ITALY Trends and Developments Contributed by: Pier Luigi Roncaglia, Francesco Rossi, Riccardo Perotti and Noemi Parrotta, Spheriens
rised as architectural and protected under Article 2.5 of the Italian Copyright Law, which does not require proof of “artistic value”. Consequently, the Supreme Court did not directly address the implications of Cofemel on the “artistic value” requirement under Article 2.10 of the Italian Cop - yright Law. Notably, the only explicit mention of “artistic value” in the decision is an incidental statement suggesting that, in principle, the indi - vidual elements of the cosmetics concept store could be protected as works of industrial design, “provided that they have an actual ‘artistic val - ue’”. As if Cofemel had no bearing on the issue. A similar lack of engagement with Cofemel is evident in several subsequent decisions specifi - cally concerning works of industrial design. In the Tecnica v Chiara Ferragni case (21 January 2021), which again addressed the copyright pro - tection of the iconic “Moon Boots”, the Court of Milan granted copyright protection based on the “artistic value” of the boots, assuming without question that “artistic value” remained a valid requirement for protecting works of industrial design. The same approach was followed in a deci - sion regarding a lamp designed by the seminal designers Achille and Piergiacomo Castiglioni. By a ruling of 15 February 2021, the Court of Milan recognised the “artistic value” of the lamp and granted copyright protection, once again without considering or discussing the potential impact of Cofemel on the case. Other decisions, however, have demonstrated, on the one hand, an awareness of the Cofemel ruling, but on the other hand, caution in drawing interpretative conclusions from it. For instance, by the decision of 19 April 2021, the Court of Milan stated that it considered it necessary “to
refer the matter to the Court of Justice to allow an express assessment of the compatibility of the national provision in Article 2.10 of the Italian Copyright Law with the EU legal framework” (it does not appear that the matter was ultimately referred to the Court of Justice). Similarly, in an order issued on 5 July 2021, the Court of Milan declared that it was “not yet in a position to draw definitive conclusions regarding the consequences that this ruling might have on the issue of the compatibility of the national pro - vision with EU law”. The court also observed that “domestic case law... can still guide interpreters in identifying the originality requirement, as indi - cated by the European Court, even though the criteria identified in such case law were originally developed to support the ‘artistic value’ require - ment”. In other decisions, case law has instead focused on the requirement of “creative character”, explicitly stating that it would “set aside the question of whether the additional requirement of artistic value still applies following the well- known Cofemel ruling by the EU Court of Jus - tice”. In this uncertain context, it is worth noting that, in a recent judgment (No 11413/2024), the Ital - ian Supreme Court observed – albeit inciden - tally, as the question was deemed irrelevant to the resolution of that case – that “regarding the reference to the artistic-creative value of the setup, it is true, as the appellant argues, that such a requirement is not mandated by the posi - tion of the CJEU. In the aforementioned 2019 judgment (Cofemel, ed.) – whose principles were reaffirmed in the subsequent ruling of June 11, 2020 (Brompton, ed.) – the CJEU considered the requirements of originality and individuality suf - ficient for copyright protection. In this regard,
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