Dear Lawyer, my name is Andrea and I am a creator of web content, in particular of comics
digital. In the last year, thanks to the increase in internet use due to the pandemic, I have
started sharing many of my works on my blog and am very happy with the success that
They are having. However, many users have started resharing my creations on social media
networks, like Facebook or Instagram, omitting my name and so my works are getting
an uncontrolled diffusion, without being able to be traced back to me. These users have the right to
to do so or is their conduct in any way punishable? Or since my content is digital
and paperless can’t be protected?
Dear Mr. Andrea, as you correctly recognized, the lockdown period that has involved our country in recent times has led to an immeasurable increase in the use of the internet and, in particular, of social networks. However, very often users use these new generation platforms indiscriminately, without asking any questions about the legitimacy of their actions, almost as if they were inside a bubble, disconnected from reality, where their own conduct, albeit incorrect or inappropriate, no consequence follows.
Unfortunately, this is the result of the fact that technology is evolving at such a speed as to allow rapid and uncontrolled sharing of content on the web, making it potentially available to the whole world in a few seconds. The law, on the other hand, does not, despite itself, boast the same rapidity of evolution and therefore we are currently in a totally unbalanced situation, in which millions of users have at their disposal technologies designed ad hoc to disseminate content, while the legal rules remain calibrated on a predigital reality.
The individual social networks, therefore, have tried to intervene in the regulation of intellectual property online, setting guidelines to which the user must comply and which inform him about the risks related to the improper use of other people’s content. Usually the terms and conditions of use of these platforms provide that the service provider can remove the materials that infringe copyright, even placing the obligation on him in case of notification of a violation.
The common denominator of every social network, however, is the legislation – albeit dated and not fully fitting with the digitization in progress – which regulates the intellectual property sector, i.e. the law on copyright, n. 633/1941. It establishes that the author of a work acquires the rights of protection with the simple creation of the work itself, where this falls within the types of works contemplated. In this sense, there is no doubt that your “digital comics” fall within the parterre of protected works, as they are undoubtedly attributable to the categories of “figurative arts” (referred to in art. 1 of the copyright law) and of the “art of design” (referred to in art. 2 n. 3 of the law on copyright). The essential requirement is precisely that of the creative character, that is, the fact that the work is sufficiently new and original and not the simple reproduction of something already created by others or a mere listing of data.
And there is no doubt among the interpreters that copyright also applies to digital content disseminated via the internet and works for them with the same mechanisms (the fact, however, that the copying and dissemination of works on the internet is well easier and that sharing is one of the typical characteristics of this new means of communication, is unfortunately another matter).
From the analogical application of this legislation – which requires the express authorization of the author for a work to be disseminated – it follows that anyone is allowed to access the contents covered by intellectual property rights and share them on social networks, but it is not allowed to reproduce. and disseminate such content without the consent of the owner of the rights.
In fact, if you publish protected materials without authorization, by creating a hypertext link to them and / or by embedding them in a personal web page or by making them available to your contacts (on social networks, in particular, sharing can take place in a few moments with thousands of persons), you are directly responsible for the publication and it is very likely that such activity infringes copyright. This violation entails, for the injured party, the possibility of claiming the paternity of the work (“moral right”) and possibly opposing any modification of the same, but also the right to obtain the economic revenues resulting from the commercial exploitation of the work ( “Property law”).
The main way of protection for the owner of the copyright on a specific work is the judicial one. The art. 163 of the law n. 633/1941, in fact, provides that “the holder of a right of economic use can request that the injunction be ordered for any activity (…) that constitutes a violation of the right itself”, by means of the quickest form of precautionary protection.
In this way, the judge is called to inhibit the third party who improperly re-shares the digital content without acknowledging paternity from carrying out further exploitation actions of the work. Furthermore, paragraph 2 of the same rule establishes that, in the context of the injunction, the judge can “fix a sum due for any violation or non-compliance subsequently found or for any delay in the execution of the measure”, so as to strengthen the protection against the owner of the copyright.
However, in the last decade, an even more rapid form of protection has emerged, this time aimed at the protection of digital content: reporting to the Communications Guarantee Authority (Agcom). The interested party who believes that his copyright has been infringed must first of all, by filling in a specific form, submit a formal report to the authority, containing the request for the removal of the abusive digital content. To be protected by Agcom are the “digital works” that is the works, or parts of them, such as an audio piece, a film, a photograph, a drawing, a literary work, etc., as long as they are disseminated on the internet.
The procedure takes place exclusively online and the duration is rather short, from a minimum of 12 working days (in the case of a shortened procedure for serious injuries) to a maximum of 35 working days. Agcom usually carries out a preliminary screening of the admissibility and admissibility of the application and proceeds, at a later stage, to start the investigation, the outcome of which in the event of non-injury withheld, the application is rejected, while in the case of discovery of an offense, a communication is sent to the guilty party, in which he is ordered to delete the content. It is therefore a rather quick and streamlined procedure which has as its only – and understandable – limit the fact that it cannot be started where, between the same parties, a judicial case is already pending.
Having said all this, dear Mr. Andrea, I believe that your digital creations have every right to be protected on the basis of copyright law and I therefore invite you to use the form of protection that you deem most appropriate for your case, considering the peculiarity that the protection provided by Agcom guarantees digital contents such as yours. Good luck!
* Bernardini de Pace Law Firm