Even regulations have a heart -- Italian court on moral rights in legal texts

Giovanni Casucci

From fellow IPKat contributor Alberto Bellan comes a moving story about EVERYTHING that matters, ie copyright, love, and Italy (of course).

Here's what Alberto writes:

"Law students are usually told that one of the major differences between common law copyright and continental diritto d'autore [why not? Let’s use the Italian phrase] lies on a different threshold of originality. Under this approach, UK copyright would protect almost anything that comes out from a human's brow with a bit of sweat. By contrast, the French-derived systems would require a higher degree of creativity and would allow only true artistic works embedding the author's personality to get protection under their diritto d'autore regimes. While the Court of Justice of the European Union has been fully gradually harmonising those positions, an avant-garde decision of the Court of Venice has just acknowledged moral rights in a pretty-far-from-what-is-normally-considered-art text, ie an anti-counterfeiting regulation.

The claimant in that case was Mr Giovanni Casucci, a very-well known Italian IP lawyer and teacher leading the Bardhele Pagenberg practice in Italy. In 2003 Mr Casucci created an anti-counterfeiting service to be used during fairs as a quick and almost-free-of-charge alternative to judicial enforcement. That service, which he provided along with other professionals, was based on a set of rules (the ‘Regulation’) allowing exhibitors and third parties to obtain seizures, evidence acquisition and, in certain cases, the closure of stands hosting infringing products within a few hours. Companies attending the fairs where the Regulation was in force were bound to it and the orders of those who operated the service under a specific clause included in the relevant fair agreement.

(Almost) never for money,

always for love

In January 2011 Mr Casucci discovered that the Fiera di Vicenza, ahead of the Vicenza Oro T-Gold First exhibition, had started using his own Regulation without his permission. The Fiera di Vicenza had received the Regulation from another Italian colleague of Mr Casucci, who had been so kind to almost-entirely copy the Regulation's set of rules without its author's consent and, most importantly, without attribution. Mr Casucci brought proceedings against Fiera di Vicenza and that other lawyer, claiming moral rights infringement. Both defendants alleged, among other things, that the Regulation was just a set of provisions utterly devoid of creative and artistic character -- "originality", they said. As it did not reflect Mr Casucci's personality, the defendants argued, it would have not presented the minimum degree of originality provided by Italian law to access diritto d'autore protection.

The Court of Venice, though, strongly disagreed with the defendants. "In order to receive protection under moral rights provided by Italian Copyright Law", the Court said echoing the Court of Justice of the European Union in Infopaq and its progeny, it is just necessary for a work to be "the author’s own intellectual creation", meaning that, "the work must be 'creative' in the sense of new [new? Well, that’s a pretty free adaptation of the Infopaq language …] and original: it has to reflect the author’s personal and individual contribution as a result of a processing presenting a sufficient additional value as compared with the situation existing before the creation itself".

You do not need to be Giovanni Bellini to have your work protected by diritto d'autore in continental countries -- or, at least, in Venice: "the degree of originality and novelty can be modest (the creativity can’t be excluded just because the creation lies in simple ideas and notions)", the Court said, "and also a legal creation such as an anti-counterfeiting Regulation … can be protected under the Diritto D'Autore Law", the latter protecting all and any "work of sciences or art in general, also on consideration of the open and merely illustrative protectable works' list provided by Art 2, Italian Diritto D'Autore Law".

Isn't it pure poetry?

The Court also found that, in the case of Mr Casucci's Regulation, the work at hand was new and creative (read: "original") enough to access to the Diritto D'Autore protection, there being a bit of Mr Casucci's heart in it: "The Regulation does not appear to be a merely necessitated list of rules and procedures. Rather, it represents a specific expression of provisions designed to implement an anti-counterfeiting service within the scope designed by current laws in the IP field and according to Mr Casucci's professional experience in this field. As a result, the outcome is a series of personal, original, new and creative set of rules [deriving from] Mr Casucci's experience", whose originality also lies on "the way in which those provisions are organised and mixed within the author's own particular expression form".

Accordingly, the Court of Venice established that both Fiera di Verona and the lawyer who had copied Mr Casucci's Regulation had infringed his moral rights in the Regulation, and ordered the lawyer to pay a symbolic compensation to Mr Casucci and publish the decision on a number of Italian newspapers.

This decision is plenty of good news. Firstly, the Court of Venice's approach appears to faultlessly bring (or bring back) copyright to its own truly function: protecting people's literary works, whatever field of the human literature works belong to. Secondly, although some differences still exist between the two paradigms of copyright/diritto d'autore, those differences could be easier to overcome than many think – to be noted in view of a possible, proper European harmonisation not only through case law. Eventually, although lawyers' social perception might not be that good, it is with great relief that one learns that at least someone considers those within the legal profession as comparable to artists. I've always wanted to be a poet. I've almost made it.”