États-Unis d'Amérique
Droit d'auteur et droits connexes
3. Please explain whether and how Italy protects against the direct and indirect reproduction of phonograms as required by TRIPS Article 14.2, including by digital transmission in the context with respect to each category of subject matters.
Article 72 of the Law No. 633/1941 provides (according to the EEC Directive No. 92/100) that "the producer of a phonographic record or of any other similar contrivance for reproducing sounds or voices shall have the exclusive right, for the period and under the conditions laid down in the following articles, to reproduce, by whatever duplication process, and distribute the said record or contrivance of his production". Moreover, according to the same article, (paragraph 2) "The producer of a phonogram has also the exclusive right to lease and loans, as well as the right to authorize the lease and loan of the phonograms of his production. This right is not exhausted with the sale or distribution, in whatever form, of the phonograms". According to Article 73 of the same law, "The producer of the phonographic record or of any similar contrivance for reproducing sounds or voices, as well as the artists who interpreted or performed the interpretation or the performance recorded or reproduced on the said contrivances, shall be entitled, independently of the rights of distribution, lease and loan pertaining to them, to remuneration in exchange for the utilization, for purposes of gain, of the record or of the similar contrivance through broadcasting, cinematography, television, in public dancing parties, in public premises and on the occasion of any further public utilization of the said contrivances. The producer shall be entitled to exercise the aforesaid right, and shall share out the remuneration among the artists who acted, interpreted or performed the work". The artists who interpret or perform and the producer of the phonogram which was utilized shall be entitled according to Article 73bis to fair remuneration also when the utilization as per Article 73 was not effected for purposes of gain. According to Article 80 of the Law No. 633/1941 (as modified by Article 13 of the Dlgs No. 685/1994) artists who interpret or perform shall have the exclusive power, regardless of any remuneration to which they may be entitled for their live artistic performances: (a)to authorize recording of their artistic performances; (b)to authorize reproduction, whether direct or indirect, of the recordings of their artistic performances; (c)to authorize broadcasting by air and communication to the public, in whatever form and manner, of their live artistic performances, unless the latter were intended for broadcasting by radio or television or are already the subject or a recording for broadcasting purposes; (d)to authorize distribution of the recordings of their artistic performances; (e)to authorize lease or loan of the recordings of their artistic performances and of the reproduction thereof: The Rome Convention has been ratified by Italy; on June 1995, Italy confirmed some of the reservations already notified, as foreseen by the Convention; among these, the reservation relating to Article 5.3 of the Berne Convention. Consequently, Italy is protecting phonograms on the basis of the criterion of "fixation", this criterion being considered more clear and rigorous compared to the other two criterions of nationality and publication. It should also be remembered that, with Law No. 406 of 5 May 1975, Italy ratified the Geneva Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of their Phonograms.