The copyright issues that generative AI poses
As is well known, the use of artificial intelligence (AI) in content creation has marked a momentous turning point in recent years, so much so that it is now capable of generating and producing works of different kinds, including musical compositions, literary texts, visual artworks and design projects.
For example, thanks to the use of artificial intelligence in the music industry, starting from musical bases generated by algorithms and refined by musicians, it has been possible to compose songs of various genres, from classical music to modern pop. Such AI platforms can be used for free by anyone who wants to generate new musical compositions; in fact, it is enough to download the appropriate program from any search engine and briefly describe the content you want to listen to for the desired musical text to be played.
Not only that. AI is also being particularly used in the field of visual art and in fact has made it possible to recreate works of art exhibited and sold at auctions as one-of-a-kind pieces, among which it is worth mentioning some collections made with the help of AI exhibited in the well-known MoMA (Museum of Modern Art) museum in New York.
And even in the field of literature, artificial intelligence is being used to create poems, short stories and entire novels simply by asking the “machine” to analyze and study existing literary collections.
Such artificial intelligence systems are better known as “Generative Artificial Intelligence,” as the content is created and generated by using complex algorithms and machine learning models. These are systems designed to learn from large amounts of existing data through which they are then able to generate new content.
It goes without saying that this extraordinary ability of AI astonishes but also worries, as it challenges the traditional notion of authorship and raises a number of questions about the ownership of rights over such creations and works.
Indeed, one of the main difficulties related to this content creation process, is whether the work generated by generative AI can be considered “original” according to the traditional notion of copyright and whether the AI creation process represents a “reworking / transformation,” legitimate or not, of the original work.
Since the algorithm uses third-party, copyright-protected material, it could be argued that generative AI is capable of generating derivative work, which, as is well known, is a new creation that incorporates or modifies a pre-existing work already protected by law. In this context, if a generative AI algorithm is trained, for example, with copyrighted pieces of music, it is open to question whether the result obtained violates the copyrights of the original works to the extent that it constitutes an unauthorized reworking of them.
If, again for the sake of argument, one was to classify the work created by generative AI as an autonomous and original work, one would then have to ask which party would be entitled to the relevant intellectual property rights over that creation.
However, the current copyright rules are unable to provide any guidance on such questions, given that they were conceived at a time when it was hardly conceivable that any content could be created by anyone other than a human being.
As a result, identifying the artificial intelligence system as the author of the work, and thus the holder of the relevant copyright, would raise a number of complex legal issues, certainly including that of legal capacity, which, as is well known, is the ability of a subject to be the holder of subjective legal situations and thus of rights and duties. This requirement is inevitably lacking when discussing artificial intelligence systems.
For the above-mentioned reasons, the question therefore arose as to whether the authorship of the work should therefore be attributed to the developer of the generative artificial intelligence system.
However, this statement poses a further problem: the creativity and originality of the work is not directly ascribable to the action of the developer, rather than to the artificial intelligence system itself, or in any case it is particularly difficult to identify the creative contribution of one or the other.
The same also applies to the owner of the data used in the training/learning phase of the artificial system; in fact, even if one wanted to identify this subject as the owner of the copyright, the dataset provided by him, in the absence of a learning model, would in any case not be able to generate the work and therefore once again there would be a risk of attributing and recognizing rights that are not exclusively due to a human being.
Case law has attempted to provide an answer to these numerous questions. Indeed, an initial decision by the Copyright Office in the United States of America denied any copyright recognition to works created entirely by a generative AI system, clearly stating that for a work to be protected by copyright, there must be a human author involved in its creation.
This orientation has also been confirmed by more recent court rulings in the US and, in particular, by a federal court in Washington D.C. in 2023.
In Europe, a similar conclusion has also been reached: the Supreme Court recently ruled on this issue in Judgment no. 16346 of 2023, regarding the definition of authorship for works created by means of AI systems and the level of integration of the creativity of the artist in the use of the software. In the opinion of the judges of the Court, it is necessary to assess on a case-by-case basis whether, during the generative process of the work, the software in use has integrated with the creativity of the human user.
