IPRED Directive Implementation in Italy

(Dieser Artikel ist auch in deutscher Sprache verfügbar)

By Legislative Decree no.140 of 16 March 2006, with more than one
month before the deadline, Italy implemented Directive 2004/48/EC on the
enforcement of intellectual property rights (IPRED) by amending law
no.633/1941, which has already been the subject of so many modifications
since its inception that several parties are calling for its complete
re-drafting.

The most notable modifications to the Italian copyright law include the
presumption of ownership of the neighbouring rights, as it was already
the case for author’s rights; the possibility for collective and
“representative” organizations to independently promote judicial actions in
order to defend their members’ rights; the possibility to ask judges to
inhibit activities, including those by intermediaries, that can be construed
as an infringement of authors’ or neighbouring rights; the possibility for
judges in the case of infringement “on a commercial scale”- on request of
the interested party – to order banking, financial and other commercial data
to be produced by the counterpart; a more detailed procedure to calculate
damages.

Some of the modifications were not so relevant, as the Italian judges have
already applied the same principles as a matter of custom and practice. For
example the Italian criminal procedures already contained norms that allow a
judge to apply a sanction in case a party delays of fails to put a writ in
practice. Or the so-called “right of information”, by which a judge can
request third parties to produce relevant information they might have with
regards to an infringement.

The Italian implementation of IPRED has been severely criticized, among
others by Andrea Monti of ALCEI (Associazione per la Liberta` nella
Comunicazione Elettronica Interattiva – EDRi-member). In an article
published on the Italian journal “InterLex”, Monti considered that the
Legislative Decree is too vague in its key parts – including the definition
of what is an “intermediary” and the type of evidences that must be produced
in order for a judicial injunction to be issued.

Text of Legislative Decree no. 140/16 March 2006 (only in Italian,
16.03.2006)
http://www.gazzettaufficiale.it/guri/attocompleto?dataGazzetta=2006-04-07&redazione=006G0161&service=0&ConNote=2
http://www.camera.it/parlam/leggi/deleghe/testi/06140dl.htm

Andrea Monti, Copyright – a “particular” and “concrete” law (only in
Italian, 23.02.2006)
http://www.interlex.it/copyright/amonti84.htm

Explanatory report on the Italian implementation of IPRED (only in Italian)
http://www.interlex.it/testi/pdf/rec482004.pdf

EDRI-gram: New Italian IT legislation limits civil rights (1.03.2006)
http://www.edri.org/edrigram/number4.4/italianlaws

(Contribution by Andrea Glorioso, consultant on digital policies – Italy)
(Thanks to Ms. De Angelis – DDA Law Firm)