1. Background.

The purpose of this text is to clarify the confusion of regulations on the illicit conduct of plagiarism and counterfeiting, which are represented by the legislator in a totally disharmonious manner, causing numerous interpretative uncertainties, crossing the delicate intersection between copyright and criminal law and paying particular attention to the concrete legal protection of operators in the artistic sector.

2. Definitions.

Intellectual works, including works of art, must be distinguished in legal terms both from a personal and an economic point of view. On the one hand, as personal goods, they give the author a series of moral rights such as, for example, the right to the paternity of the work, i.e. the right to claim himself as the author of the work; the right to the integrity of the work, which is equivalent to the right to oppose any modification and/or deformation of the work that may damage the reputation of its author; the right to withdraw the work from the market. On the other hand, as an economic asset, the creation of the work gives rise to the right to its economic exploitation, which can take the form, for example, of the right of publication or reproduction, and lasts up to 70 years from the death of the author (or of the co-author in case of execution of the work by more than one person).

This distinction allows us to differentiate, in turn, between the respective possible infringements.

Plagiarism occurs when there is an illegitimate appropriation of the authorship of the work and its creative elements; in this case there is a violation of both the moral right of the author and the right of economic use.

There is counterfeiting when the violation consists in the illicit exploitation of only the economic rights of the author, respecting the right of paternity of the work.

Finally, we talk about plagiarism-counterfeiting when the work is illegally reproduced and attributed to a subject different from its author.

The conduct of plagiarism (from the Latin plagium: theft, kidnapping) can take place through the total or partial reproduction of the original work, or through its reworking without creativity or, in any case, usurping the authorship through purely formal changes.

The conduct of counterfeiting consists, on the other hand, in the activity of producing a totally false work of art. The same definition is "blurred" in the concept of mere alteration, which can be defined as the change of an original work of art, in a non-compliant sense or however extraneous to the author's will, and in the concept of reproduction, which can be considered trivially as the activity of copying an original work in order to put it on the market as authentic.

3. Civil remedies.

If an author believes that he has been the victim of plagiarism, there are many initiatives that can be taken to protect his rights.

In the first instance the injured party should preferably take the extra-judicial route and, if this should prove to be unsuccessful, he can invoke the remedies foreseen by the Law on Copyright. The owner of a copyright can, in fact, take legal action to ascertain the ownership of his right and stop the continuation of the violation (action of ascertainment), or to remove the state of affairs that damages his rights (action of inhibition) or, finally, to obtain compensation for the damages suffered. Both pecuniary and non-pecuniary damages are compensable, as are damages arising and loss of profit. Therefore the judge will have to rely on the classic principles dictated by the Civil Code, being able to settle the damages as a lump sum on the basis, at least, of the amount that would have been paid to the author by the damaging party if the latter had lawfully obtained the authorisation to use such rights.

Art. 163 of the Copyright Law also provides for an injunction as a precautionary measure, aimed at preventing irreparable damage from occurring due to the length of the procedure. The owner of a right of economic use can, in fact, ask for an injunction of any activity which constitutes an infringement of the right itself according to the rules on precautionary proceedings provided for by the code of civil procedure. By pronouncing the injunction, the judge can also fix a sum due for any violation or non-compliance subsequently ascertained or for any delay in the execution of the measure (art. 163, second paragraph, Copyright Law).

From a procedural point of view, the author who intends to claim his rights has the burden of proving the paternity relationship which binds him to the disputed work; the simplest way can be to provide pre-established evidence such as, for example, providing a certain date to the work, which demonstrates with temporal precision that it was created by the interested party at a certain time.

The action to defend the authorship of the work as per art. 169 of the Copyright Law, however, has limitations, as the sanction of removal and destruction can be applied only if the infringement cannot be conveniently repaired by means of additions or deletions to the work itself. The function of the provision is to guarantee the author's right to authorship of his work with the least possible prejudice to the circulation of the same and to the interests of third parties. This provision has a direct and effective application with regard to the publishing sector, even if it can be applied in other fields where the repair of the violation by means of "additions or suppressions" to the work is concretely applicable. For example, in the event of usurpation of the paternity of a work of pictorial art, which may consist in the affixing of a false signature on a painting, the obligation to affix on the back of the same in an indelible manner a certification of the non-authenticity of the work may be required, even if often - in the case at hand - the judges tend to favour the destruction of the painting in question.

Also with regard to the action aimed at defending the rights of integrity of the work, the same can lead to the removal or destruction of the same only when it is not possible to restore it in its primitive form, at the expense of the party interested in avoiding the removal or destruction (art. 170 Copyright Law). With the term "restore", also in this case, the legislator has turned its attention to restoring the situation prior to the violation, trying to limit the sanction of destruction.

