The question, if a workout program is protected by copyright, was submitted to the Court of Rome, which expressed a negative opinion (judgment n. 14972/2021, published on September 27, 2021).
It is not an obstacle that a workout program is not a typical work of art, as in the common sense a novel, a song, a movie or a sculpture are; this is not the point, because, if it is true that the Article 1,1) of the Italian Copyright Law (Law April 22, 29 1941 n. 633) provides that:
“The object of the author 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”.
We know that in the list there are non exhaustive examples of protected works and that the copyright can protect artistic expressions not explicitly included in such list.
The problem, in case, is the indispensable existence of the element of creativity, necessary to obtain the protection by copyright.
“is not constituted by the idea itself, but by the form of its expression, namely by its subjectivity, so that the same idea can be the basis of different works which are or can be different for the subjective creativity which each of the authors spends”
(Cass. Civile, Sez. I, November 28 2011 n. 25173)
The legal concept of creativity to which copyright makes reference, therefore,
“does not coincide with that of creation, originality and absolute novelty, as it refers, on the contrary, to the personal and individual expression of an objectivity belonging to the categories listed, by way of example, in the article 1 of the aforementioned law”
(Cass. Civile, above mentioned).
The workout program at issue had been defined by its author as “sporty method, having the aim to strengthen the body and the soul through an indoor walk, by using electromechanical treadmills in addition to the help of images and emotional guides stimulated by the trainer”.
Nevertheless, from the investigations carried on during the proceeding, it does not seem that such workout program had been transposed in any expressive form, or more precisely, the only document that the Court deemed worthy of attention from this point of view was an informative leaflet in which, however, “none original text distributed to the public with the explanation and representation of the method was identified, but rather an information leaflet for advertising purposes”.
In the light of the foregoing, the Court of Rome states that
“a workout method cannot obtain protection as an “idea”, but only if this is extrinsectable, for example, in a text or in a video”.
The same principle was also expressed by the Court of Milan during the examination of another case (judgment n. 9423/2017) which, after reiterating that a workout method cannot obtain protection as such, ascertained the violation of the rights of economic use
“as the has transfused its own idea of sporty workout method, which the counterpart has in part slavishly copied on its website and inserted in documents spread to the public or transmitted to its clients”.
Nothing new, therefore, but the re-proposal of the cardinal principle of copyright: it is not the idea as such that is protected by copyright, but the form of its expression.
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