By order of 30 April 2009 (case Flos SpA vs. Semeraro Home & Family SpA), the Court of Milan had referred to the European Court of Justice (ECJ) the question concerning the compliance of Article 239 Industrial Property Code (IPC) with Article 17 of Directive 98/71/EC, pursuant to which the scope of protection afforded by copyright and the conditions under which it is granted are determined by each Member State. The case was referred to the Advocate General, who presented his opinion on 24 June 2010. Advocate General’s opinion makes reference to Directive 93/98/EEC, providing that copyright protection lasts throughout the life of the author and until the end of the seventieth year after his death. In particular, Article 10(2) of said Directive provides that the term applies to all works and subject matter which are protected in at least one Member State on the date of entry into force of the Directive itself. According to the Advocate General, Article 17 of Directive 98/71/EC should be read in conjunction with the provisions of Directive 93/98 and, particularly, with Article 10(2). In the light of the foregoing, Advocate General seems to agree with a provision setting forth a reasonable transitional period allowing those who used to legitimately manufacture and market a product that imitates the shape of a model entered the public domain before the date of entry into force of the national implementation of Directive 98/71 can continue to do so. However, the ten-year period established by Article. 239 IPC is too long according to Advocate General who suggests a shorter term of five years. Advocate General’s opinion shows another step towards the compliance of Italy with Community law, so as to grant design works the same protection granted by other European Countries.

06/29/2010 | Copyright