Copyright infringement and remediesInfringing acts
What constitutes copyright infringement?
The general rule is that any unauthorised use of protected works by a third party constitutes copyright infringement.
Law No. 633 of 22 April 1941 (the Copyright Act) provides the following exceptions:
- the making of a copy of a volume or of a work or article for private use (article 68);
- the reproduction or communication to the public of articles concerning arguments of an economic, political or religious nature, provided that the name of the author, the source and the date of publication are specified and the reproduction and/or communication has not been expressly reserved (article 65); and
- the reproduction and communication of summaries or quotations of works, provided that they are carried out for criticism or discussion purposes or for teaching or scientific research purposes, and that such use is not for commercial purposes (article 70).
Does secondary liability exist for indirect copyright infringement? What actions incur such liability?
Under Italian law there is no distinction between primary or secondary infringement or liability. The general rule is that any unauthorised use of a protected work falls under copyright infringement and any user engaging in such an act is liable for infringement. As to contributory liability, article 156 of the Copyright Act specifically provides for the liability of intermediaries (such as internet service providers) whose services are used for the purpose of infringing a protected work.Available remedies
What remedies are available against a copyright infringer?
The main remedy under Italian copyright law is a permanent injunction against the infringer (article 156 of the Copyright Act). Other available remedies are:
- delivery up or destruction of the infringing products or materials (article 158);
- seizure or description of infringing products or materials (article 161);
- withdrawal or recall of the infringing goods from the market (article 158); and
- publication of the decision in the press or on the internet (article 166).
Is there a time limit for seeking remedies?
Under Italian law, it is possible to enforce rights within the general duration of the single copyright. That said, for seeking remedies such as an interim injunction or seizure, Italian case law requires the existence of periculum in mora, which means that the applicant will suffer serious and irreparable damage if the infringement is not immediately stopped.Monetary damages
Are monetary damages available for copyright infringement?
According to article 158 of the Copyright Act, monetary damages are granted to the copyright holder. The award of damages can be calculated by the court based on the infringer’s profit or on the ‘cost of consent’, or both. The cost of consent is a virtual royalty that would have been applied if the infringer had obtained a regular licence.
Moreover, if an injunction is ordered, the court can also provide for a penalty to be paid for further infringements carried out in violation of the order.
In terms of recovering damages, according to article 2947 of the Italian Civil Code, a claimant can only recover damages for the five years preceding the beginning of the action.Attorneys’ fees and costs
Can attorneys’ fees and costs be claimed in an action for copyright infringement?
Yes, attorneys’ fees and costs can be claimed. The general principle is that the losing party bears the costs of the action as well as attorneys’ fees (article 91 of the Italian Code of Civil Procedure).Criminal enforcement
Are there criminal copyright provisions? What are they?
Specific cases where the copyright infringement constitutes a crime under Italian criminal law provisions include the following.
- The wilful reproduction, transcription, offer for sale, performance, broadcast communication to the public or distribution of a third party’s work without consent, or publishing online a copyrighted work, is punishable with a fine. If the infringing acts concern a work not intended for publication, or they constitute infringement of the author’s right of paternity or of integrity of the work, the punishment may include imprisonment (article 171 of the Copyright Act).
- The unlawful reproduction, import or distribution in Italy of computer programs or databases for profitable purposes can be punished by imprisonment and a fine (article 171-bis).
- Reproduction, broadcasting or disseminating of a work intended for television or cinematographic distribution, or in cases of offering for sale or hire recordings of musical, cinematographic or audiovisual works, literary, dramatic, scientific, musical or multimedia works (article 171-ter), can be punished by imprisonment and a fine.
Are there any specific liabilities, remedies or defences for online copyright infringement?
According to Resolution No. 490/2018 of the Italian Communications Regulatory Authority (AGCOM), there is a particular procedure that can be used for removing copyright infringing material from the internet.
It is also possible to apply for an interim procedure before AGCOM, basing the claim on the existence of an infringement and the serious risk of irreparable damage where a decision is not immediately taken.Prevention measures
How may copyright infringement be prevented (including, for example, customs enforcement measures and any technological notable developments)?
According to Regulation (EU) No. 608/2013 concerning customs enforcement of intellectual property rights, customs authorities must suspend the release of an imported good if they suspect that it may infringe an intellectual property right, including copyright.
Law stated dateCorrect on
Give the date on which the information above is accurate.
13 May 2020.