Intellectual Property, Copyright; Creative act, Protection of intellectual property, Court of Florence 19 May 2023
Art. 1 LDA and art. 2575 c.c.
The copyright law does not ensure the protection of simple ideas, information, opinions and theories expressed in the work (as also clarified in art. 9, paragraph 2 of the TRIPS Agreement, in art. 2, n. 8 L. n. 633/41 and in DCE nos. 1991/250 and 1996/9, respectively on the subject of computer programs and databases), but only to the related expressive forms, i.e. to their external concretization, understood as representation in the external world of a content of ideas, facts, sensations, reasoning, feelings, so that the intellectual work is protected only as an expression, clear and concrete sign of the author’s creativity, while the use of the topic or of the teaching expressed in the work itself: this in the name of criteria of reasonableness, since an exclusivity so broad as to even embrace the ideas – even if original – of the author or the contents of the work would be detrimental to the progress of the arts and sciences.
And if it is true, on the one hand, that the personal vision, which gives rise to the work of creative intelligence in the aforementioned sense, manifests itself not only in the so-called external form with which the work is expressed, i.e. in the expression in which the work is presented to the subjects who intend to enjoy it, but also in the so-called internal form, identifiable with the structure of the work, or with that fundamental nucleus that constitutes its creative originality, which – as such – cannot be freely appropriated by third parties; on the other hand, it must be reiterated that, for the purpose of configuring an intellectual work, a complete, determined and identifiable external form is still required, in which the work itself materializes and can therefore be perceived as such externally , without otherwise even posing the problem of its perception as the fruit of the creative activity of a specific author.
In other words, therefore, an intellectual work receives protection from time to time insofar as a creative act, albeit minimal, is found in it, susceptible to manifestation in the external world, regardless of its published or unpublished character, provided, however, the requirements of concreteness of expression exist, and, therefore, a form as such recognizable and attributable to the author – as can be seen, first of all, from reading the closing clause of the art. 1 LDA (“in any form of expression”) and art. 2575 of the Civil Code, both presupposing the existence of a tangible and perceivable expression of the work.
Source: Business Law
Tiziana Bonanni
