ITALY Trends and Developments Contributed by: Pier Luigi Roncaglia, Francesco Rossi, Riccardo Perotti and Noemi Parrotta, Spheriens
Copyright Protection for Industrial Design in Italy: An Endless Story The issue of protecting design products stands at the crossroads of multiple legal rights, spark - ing some of the most dynamic and lively dis - cussions about the (partially overlapping) legal mechanisms available for their protection. Copy - right protection, in particular, has proven to be a challenging tool, given Italy’s long-standing cautious stance on extending such protection to products of industrial design. However, the landscape is evolving and is likely to shift further in the near future. An overview of these develop - ments follows below. The beginning: from the “denied” protection to the “artistic value” requirement and its “objective” interpretation in case law Before the implementation of Directive 98/71/EC on the legal protection of designs, Italy explicitly prohibited the cumulation of design rights (then referred to as “ornamental models”) and copy - right protection. Furthermore, copyright protec - tion was subject to the so-called inscindibilità (“separability”) requirement, which essentially stipulated that works of industrial design could only be protected if their “artistic value” was “separable from the industrial character of the product with which they are associated”. “Separability” was a stringent requirement, and Italian case law applied it in the strictest possible manner. The courts held that only two-dimen - sional designs applied to three-dimensional objects could meet the “separability” criterion and thus qualify for copyright protection. In con - trast, three-dimensional works were deemed inherently incapable of satisfying this require - ment. An emblematic example of this orthodox approach was the 1994 ruling by the Italian Supreme Court (ruling No 10516/1994) which denied copyright protection to Le Corbusier’s
chaise longue, one of the most iconic pieces of industrial design from the 20th century. Things changed radically in 2001, when the Ital - ian legislator – tasked with implementing Direc - tive 98/71/EC on the legal protection of designs – undertook a comprehensive reform of the matter. As a result, not only was the cumula - tion of copyright protection and design protec - tion allowed (as was the cumulation of design protection and trade mark protection, which had been consistently denied by case law and legal scholars), but the controversial “separabil - ity” criterion was replaced by the “artistic value” requirement. This remains the relevant legal framework, primarily defined by Article 2.10 of the Italian Copyright Law, which states that only works of industrial design having both inherent “creative character” and “artistic value” are eligible for copyright protection. As the general condition for copyright protection of intellectual works, the requirement of “crea - tive character” has been (and was already at the time) the subject of well-established case law, according to which the condition is satisfied if the work constitutes the author’s own intellectual creation, thereby setting a relatively low thresh - old for protection. Not surprisingly, therefore, it is the interpretation of the novel “artistic value” requirement that has sparked (and continues to spark) debate over the scope of copyright pro - tection for design in Italy. Scholars and judges seem to agree that this requirement was intended to reserve copyright protection for design works distinguished by a pronounced aesthetic or artistic value – essen - tially, those at the so-called “high end” of indus - trial design products. This reflects a deliberate
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