The Future of Copyright. In memory of Luigi Carlo Ubertazzi (Report 1/2)

Many, if not all, the readers of this blog will have sincere admiration for the academic world of intellectual property. It is a world of jurists who have a mixed practical-theoretical approach and a 'philosophical' attitude to legal matters. In this context, this GuestKat thought it might also please an international audience to read an account of the meeting held last week at the University of Milan in honour of Professor Luigi Carlo Ubertazzi. Prof. Ubertazzi was one of the leading intellectual property academics in Italy (as well as a great lawyer), founder and editor of the most important Italian copyright journal (AIDA) and editor and author of the most widely used Commentary on Italian intellectual property laws. The conference was attended by Italy's most authoritative professors who are experts in intellectual property and copyright law in particular, who gave a number of memories of Prof. Ubertazzi (the recollections were moving and also sometimes amusing, in line with his character), as well as some talks on some forthcoming scientific writings on IP.

The synthetic skills of this GuestKat unfortunately do not allow to summarize all the lectures by these eminent scholars, but a report of the discussions that were made, mainly in their chronological order, is still possible and maybe can provide some food for thoughts for our Kat readers (with many apologies for any oversimplification).

(An old woman tries to teach three children [and 2 cats…] the alphabet - 19th century. Cr: Wellcome Collection).)

Greetings to the audience and a first lengthy remembrance of Prof. Ubertazzi were first given by Prof. Michele Bertani, who recalled how the AIDA journal conference, held in early autumn every year, was the central moment for intellectual property scholars and practitioners to discuss copyright in Italy. In fact, one of Prof. Ubertazzi's main merits was to enable moments of encounter with scientific and cultural initiatives. Eminent Professors Davide Sarti and Vincenzo Di Cataldo then recalled the importance of Prof. Ubertazzi for the Italian IP movement (probably also European, as he studied and worked many years in Germany, cooperating with the Max Planck Institute).

Prof. Roberto Pardolesi gave a talk that focused on the antithesis between the two possible visions of copyright, one more inclined to see the works of art as a tradeable good, the other that mainly sees the protection of authorship as the main purpose of copyright. Prof. Pardolesi considered the difficult balancing between the concept of artistic works and, in general, of information (particularly cultural information) as a quasi-public good (theory of the commons), which must, however, be protected from the risks of free riding and misappropriation.

In this context, Prof. Pardolesi also recalled a fairly recent pronouncement of the Italian Supreme Court that dealt with the issue of the quotation exception, the case “Schifano” decision 4038/22, in which the Court was asked whether inserting the collection of an artist's works in a methodological study could fall under the quotation exception. The Court answered in the negative, finding specifically that the quotation exception only applies to partial reproductions of works, including in the visual arts, and relying on the principle of strict interpretation of exceptions (IPKat here; also reported here at page 110).

Prof. Giovanni Guglielmetti dealt with the subject of design protection under copyright law, starting from the well-known judgments Cofemel Case C-683/17 and Brompton Case C-833/18 (Katposts here and here).

Prof. Guglielmetti argued that, contrary to what was observed by some commentators in relation to these two decisions, after a better examination the direction may not necessarily be that of lowering the protection threshold. These two recent decisions do not change much of what the Court had already said in the Painer Case C-145/10 (IPKat here) back in 2011, especially as far as technical constraints are concerned. It is true, in fact, that the Court held that there is no requirement other than 'mere' originality (i.e., the author's own intellectual creation), but it did not actually take a position on what is specifically required for a design element to be protected by copyright. Therefore, given the margin of freedom is limited in the design field, the more difficult it is for there to be room for a copyrightable object.

There was also an interesting speech by the only speaker without an academic role, i.e. Mr. Paolo Lanteri, legal officer of WIPO, who emphasized that collaborations in the area of copyright between Italy (and also other European countries) and WIPO could be improved, especially considering the enormous weight of the creative sector and the value of our country's scientific community. Lanteri provided some interesting insights and information on what is happening at the multilateral level in the area of intellectual property. On the one hand, WIPO is dealing with AI, blockchain, and metaverse through a number of new initiatives (such conversations and white papers); on the other hand, the normative agenda is still focusing on long unresolved matters. Major trends that can be observed globally: (1) Process of extension and expansion of the application of copyright to areas beyond the traditional creative sector. (2) Diverging positions of various stakeholders and interest groups ; (3) political tensions, including war. He also pointed out that currently most IP relations between countries are governed by the principle of national treatment, WIPO treaties, Trips and also free trade agreements.

Turning to the so-called de lege ferenda issues, the WIPO officer reported that several issues related to the digital environment have entered the agenda and will be the subject of sessions in March 2023 (in particular on fair remuneration in the digital environment).

He went on to report on the imminent holding of two IP-related diplomatic conferences by 2024: the first on the Design Law Treaty (concerning registration procedures); the second where a potential treaty on genetic resources and related traditional knowledge will be discussed (the issues of disclosure and databases will be addressed, on these two conferences see also IPKat here). Lanteri was keen to point out that a diplomatic conference is no guarantee of action being taken, but also that it represents a shake-up of a stagnant state.

He noted that the fact that these are two disconnected subjects is the result of a political agreement. With regard to these conferences, Mr Lanteri related an interesting anecdote. The two conferences just mentioned were approved in a context where the traditional rule of consensus (i.e. something is approved until a country openly opposes) in multilateral negotiations was put under stress.

The diplomatic conferences were proposed by Africa, supported by developing countries and, eventually not opposed by “developed” countries, while in some cases expressing disappointment.

So these conferences were formally approved by consensus; however, soon before that, another proposal on “Assistance and Support for Ukraine’s Innovation and Creativity Sector and Intellectual Property System”, tabled by around 50 countries, had to eventually be adopted through a roll-call vote, rather than on the usual consensus basis.

Opening up the option of resorting to voting (rather than reaching consensus) might have a significant impact on the future developments in multilateral negotiations. These polarized debates display some of difficulties that are likely to characterize the negotiations during the upcoming diplomatic conferences.

(WIPO conference hall – picture by David Matthiessen)

Prof. Luca Nivarra of the University of Palermo delivered a lecture on the author's fair remuneration right, addressing in particular the civil law aspects of the Directive (EU) 2019/790 and of the Italian legislation that transposed Articles 18-20 of the Directive.

Prof. Nivarra emphasised how the European legislator intended to address the major problem, well known to operators in the sector, of a certain opacity in the economic evaluation of cultural assets.

He then analysed the nature of the right to renegotiation established by the Directive, recalling how Civil Law is familiar with numerous similar provisions, including for example: (a) abusive clauses in consumers’ laws, where information asymmetry is considered such an incurable disease as to provide for the relative nullity of the clauses; as well as (b) regulations in the banking and financial sectors where failure to comply with which results in the nullity of the clause or contract.

What therefore emerges in the case of copyright is that information is a primary element even if no nullity is determined for a first assignment of the rights on the work of art that possibly takes place without a sufficient remuneration. Rather, it is a right whose non-observance may give rise to recourse to a guarantor or judicial authority, i.e. a kind of arbitration.