After considerable judicial and academic debate, the legislator appears to have taken heed of the manifest need for more extensive protection in Italy for fashion designs and works of industrial design.
As our readers may know, the Court of Cassation has always been reluctant to grant protection under copyright law to three-dimensional works of industrial design, failing to recognise them as having the element of "separability" or "splittability" (required of Art 2.4 of the Law of Copyright) between the significance of the design concerned as an artistic and aesthetic creation, and its nature of an industrial product. Now, this has always appeared particularly unfair to their designers, since copyright protection was readily granted for two-dimensional designs, as those for example reproduced on textiles, wallpapers, etc, provided of course that the design was both sufficiently original and creative.
Now, under the Law 23/12/96 no. 650 the abovementioned restrictive doctrine will finally be superseded by statute, as it is now explicitly confirmed that "copyright in industrial design works in included among rights conferred by Law 22 April 1941 no 633 (Art 1, para 58), as it had been requested in several bills along the years to the Italian Parliament.
The Government is now expected to issue the necessary regulations to enact and to co-ordinate the new legislation with the rest of the existing laws on intellectual property. Given the wide discretionary legislative power delegated to the Executive, several important problems still need to be resolved yet, such as whether the requirement of "separability" will be maintained under art. 2(4) of the Law of Copyright and whether or not the protection will be concurrent with that provided by the Law on Patents for Ornamental Designs (modelli ornamental).
In any event, the importance of this new legislation is obvious to businesses operating in sectors which rely heavily on industrial design; for example, the legal protection of industrial designs will no longer depend on an immediate application being made for a patent avoiding any prior disclosure, which would invalidate the patent; every original work of design which is sufficiently creative will be automatically protected since its very creation.
Moreover, the duration of copyright protection, which is granted for an indefinite period ending only after seventy years from the death of the author, confers an exclusive right which is likely in many cases to exceed the economic life of the products in question; so that the reform will slightly but interestingly erode the differences between the legal status of three-dimensional designs which confer an aesthetic quality to the product, and that of three-dimensional designs which serve to identify the product, producer or seller, currently protected by registration as a trade marks.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.