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The First Civil Section of the Italian Supreme Court has, with judgment no. 18037/2012, established that unpublished works are protected by copyright from the moment of their creation – insofar as they are literary works – and, for this reason alone, are worthy of protection, regardless of whether such works have been registered or not with the Italian Authors’ Society (SIAE) and of whether they have been circulated, with the result that the unauthorized copying thereof constitutes copyright infringement.

According to the Supreme Court judges, copyright – which is conferred on the rightholder when the work in question is created – consists in the literary or artistic creation per se (provided that the work in question possesses novelty and creativity).

The Court of Appeal had held that – in comparing the two works under examination (one of which had been published and the other not) – the contents, the language and style of the works under examination were extremely similar, which were the result of the author of the infringing work having seen – before drafting and publishing his work – the manuscript drafted by the author of the infringed work.

The author of the infringing work and the publisher which had published such work filed a notice of appeal before the Supreme Court.

The Supreme Court ruled that the purpose of Law 633 of 1941 (the Italian Copyright Law) is not that of protecting the holder of the economic rights of exploitation of the literary work – that is to say the publisher – in his quest to make a profit from the published work, but rather to protect the literary work as an expression of the author’s work.

The Italian Supreme Court established that, although the publication of a literary work eliminates any doubt whatsoever about the fact that the work exists and is protectable, this does not exclude at all the possibility that the copyright work may be protected before its publication, provided that such unpublished work is recognizably an expression of the author’s ideas (cfr., lastly, Italian Supreme Court, Judgment no.25173 del 28/11/2011, Ed. Srl c. C. G., in CED Cass., judgment no. 620652).

The Supreme Court judges ruled, therefore, that article 185 of Law no.633/1941 – which states that the law is applicable to all Italian and foreign copyright works wherever they are published for the first time in Italy – is a provision that does not exclude at all the fact that an unpublished work is protected by copyright (provided that it that can be qualified as a literary work).

The Supreme Court interpreted, therefore, the expression used by article 2575 of the Italian Civil Code (whatever is the manner and form in which it is expressed) as also referring to pre-existing intellectual property works since the publication thereof is not the pre-condition for the constitution of any copyright work, which is constituted when the work is created.

The unpublished, therefore, cannot be considered incomplete in the sense indicated by the Italian Copyright Law but is, on the other hand, protected by such work in the event that there exists the creative character thereof and the author is capable of providing evidence of the fact that the work was published beforehand.

The aforementioned judgment is the first precedent on this topic and concludes the lively debate which has taken place between legal scholars about the requisite of objective novelty which has seen, on the one hand, the opinion being expressed that only published works are enforceable against third parties and, on the other hand, the opinion that any work whatsoever that has been created may be enforced against third parties (with the result that works that are similar to already pre-existing works are not considered objectively protectable under the copyright Law No. 633 of 1941).

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