Neighbouring and special copyrights
Welcome to the neighbouring and special copyrights section
To protect efficaciously your work through copyright you need the help of an expert.
Chiara Morbidi, Esq.
Head of the Legal Department
Below you will find a list of the main topics on the subject, to help you to understand.
- The rights of the phonograms producer
- The movie producer’s rights
- The rights of the radio or television station
- The rights of artists and producer performers
- The rights on photographs
- The rights on engineering works
- The rights on database
- The rights on the title of a book or magazine
The rights of the phonograms producer
Further rights add to rights due primarily to the author, as regards the producer who invested to produce and sell the support (for example a CD) containing the track:
According to art. 72 LA, the producer is entitled to the exclusive right to authorize:
- the direct or indirect, temporary or permanent reproduction of his phonograms by any process of duplication;
- the distribution of copies of his phonograms;
- rental and lending of copies of his phonograms;
- making them available to the public so that everyone can access them at a chosen place and time.
The duration of these rights is fifty years since the recording (art. 75 LA).
The movie producer’s rights
Further rights add to rights due primarily to the author of a movie, as regards the producer who invested to produce and sell the support containing the work itself.
According to art. 78-ter LA, the producer is entitled to the exclusive right to authorize:
- the direct or indirect, permanent or temporary reproduction of originals and copies of the work;
- the distribution by any means, including sale;
- rental and lending;
- making the original and copies available to the public, so that everyone can access them at an individually chosen place and time.
The duration of these rights is fifty years since the recording (art. 78-ter CA).
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The rights of the radio or television station
Further rights add to rights due primarily to the author of a work and secondarily to producers, artists and performers, as regards those who practice radio or television broadcasting activity, who are entitled to the exclusive right (art. 79 LA) to authorize:
- the recording of its own wireless transmissions or by wire
- the direct or indirect, temporary or permanent broadcasting of their recordingsin any manner or form, in whole or in part;
- the retransmission;
- making them available to the public, so that everyone can access them at an individually chosen place or time;
- the distribution;
In addition, radio and television broadcasters are entitled to the exclusive right to use the recording of its emissions for new programs or new recordings.
The duration of these rights is fifty years since the first publication (Art. 79 LA).
The rights of artists and producer performers
The law reserves rights also to actors, singers, musicians, dancers and in general to those who represent the intellectual property created by other authors, a further right in addition to the compensation that these artists receive for their work.
Article. LA 80 provides that the artists and performers are entitled to the exclusive right to authorize:
- the recording of their performance;
- the direct or indirect, temporary or permanent reproduction of their performances;
- communication to the public, in any form and manner, including making them available to the public so that everyone can access their live performances at a chosen place and time, as well as wireless diffusion and satellite communications of their live performance or recording thereof;
- making them available to the public so that everyone can access it at the chosen place and time;
- the distribution of recordings of their live performances;
- renting or lending of their performances recordings.
The duration of these rights is fifty years since the first performance or representation (art. 85).
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The rights on photographs
The copyright Act provides for three different categories of photographs:
- Photographic works, having such creative features to easily recognize the personal touch of the author;
- Simple photographs, as the images of persons or aspects, elements or events of natural and social life, acquired by photographic or equivalent process […];
- Photographic reproductions, i.e. simple reproductions of written papers, business documents, material items, technical drawings and similar products.
Photographic works have both the moral and the economic rights as per Copyright Law (art. 12-19, law 633/41). The use of a photographic work, like any other work, is subject to the author’s permission or his heirs and possibly upon a payment.
The economic rights last his entire life and 70 years after his death.
The simple photographs, on the other hand, grant a number of “minor” rights.
The author, in fact, has the exclusive right of reproduction and distribution/sale besides the right of an appropriate payment for the use of the photographs, providing they display the following details:
- the photographer’s name;
- the date when the photograph was taken;
- the author’s name of the photographic work of art.
Failing this, the reproduction is not illicit and payment is not due.
These rights have a validity of twenty years from the creation of the photograph (art. 92 LA).
Finally, photographic reproductions don’t have any particular protection and can freely be used.
Obviously, it is not easy to distinguish the different types of photographs, for this reason it is always recommended to refer to an expert.
The rights on engineering works
The engineering works, which do not own real artistic feature or which cannot be patented, are subjected to special protection.
Art. 99 LA provides that
The author of engineering projects, or other similar works, constituting original solutions to technical problems, is eligible, besides the exclusive right to reproduce the same plans and projects, to get compensation from those who make the technical project for profit making without his authorization.
In order to apply this kind of protection, it is necessary to add, on the project or drawing, a reserve declaration over the right of use, and file it at the Presidency of the Ministers Advisory Council.
To do this you must make an application with stamp duty on it, enclosing with it receipt of payment of taxes and the project complete with drawings and description with the wording “right of compensation for the reserved realization”.
The duration of these rights is twenty years since the filing of the work (Art. 99 LA).
The rights on database
The term “database” means an electronic or paper gathering
of works or other independent elements, systematically or methodically arranged and individually accessible by electronic means or in other way
(art. 2, n. 9 LA).
The need for the independence of the individual components of a database, such as the necessary arrangement in a systematic or methodical way, will result in the exclusion from the mentioned protection of all the works that are generally classified as “collections of elements” but in which these elements constitute a single body, losing their independent accessibility. A book, in the light of the above, cannot constitute a database.
The law provides for two different forms of protection of the database depending on whether it is a database with creative feature, or a database without particular creativity.
The first case occurs when the database has a particularly original way of compilation, due tothe choice of materials and to the collection process or the data organization.
Under Article. 64-quinquies LA, the author of a creative database is entitled to the full rights under the law on copyright and to the exclusive right to perform or authorize:
a) the permanent or temporary, total or partial reproduction, by any means and in any form;
b) the translation, adaptation, arrangement and any other modification;
c) any form of distribution to the public of the original or copies of the database;
d) any presentation, demonstration or communication in public;
e) any reproduction, distribution, communication, display or performance to the public of the results of operations performed on the database.
When the database does not own creative feature but economic importance for investments made for its implementation, the law recognizes the establisher certain rights, although less broad than the author’s rights.
The establisher is
who makes significant investments for the establishment of a database or for its verification or presentation for this purpose financial means, time or work
(art. 102-bis LA).
Therefore, in order to be entitled to the rights provided by the law, it must be shown that there have been “significant investments” without which any entitlement cannot be established.
The database establisher has the right to prevent the extractionor re-utilization of all or a substantial part of the data by third parties.
The duration of the right of the establisher is fifteen years since the database completion or at least since when it is first made available to the public (art. 102-bis LA).
The rights on the title of a book or magazine
The title of a work, both a book or another publishing work, is protected by the copyright law, even if with some limits.
Art 1000 LA provides that it is not allowed to copy on another work of the same kind the same title without the author’s consent. The same is valid for the titles of sections.
With regard to the titles of newspapers, magazines or periodicals, the title cannot be used until two years have passed after the suspension of the original periodical publication.
The title of a newspaper may in some cases be in conflict with a third-party trademark.
The risk situation is achieved in particular when the title is widely distributed so as to have acquired notoriety.
In this case, the title becomes a sort of de facto mark enabling to determine the nullity of the trademark which was registered if it is well known.
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