What is copyright and for what kind of works it exists

Copyright concerns the protection of creative works with creative nature. Let’s examine what the first 4 articles of the law say.

What kind of works can be protected through copyright

Article 1, paragraph 1 of the Copyright Law of Italy (law 633/1941) provides for:

“The object of the author’s right is the work of intellect of creative character that belongs to the sciences, literature, music, figurative art, architecture, theatre and cinematography, no matter the style or form of expression”.

The right are acquired upon creation of the work as a particular expression of the intellectual effort, also minimal, and the protection of copyright is independent of any assessment on the artistic value of the work. The work protectable by the Copyright Law, however, must be new, in the sense that should not be a mere reproduction nor clearly evocative of an existing work; on the contrary, there could be the possibility of plagiarism.

It is important to specify that copyright does not protect the idea itself, but the way in which the idea is expressed, namely the shape of the work (principle of the works’ externalization).

List of the works protected by copyright

Article 2 of the Copyright Law specifies that:

“In particular, are included in the protection:

1. Literary, dramatic, scientific, religious works, whether in written and oral;
2. The works and musical compositions with or without words, dramatic music works and musical variations that themselves constitute original works;
3. Choreographic works and pantomimes, whose draft is fixed in writing or otherwise;
4. The works of sculpture, painting, art, drawings, engravings and similar figurative arts, including the scenic design;
5. The designs and works of architecture;
6. The works of cinema, silent or with sound, except in the case of simple documents protected under the provisions of the fifth chapter of the second title;
7. The phonographic works and those expressed with method similar to the photography with the exception of simple photograph, protected under the provisions of Chapter V of the title II;
8. Computer programs, in each form expressed as long as original as a result of the intellectual creation of the author. The ideas and principles which are basis of any element of a program, including those which are basis of its interface, are excluded from the protection granted by this law. The term program also includes preparatory material for the planning of the program;
9. The databases listed in the second paragraph of article 1, interpreted as collections of works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic means or otherwise. The protection of databases does not include their contents and shall not affect rights existing in those contents;
10. The works of industrial design that are in themselves creative character and artistic value.”

The list of the abovementioned Article 2 is considered by the courts as well as by much of the doctrine as merely illustrative and not exhaustive.

Clarifications on article 2 of copyright law

The protection of Article 2, point 1) includes all the works expressed by means of the word, regardless of their content, which may be of a purely literaly (for example narratives or poetry collections), or have different content 8for example scientific, educational, informative). No doubt that works of journalism fall into this category.

As for the musical works referred to in Article 2, paragraph 2, the problem of plagiarism exists in this category more frequently than in others. In order to verify the existence of plagiarism it is necessary to consider the three factors which constitute musical works; melody, rhythm and harmony.

With regard to article 2, paragraph 7), only artistic photographs, with creative character, are protected by copyright, while simple photographs are protectable as a matter of related rights. Photographs of writings, document and similar are excluded from the protection of copyright.

Collective works and copyright

Article 3 of Law 633/1941 provides that:

“The collective works, formed by the assembling of works or part of works, which are autonomous creations in themselves, as a result of selection and coordination to a specific literaly, scientific, educational, religious, political or artistic purpose, such as encyclopedias, dictionaries, anthologies, magazines and newspapers, are protected as original works independently and without prejudice to any copyright in the work or part of works of which they are composed”.

Collective works, therefore, are the result of the contributions of more works – separable from one another – and are protected in their entirety and in autonomous way with respect to the individual contributions, which also have the protection of copyright, of course on condition that requirements for copyright rights are met (minimum degree of creativity, novelty, works’ externalization).

According to Article 7, paragraph 1 of the Copyright Law of Italy

“It is considered the author of the collective work who organizes and directs the creation of such work”.

Derivative works and copyright

Article 4 of Law 633/1941 provides that:

“Without prejudice to any rights of the original work, are protected creative elaboration of the original work, such as translations into another language, transformation into another literally or artistic form, modifications and additions which are a substantial remake of the original work, adaptations, arrangements, summaries, changes not constituting original work”.

Derivative works are works based upon one preexisting work, but, thanks to the original work of their author, are protected with copyright. The list of derivative works listed in Article 4 shall be interpreted as an example of the more frequent events.

Derivative work is protected “without prejudice to any rights subsisting in the original work” means that there is the need, for everyone needs to financially exploit the derivative work, to obtain the prior consent of the author of the original work, provided that exclusive economic rights on the original work are still alive. Consent is not required if the original work has become public domain.

According to Article 7, paragraph 2 of the Italian Copyright Law

“It is considered the author of the elaborations the subject who makes the elaborations, within the limits of his work”.