’s moral right exercised, according to art. 23 CL, by the heirs «without time limits».
Thus, the publication of an out-of-copyright work is possible if the honor of the artist is not compromised or if prejudice does not arise against the author. In this case, the heirs may speak out in defense of the dead author.
For some types of works the duration of copyright varies, in particular for the works which benefit of related or “sui generis” rights.
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This means that once the author puts a work on sale, he cannot oppose to the subsequent circulation of that work which could be sold or gifted to third parties without his/her consent. (art. 17 CL).
But if on the one hand, the selling of the work legitimately bought is permitted, on the other the copy, the duplication and even the rental are not. Thus, if someone buys a CD which includes an opera, the purchaser may sell that CD but not duplicate it or transfer the file containing that music recorded on that CD.
According to art. 185 CL
this law is applicable to all works made by Italian authors, anywhere published for the first time
to all works of foreign authors, domiciled in Italy, published in Italy for the first time.
The International convention regulates the protection area of the copyright Law regarding foreign authors.
In particular, the Bern Convention of 1866 establishes that all citizens of the States acceding to the Convention, almost all the countries of the world, benefit of a similar protection offered by the country to its citizen and that this protection has to include minimum guarantees.
Therefore, the citizens of the countries acceding the Convention who use their work in Italy benefit of the protection of the Copyright Law.
The rights concerning intangible assets are regulated by the law of the country of utilization (art. 54, Law 218/1995) therefore the Italian Author Law is applicable to the works used in the Italian territory.
Some uses of the works protected by copyright are free, that is that they may be used without asking for the consent.
The following is allowed:
- the summary,
- the quotation,
- the playing of a song or of parts of an opera if made with a critical intent or for a debate, or for teaching purposes,
if there are no commercial purposes.
The free publication of images and songs with low resolution, for teaching or scientific purposes, is allowed through internet if there is no profit.
The summary, the quotation, the playing has to be always accompanied by the mention of the title of the work, the name of the author, of the publisher and, in case of a translation of the translator, if this information appears on the work (art. 70 CL).
It is possible to reproduce newspapers or reviews, indicating the source, articles about current events, of economic, political or religious character, published in regular press, unless the reproduction was explicitly forbidden (art. 65 LA), which often happens.
It is also possible to reproduce report in newspapers or reviews, indicating the source, discourses concerning political or administrative topics held during public meetings or in public within the limits justified by the informative aim (art. 66 LA).
In particular, for what concerns newspaper articles, art. 101 CL establishes that the reproduction of information and news is lawful unless performed with the usage of acts ATTI contrary to the honest usage in the journalistic field and unless the source is cited.
Finally, the playing of operas or part of them in juridical and administrative proceedings is lawful (art. 67 CL).
The two terms are often used as synonyms, we too are using the term copyright to refer to the rights of the author.
Actually, the term “copyright” should be used in reference to the US Law regulating, as said by the term itself, the right of copy a work.
The US Law is based on principles which are different from those of our copyright law and it is mainly directed to economic rights of the author more than moral ones.
The US Law, as well as the Italian one, does not require the filing in order to obtain protection for a work.
Copyright is automatically guaranteed at the moment when the work is created, or rather, “fixed” for the first time in a sample or recorded the first in an audio devices. However, the filing at the Copyright Office is highly recommended.
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The filing is made at SIAE.
Any kind of literary and artistic work books, songs, stories, poetries, screenplays, plots, subjects, audiovisual works, software, databases, graphic works, and intellectual works in general, can be filed.
This service is also available for those who are not SIAE associated and foreigners.
With this deposit there is the big advantage of having secure evidence on the work’s creation date.
In par. B) of the Filing Conditions specifies «the deposit is a personal matter and is accepted by the SIAE as an evidence of the work’s existence at the filing date».
To make a deposit it is necessary to have a copy of the work that needs to be protected, as a paper document and/or magnetic support.
Such copy, accompanied by a statement of authorship, is retained by SIAE, which puts it in a closed envelope and stores it, secured from public access. The depositor will receive a certificate with the filing reference number.
The deposit has duration of 5 years and can be renewed upon termination for an equal period; the owner can withdraw it at any time.
If, upon termination, the owner does not withdraw the work nor renews the deposit, SIAE has the authority to destroy the material.
The deposit does not give any rights to acquire the title of SIAE’s associate or the work’s protection by them. SIAE is not bound to read it or to evaluate or place the filed work, neither has it got any responsibility of possible infringement or illicit use.