ITALY Law and Practice Contributed by: Monica Riva, Alessandra Ottolini, Francesco Chierichetti and Giulia Ghidini, Legance
necessary to exploit works created in the performance of the employee’s duties, but the scope should be expressly regulated. Specific statutory rules apply to software, databases and industrial design works. Under the Italian Cop- yright Law, Article 12-bis is not a general statutory rule: by its wording, it applies specifically to software and databases created by an employee in the perfor- mance of their duties or under the employer’s instruc- tions. Article 12-ter contains a similar specific rule for industrial design works. That said, Italian case law has often treated these provisions as reflecting a broader principle: economic exploitation rights may vest in the employer or cli- ent where the work is created in the performance of employment duties, or under a commission whose object is precisely the creation of the work for the client’s economic exploitation. This should still be expressly regulated contractually, especially for con- tractors. Moral rights remain with the individual author. 3.4 Scope of Rights and Moral Rights Copyright owners have the exclusive right to publish and economically exploit the work in any form or man- ner, whether original or derivative. Economic rights include: • reproduction; • distribution; • communication to the public; • making available online; • public performance or display;
• the right to object to modifications or distortions that may prejudice the author’s honour or reputa- tion; and • the right to withdraw the work from the market for serious moral reasons. Moral rights are inalienable, non-waivable and, after the author’s death, may be exercised by the persons identified by law. 3.5 Term of Protection and Termination Economic rights generally last for the life of the author and for 70 years after the author’s death. For works of joint authorship, the term runs from the death of the last surviving co-author. Specific rules apply to certain categories of works and related rights. Italian law does not have a US-style termination right. However, authors and performers may have statu- tory protections in exploitation contracts, including transparency and fair remuneration mechanisms and, in cases of non-exploitation of rights granted on an exclusive basis, the possibility to seek termination or revoke exclusivity under the rules implementing the DSM Directive. 3.6 Limitations, Exceptions and Defences Italian Copyright Law contains a closed list of excep- tions and limitations ( libere utilizzazioni ), which include: • private copying for personal purposes; • quotation and citation for criticism, discussion or review; • certain uses for teaching and scientific research; • uses for reporting current events; and • specific exceptions for text and data mining. Parody, caricature and pastiche are recognised in line with EU law, even though their practical scope is assessed on a case-by-case basis. Courts interpret exceptions restrictively. The use must fall within the statutory purpose, be proportionate and comply with the three-step test: it must not conflict with the normal exploitation of the work and must not unreasonably prejudice the legitimate interests of the rights holder. Quotation, for example, must not sub-
• adaptation; • translation; • transformation; • rental; and • lending, subject to statutory limitations.
Economic rights may be transferred or licensed, but transfers are interpreted according to the rights expressly or necessarily included in the agreement. Italian law recognises strong moral rights, including: • the right to claim authorship;
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