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First of all, it is useful to recall the text of the copyright regulations, which lists that original works belonging to the following categories are worthy of protection: literature, music, figurative arts, architecture, theater, and film, whatever their mode of expression is (art. 1, law 22 April 1841, n.633). Art. 2 of the same law adds that the following are particularly included in the protection: paintings, drawings, and similar works of the figurative arts (art.2, n.4, l.633/41), as well as photographs and those in a medium similar to photography provided that they are not works of plain (non-artistic) photography, which is protected under heading V of document II (art.2, n.7, L. 633/41, see below).

Art. 4 l.633/41 states a further important principle, however respecting the existing law regarding the original work, that declares that following are protected as well: creative elaborations of the original work, such as translations into another language, transformations from one into another mode of expression, modifications and additions that constitute a substantial remaking of the original work, adaptations, reductions, abridged versions, variations that do not qualify as original works.

The author has the exclusive right to publish a work, as wells as the exclusive right to commercially use the work in every way and manner (art. 12 l.633/41), to reproduce it (art. 13 l. 633/41), to distribute and to circulate it (art. 17 l. 633/41), to publish it as a body of works and to modify it (art. 18 l. 633/41), to rent it out and to lend it (art. 18-bis l. 633/41). The right for commercial use of the work is guaranteed for the entire life of the author and until the end of the seventieth calendar year after his death (art. 25 l.633/41, as modified by Law 6 febbraio 1996, n.52).

With the creation of the work, which is the particular expression of the intellectual work, the author acquires the original copyright (art. 6 l.633/41). Therefore, the owner of the copyright (which is twofold: moral and economic) is always the creator of the work, from the moment of conception of the work. All the above stated principles thus apply to images, illustrations, and graphic works, which are expressions of the art of drawing or the figurative arts, as well as for photographs that are considered artistic works (see below). The mere creation of the work immediately activates the legal protection of the same work (images, drawings, photographs). Instead, it is not necessary to register, document or to deposit the work, which, however, may serve as ulterior proof for the ownership of the work and for the date of its creation.

Referring to graphic material (excluding photographs) on websites, a case that specifically concerns us, it is necessary to reiterate that it belongs exclusively to its author (or to the subject other than the author that holds the rights for economic utilization by contract) and that its reproduction (copies, modifications, elaborations, distribution) therefore is prohibited, except when explicitly authorized by the same author. The material does neither have to be registered or deposited, nor does the website have to state warnings referring to copyright issues, nor does it matter if the usage is without a view to profit; the works are nonetheless protected, until the seventieth calendar year of the author?s death. Unauthorized usage of the graphic material belonging to others implements illicit conduct, perceivable under and subject to persecution from a civil, administrative, and also ? predictably ? penal point of view.

The protection that the regulation provides for the owner of the copyright is twofold. On the one hand, it guarantees the possibility to prohibit the illicit use of the work, and, on the other, to immediately claim damages (art. 156 e ss. of l.633/41.), in any case respecting the particular sanctions that apply in the circumstances of violation, which would have penal or administrative significance.

Rome, 22 October 2003
Dott. Andrea Totò

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