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09 October 2017
With developments in three-dimensional printing allowing for the manufacture of building components, the protection of industrial designs and architecture has become of crucial importance for architects, designers and buyers – both private and public.
Copyright must be considered first in this regard. As regards industrial designs, copyright protection in Italy covers only creations of 'artistic value' (ie, works of the highest quality that are considered masterpieces of design by critics or exhibited in museums).(1) However, copyright protection of architectural works is not subject to this limit and requires only the prerequisite of creativity. In both cases, it is worth considering that this protection also concerns the reproduction of work that the author has the right to prohibit or authorise.
This is clearly a relevant source of potential income, even in the field of architecture. For example, contemporary architecture is often used as a background in advertising to ennoble the advertised products, enabling advertisers to exploit – unduly, if it happens without authorisation – the rights holder's intellectual property.
A second important issue considered by Italian legal scholars in this regard is the reproduction of variants of architectural works or designs. If the reproduced work is protected by copyright (which is likely, as copyright protection lasts for 70 years after the author's death), the exclusive right reserved by its owner also includes elaborations thereof (ie, variants which conserve the expressive elements of the original work). This is the case even if these elaborations amount to creative works and therefore deserve copyright protection, but only as derived works whose exploitation requires the copyright holder's authorisation. However, drawing inspiration from pre-existing architectural works in order to create new ones which merely recall the style of the former is permitted.(2)
However, the category of derived works does not exist for registered designs (an unregistered EU design can be protected for only three years, although the effects of the registration, if renewed every five years, can last 25 years). Further, protection exists for industrial designs that have individual character, but no artistic value. By definition, the protection of registered or unregistered designs does not fall within the scope of exclusivity attributed to previous works, as the same criterion used to determine whether a work is protectable is also used to determine whether it violates the rights of others.
This criterion is always that of general impression: if a new work produces a general impression which is different from that generated by pre-existing works, it is considered to warrant protection and is excluded from the scope of protection of such earlier works. However, a visible difference, which is capable of affecting the dominant characteristics of the design, is required. Therefore, the mere adoption of a new technique can give rise to a new protected work only if it has significant aesthetic resonance.(3)
A third major issue regarding the protection of designs and architecture concerns authors' moral rights, which is particularly important for the so-called 'right to the integrity' of architectural works. This is a controversial issue, as Article 20 of the Copyright Law prohibits any changes to protected work that could be detrimental to the author's honour and reputation, which essentially means his or her artistic reputation.(4)
This subject – which resulted in a wide-ranging debate of case law and whose echo was felt outside the legal environment, particularly with regard to the interruption of films broadcast on television by advertising – is suited to the wide discretion of the court to which the question is submitted. Further, under Article 20(2) of the Copyright Law (with particular reference to architectural works), buyers are entitled to make the 'necessary' changes, meaning those imposed by technical, legal and – at least according to case law – economic needs.(5)
Article 22(2) of the Copyright Law states that "the author who has known and accepted the modifications of his or her own work is no longer allowed to act in order to prevent execution or to ask for suppression". However, this rule has been understood to be based on the author's implicit recognition that the approved amendments will not damage his or her honour and reputation, which could justify the conclusion that changes of this kind cannot be regarded as detrimental and are thus prohibited.
Disregarding the latter case, under Italian law, authors can oppose changes to architectural works which distort the original design. This is a right on which it is important to reflect, as it may, within certain limits, also involve the public authorities in order to safeguard the architectural quality of Italy's towns and cities.
For further information on this topic please contact Cesare Galli at IP Law Galli by telephone (+39 02 5412 3094) or email (firstname.lastname@example.org). The IP Law Galli website can be accessed at www.iplawgalli.it.
(3) See the Court of Milan decision of August 30 2007, which dismissed requests for an interim injunction and seizure order against a well-known Italian tap manufacturer. The court admitted the opponent's argument, stating that infringement of a model is ruled out when the allegedly infringing product does not copy the features with which the general impression given by the protected model is principally associated, which represents "the prevailing characterising visual feature".
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