ITALY Trends and Developments Contributed by: Pier Luigi Roncaglia, Francesco Rossi, Riccardo Perotti and Noemi Parrotta, Spheriens
there is a contrast with the jurisprudence of the Supreme Court, which instead requires an addi - tional element (a quid pluris) consisting in the artistic value of the work”. The possible impact of the recent EU Design Reform If the 2024 decision of the Italian Supreme Court just mentioned above seems to signal an (inci - dental, but significant) acknowledgement of case law on the incompatibility of the “artistic value” requirement with EU law, the recent Directive (EU) 2024/2823 and Regulation (EU) 2024/2822, issued in November 2024, may deliver a defini - tive blow in affirming this position. The new Directive amended Article 17 of the old Directive, which, as noted above, expressly granted member states the freedom to deter - mine the extent to which, and the conditions
under which, copyright protection is conferred on works of industrial design, including the required level of originality. This explicit attribu - tion of discretion is no longer present. Instead, Directive (EU) 2024/2823 (see Article 23) simply states that “a design protected by a design right registered in or in respect of a Member State… shall also be eligible for protection by copy - right… provided that the requirements of copy - right are met”. Article 96 of Regulation 6/2001 has also been modified accordingly by Regula - tion (EU) 2024/2822. These amendments seem to remove the primary legal basis that supported the argument that, despite the Cofemel ruling, the “artistic value” requirement could still be considered compatible with EU law. Whether this truly marks the end of the “endless story” outlined here remains to be seen, however.
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