ITALY Law and Practice Contributed by: Monica Riva, Alessandra Ottolini, Francesco Chierichetti and Giulia Ghidini, Legance
stitute the original work nor create economic competi- tion with it. 3.7 Copyright Enforcement and Remedies Copyright infringement consists of any unauthorised use of a protected work within the scope of the rights holder’s exclusive rights. It may involve unauthorised reproduction, communication to the public, distribu- tion, adaptation or making available online. Italian case law also distinguishes counterfeiting, plagiarism and plagiarism-counterfeiting, depending on whether the conduct concerns economic exploitation, appro- priation of authorship or both. Civil Remedies Civil remedies include: • interim and final injunctions; • seizure; • withdrawal from the market; • destruction or removal of infringing copies; • publication of the decision; and • damages. Courts may impose penalties for non-compliance with injunctions. Blocking orders against infringing websites, including mirror sites and related domain names, are available through courts and through AGCOM procedures. Damages may cover pecuniary and non-pecuniary loss. Where precise proof is difficult, courts may use a reasonable royalty criterion, and may also consider the infringer’s profits. Damage is not presumed: the claimant must prove the existence of harm and pro- vide a basis for quantification. Criminal Remedies Criminal sanctions are available for several copyright offences, especially unauthorised reproduction, distri- bution or commercial exploitation for profit, software and database piracy, and circumvention of techno- logical protection measures. Sanctions may include fines and imprisonment, depending on the offence. 3.8 Infringement Tests and Substantiality Courts assess substantial copying by asking whether the later work reproduces the original work’s creative
expression in a way that is recognisable and quali- tatively significant. The analysis is qualitative rather than purely quantitative: copying a small portion may be infringing if that portion embodies original creative choices. Non-literal copying may be actionable where the later work appropriates the individualising creative core of the earlier work, even through re-elaboration. Italian case law refers in this context to evolutionary plagia- rism, where the second work departs from the first but does not create an autonomous expressive meaning. There is no infringement where only ideas, themes, styles, methods or general concepts are taken, or where the later work creates a genuine semantic gap and autonomous expressive result. For software, protection covers the expression of the program, including source code and object code and, in certain circumstances, original structure or organi- sation. Ideas, algorithms and principles underlying the program are not protected as such. 3.9 Collective Management and Licensing Collecting societies and independent management entities grant licences, collect remuneration and distribute royalties on behalf of rights holders. SIAE remains the best-known collecting society, but the sector has been liberalised and independent manage- ment entities may also operate under the framework implementing Directive 2014/26/EU. Tariffs are not generally fixed by statute in a single uni- form way. Remuneration is determined by reference to the type and economic value of the use, the rep- ertoire involved and the applicable licensing scheme. AGCOM has supervisory powers in relation to collec- tive management compliance and transparency. Certain uses are subject to statutory remuneration or compulsory management mechanisms, depending on the category of work and use, such as private copy- ing levies and specific broadcasting or retransmission contexts. Disputes over royalties, tariffs or distribution may be resolved before the ordinary courts. In some are-
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