As regards the limitation period for taking the above actions, the ordinary five-year period is provided.

At the conclusion of the judgement the judge may, finally, order that the operative part of the judgement be published in one or more newspapers at the expense of the losing party.

4. Criminal implications of plagiarism and counterfeiting of works of art.

Having clarified the meaning of the different illicit conducts of plagiarism and counterfeiting of works of art, as well as the various civil law means to protect the author, we can proceed to an in-depth examination of the related criminal responsibilities.

If an event of plagiarism occurs, the law protects the author, not only from a civil but also from a criminal point of view, although the conduct of plagiarism is only an aggravating circumstance of the crime of counterfeiting (art. 171, paragraph 3, Copyright Law), and not an autonomous crime in itself. In fact, after the list of 6 sub-categories of offences set out in the first paragraph of the same article, in the third paragraph the penalty envisaged for the same offences is aggravated if they are committed by usurping the authorship of the work, or by deforming, mutilating or otherwise modifying it, thereby offending the honour and reputation of the author.

As regards the various criminal hypotheses of counterfeiting of works of art, it is the Code of Cultural Assets which, in Article 178, sets out the various criminal cases. The regulation punishes with imprisonment from three months to four years and a fine from 103 euro to 3099 euro:

a) the counterfeiting, alteration, reproduction, in order to gain profit, of works of painting, sculpture or graphics, or objects of antiquity or of historical or archaeological interest;

b) the placing on the market, the possession for commercial purposes, the introduction for commercial purposes into the territory of the State, the putting into circulation as authentic works of painting, sculpture, graphics or objects of antiquity, or objects of historical or archaeological interest that have been counterfeited, altered or reproduced;

(c) the authentication of the above works and objects, knowing them to be false;

(d) the accreditation or contribution to the accreditation as authentic of the aforementioned works and objects by other declarations, appraisals, publications, affixing of stamps or labels or by any other means, knowing them to be false.

The asset protected by the regulation in question is any work of painting, sculpture or graphics, as well as other objects of antiquity and historical or archaeological interest. Well, it is necessary to highlight the divergence between the provisions of this penal provision, aimed at protecting the correctness of commercial exchanges in the world of art, cultural heritage and public faith, and the provisions of copyright which, instead, protect all intellectual works and their author from a moral and economic point of view.

With regard to the first sanctioned conduct in point a), it must be observed that the normative datum does not help the interpreter - as often happens in this sector - so much so that article 178 of the Code of Cultural Heritage and Landscape does not define the individual concepts of "counterfeiting, alteration and reproduction", but limits itself to generically referring to the conduct, with a consequent violation of the fundamental principles of taxability and determination of the criminal regulations. One wonders, for example, what is the discrimen between a lawful reproduction and another one that is criminally relevant. In this regard, the Supreme Court of Cassation provides useful clarifications for the interpretation of the rule: "thereproduction must be understood as the activity of copying the work in such a way that the copy can be confused with the original". Therefore, the reproduction of a copy that does not create confusion with the original does not harm the protected good of the public faith and, consequently, must be considered devoid of criminal relevance. Also devoid of criminal relevance is the conduct of reproduction through original matrixes carried out by those who are legitimated to do so, such as, for example, the reproduction of bronze sculpture specimens.

Moreover, it is worth mentioning a peaceful jurisprudential orientation that excludes criminal relevance in the case in which there are gross and macroscopic counterfeits such as not to make even an individual unaware of any artistic knowledge or preparation fall into error.

With regard to the subjective element required for the configuration of the crime in the cases referred to in point a), the "specific intent" is unanimously recognised, since the conduct must be carried out by the agent "in order to gain profit".

With regard to the conduct referred to in point b), the core of the sanctioning provision consists in the marketing of the counterfeited, altered or reproduced work of art. This means that the simple possession of a fake work of art for personal use, which is not put into circulation as authentic, does not constitute a crime. From the tenor of this provision, the question arises whether the marketing of forgeries would be punished regardless of the actual knowledge of the agent of the falsity of the work. Unfortunately, also in this case, the generality used by the legislator does not help the interpreter, who, in this case, cannot but consider the regulation as excessively punitive, if not even unconstitutional, given that in the art market one can rarely speak of certainties and in most cases the distinction between an original and a fake is definitely questionable. Well, in the opinion of the writer, this point can only be interpreted in the sense that the person who sells the counterfeited, altered or reproduced work is criminally responsible only when he has actual knowledge of it, or is in bad faith or serious negligence. Moreover, this criminal offence can be concurrent with the offence provided for by art. 640 of the Italian Penal Code - fraud - since the latter is a type of offence aimed at protecting a different legal asset, i.e. the individual's assets, and often concurs with the offence provided for by art. 648 of the Italian Penal Code - receiving stolen goods - aimed at preventing the circulation of goods resulting from illegal activities.

