ITALY Trends and Developments Contributed by: Pier Luigi Roncaglia, Francesco Rossi, Riccardo Perotti and Noemi Parrotta, Spheriens
greater, is reserved to subject matter that merits being classified as works”. The court, coming more specifically to the sub - ject of the first question, noted that since “the aesthetic effect that may be produced by a design is the product of an intrinsically subjec - tive sensation of beauty experienced by each individual who may look at that design”, this “subjective effect does not, in itself, permit a subject matter to be characterised as existing and identifiable with sufficient precision and objectivity” as required by the second condition of the definition of “work”. The court added that while it is true that “aes - thetic considerations play a part in creative activity”, nonetheless “the circumstance that a design may generate an aesthetic effect does not, in itself, make it possible to determine whether that design constitutes an intellectual creation reflecting the freedom of choice and personality of its author”, thereby meeting the originality requirement. The court then answered the first question by noting that EU copyright law must be interpreted as “precluding national legislation from confer - ring protection, under copyright, to designs such as the clothing designs at issue in the main pro - ceedings, on the ground that, over and above their practical purpose, they generate a specific, aesthetically significant visual effect”. Finally, the court held that, in light of the answer given to the first question, there was no need to answer the second question (which was the one that most directly touched on the Italian “artistic value” legislation). The sharpness with which the EU Court of Justice asserted in Cofemel – and later implicitly reiter -
ated in the Brompton decision – that all objects, including industrial design products, that meet the two conditions required to qualify as “works” must benefit from copyright protection, seems to leave little room for doubt. Although the Court of Justice ultimately avoided addressing the direct question, its reasoning strongly suggests that the imposition of an additional requirement, such as “artistic value”, is incompatible with EU law and should therefore be disregarded by national courts. In the aftermath of the Cofemel ruling, questions arose – both domestically and in foreign legal cir - cles, where the Italian rule making design copy - right protection conditional on “artistic value” is often seen as an anomaly within the European framework – about how Italian case law would respond. Would Italian courts recognise that the “artistic value” requirement had effectively been invalidated by the Court of Justice? If so, would this lead to a significant lowering of the threshold for design works to qualify for copy - right protection? Or would the courts, perhaps by emphasising the “originality” requirement and drawing on reasoning previously associated with “artistic value”, continue to apply a particularly rigorous selection criterion? In a nutshell, the debate revolved around whether this develop - ment would mark a genuine legal revolution or merely a subtle continuation of the status quo – a kind of legal “cat-and-mouse” game. As influential as the scholars’ opinions may be, the decisive words rest with the (Italian/ EU) courts. But those words have been far less straightforward than scholars had hoped. For instance, by decision No 8433/2020, con - cerning the layout of a cosmetics concept store, the Italian Supreme Court explicitly cited Cofe - mel. However, the case involved a work catego -
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