The Italian Court of Cassation recently set forth principles to be followed in the matter of proof of pecuniary and non-pecuniary damages resulting from copyright infringement. In particular, it ruled on a decision of Genoa’s Court of Appeal concerning the infringement of copyright on the exhibition of paintings and sculptures «Italian journey. A magical procession from the sixteenth to the twentieth century», which took place in Genoa, at Palazzo Ducale, in 2011.

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The Court of Appeal’s decision, confirming in part the first instance decision, had condemned RAI SAT S.p.A. to pay the non-pecuniary damages suffered by the authors due to the broadcast, without their consent and without any compensation, of a television report on the exhibition that was found to be not merely informative – as opposite to statements made by RAI SAT – and not respectful of the contents of the exhibition, this infringing the copyright on the latter. In particular, it was considered as infringing the authors’ moral rights of paternity and to the integrity of the exposition. On the other hand, with regard to the authors’ economic rights, the Court of Appeal had instead overturned the first instance decision, excluding compensation for pecuniary damages due to a lack of evidence on the part of the authors.

Both authors, principally, and RAI SAT, in the cross-appeal, appealed the judgment at issue in front of the Court of Cassation.

The authors, inter alia, requested the Supreme Court to quash the contested decision insofar as it had excluded compensation for pecuniary damages, asking the Judges the following question: “if, in order to prove the existence of pecuniary damages resulting from the unauthorised commercial exploitation of a creative work (…) it is sufficient to prove: that the commercial exploitation has been put in place; that such exploitation occurred without the consent of the authors and that the latter have not received any compensation for such exploitation”.

RAI SAT, on its part, complained that, in the appealed decision, the non-pecuniary damages assessed by the Court had been proven by the authors only in general terms: there was allegedly no specific indication of facts, derived events, disorders or other. For this reason, RAI SAT asked the Judges “whether or not it is allowed for the Court of Appeal to assess and quantify non-pecuniary damages when the only reference to the proceedings, moreover denied by the Court of First Instance, is the reference to a general “mind disturbance”.

With regard to the authors’ claims, the Supreme Court answered by re-stating the principle – already established in 2001 – “according to which, in the matter of copyright protection, the violation of an exclusive right constitutes in itself the damage; thus, for the exclusive right holder there is no burden of proof other than that relating to the extension of such damage”. Consequently “with regard to the proof of the damages extension, the normal rules must be applied, which provide even their liquidation on an equitable basis”. In light of this, the Court decided to grant the authors’ arguments.

However, the plea proposed by RAI SAT was considered unfounded. The Supreme Court pointed out that in the case at issue “the damages (come) from the personal nature of the copyright  infringed”; the proof of non-pecuniary damages is therefore “a logical and legal solution strictly dependent on and consequential to the evidence already provided in the determination of the existence of pecuniary damages resulting from the copyright infringement”.

In light of the above, the Court quashed the appealed decision in part, insofar as it had unlawfully excluded the compensation for pecuniary damages resulting from the unauthorised commercial exploitation of the exposition contents. Thus, it ordered the referral of the dispute to the Court of Appeal in order for the latter to assess the damages suffered by the authors.