As regards the last criminal hypotheses provided for in the above mentioned points c) and d), the authentication or accreditation of false works as authentic, by whatever means, is punished, although it is required, from the point of view of the psychological element, that the agent (the art expert) is aware of the falsity of the work. The application of such rule in practice is very controversial and difficult both because in the field of art, as mentioned, nothing is guaranteed and, therefore, it would be unfair to punish the expert for giving an opinion in a world where certainty cannot be assured, and because ascertaining the expert's knowledge of the counterfeit work (the intent) would be equivalent to a probatio diabolica, since mere error or ignorance is not punishable. It should be noted, moreover, that a cardinal principle of our legal system, set forth in art. 533 of the Italian Penal Code, is that "the judge pronounces sentence if the defendant is guilty of the crime charged against him beyond any reasonable doubt", and such doubt is always present, or almost always, in the drafting of an opinion or an expertise.

Lastly, the regulation under examination provides for two accessory penalties: if the facts are committed in the exercise of a commercial activity, the penalty is increased and the sentence of conviction is followed by disqualification pursuant to art. 30 of the criminal code; furthermore, the latter is published in three daily newspapers with national circulation designated by the judge and published in three different places. Moreover, the mandatory confiscation of the counterfeited, altered or reproduced copies is foreseen, unless the res belongs to a person not involved in the crime. Also in this case, there is a difficulty in interpretation, which has been overcome only thanks to a recent pronouncement of the Supreme Court of Criminal Cassation that necessarily leads us to identify the concept of "belonging to a third party" not only with the right of ownership of the work, but also with any other real right of enjoyment. As regards the concept of "extraneousness to the crime", doctrine and jurisprudence consider that the acquirer in good faith is extraneous to the crime - meaning the acquirer to whom no charge of negligence can be made - and, in any case, the one who has not profited in any way from the crime either directly or indirectly and who has no connection with the illicit case.

In the next article the legislator has regulated the case of non punishability if at the time of the exhibition or sale the non-authenticity of the work is explicitly declared, by means of a written annotation on the same or on the object, or - when this is not possible due to the nature or size of the copy or imitation - by means of a declaration issued at the time of the exhibition or sale. The activity of reproduction, therefore, is lawful as long as the imitation is transparent. Also not punishable, according to the provisions of art. 179 of the Cultural Heritage Code are "artistic restorations that have not reconstructed the original work in a decisive manner". In fact, the principle of restoration is that it must be conservative and not reconstructive.

5. Conclusions.

There are many juridical-interpretative problems deriving from the complexity of the norms in force, and this cannot be the place to dissolve them all. Let's think, for example, of the concepts of "appropriation" and "elaboration", closely connected with those of plagiarism and counterfeiting. The use and elaboration of other people's works for the creation of new artistic works is an increasingly widespread artistic habit. From a jurisprudential analysis, the dividing line between the lawful appropriative use of a work or its re-elaboration and the unlawful conduct of plagiarism or counterfeiting would seem to be drawn by the existence or not in the work of art of its own creative, original and autonomous nature. However, it is not always easy to distinguish the above-mentioned characteristics.

Unlike a mere reproduction, an elaboration takes on an autonomous creative character, distinguishing itself from the original work. The right to elaboration, in any case, like the right to reproduction, belongs to the author of the original work. His consent must be requested for each act of elaboration. If, on the other hand, the work takes on, through the modifications, an autonomous creative character, which gives it a new connotation, we are talking about a "derived work" and, as such, its economic use is subordinate to the consent of the owner of the rights of the basic work pursuant to art. 18 of the Law on Copyright. Otherwise, the unauthorized use would constitute the offence of counterfeiting. In fact, when the reproduction of a work is carried out by a third party without the permission of the author to whom the paternity is attributed, we talk about counterfeiting.

Since we are dealing with subjective evaluations, it goes without saying that in many cases it is difficult to state with certainty whether a work possesses the minimum characteristics of creativity and autonomy with respect to the work that inspired it. As a matter of fact, plagiarism cases are more and more widespread and end with judgments that are sometimes contradictory.

There are also an increasing number of criminal proceedings in the world of art, where the inadequacy of the regulations in force, together with the state of uncertainty that generally affects this sector, sometimes leads to an erroneous assessment by the Investigating Magistracy, which results in the unjust seizure of works of art considered counterfeit, altered or fraudulently reproduced, or in the prosecution of the unfortunate expert who gives his opinion on a particular work. All this is obviously to the detriment of the individual on trial but also, more generally, of the entire community, considering the waste of public resources devoted to such situations.

Lawyer Leonardo Rocco

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