The difference between a simple automatic generation of content by generative AI systems and a work that is an expression of the creativity of the artist through digital AI is therefore of fundamental importance. Only in the latter case, by demonstrating therefore that there has been a significant human creative contribution, is it possible to find ways of enforceable protection under copyright law.
In this context, the need for an intervention by the legislator to redefine key concepts and prepare new copyright regulations for the AI phenomenon, which is destined to grow exponentially, is unquestionable.
One solution that is worthy of attention could be the drafting of new forms of licenses and copyrights that would better suit today's reality and represent a meeting point between technological innovations and copyright protection. For instance, we could consider introducing specific licenses for AI-generated works or developing new ways of enforcement in which the collaboration between human ingenuity and the aid of AI is clearly recognised.
Finally, more cooperation at European and international level is desirable, considering the global dimension of technological innovation and distribution of creative works. Digital technologies, such as the internet and content distribution platforms, are by their very nature global and therefore require a coordinated response from authorities in different countries.
It will be crucial to work together to establish standards and rules that work globally, while ensuring that the copyrights of different jurisdictions are respected.
Ambush Marketing: the evolution and uncertainties in preparation for Milan Cortina 2026
For events of a certain media importance, usually sports, companies that are used to investing in advertising compete for commercial partnerships with the organiser of the event, bearing considerable investments but also expecting a positive economic and image return.
It is clear that, by virtue of the most basic principles of competition, even companies that have not reached (or simply did not want to reach) any commercial partnership agreements with the organiser, are allowed to advertise their products by alluding to the event (so-called “smart marketing” or “real time marketing”). Such promotional initiatives encounter a limit and become unlawful if the company replaces itself in the public's perception as the sponsor or official licensee, thus damaging not only the company that has invested to secure the partnership but also the event's organisation, which is consequently forced to lower the fees of licences and sponsorships to make them more attractive.
These practices are called “Ambush Marketing”, a topic more relevant than ever given the upcoming Winter Olympics Milan Cortina 2026. As always, when it comes to major sporting events, the States involved in the organisation regulate the trickiest aspects with specific regulations; the Italian Government, for the occasion, issued Law Decree n. 16/2020 (the so-called “Ambush Marketing Decree”), converted into Law n. 31/2020, which has general application and is not limited to the 2026 Olympic Games.
Regarding this business practice, it should first be pointed out that to date there is no precise legal definition of ambush marketing; the expression has Anglo-Saxon origins and was coined for the first time by Jerry Welsh on the occasion of the 1984 Olympic Games in Los Angeles, when the US multinational Kodak decided to sponsor television programmes related to the Olympics, crediting itself to the public as the official sponsor of the event even though it was not, unlike its competitor Fujifilm.
This expression therefore refers to all those situations in which a company attempts to exploit an event that has particular visibility to its own advantage, without, however, being linked to the organisation of the event.
Sometimes the so-called ambusher presents itself as the sponsor or official licensee of the event using signs, symbols, trademarks related to it. In Italy, it was the Court of Venice in 2005 that first recognised this unlawful conduct, prohibiting the famous Venetian company Benetton from using the term “olympic” on its clothing coincidentally introduced in proximity of the Turin 2006 Winter Olympic Games.
However, there are many ways in which ambush marketing takes place, and only rarely do these go so far as to explicitly recall the (usually well-known) distinctive signs associated with the event. More often, ambush marketing occurs in an indirect and veiled manner and is realised through the intensification by a company of advertising investments in conjunction with, or close to, the event, in order to dilute the official sponsorship of the event obtained by the competitor. For example, during the 1996 Olympic Games in Atlanta, instead of paying the approximately 50 million dollars required by the organisation for sponsorship, Nike set up a massive shop close to the sports facilities and covered the stadiums with its advertisements, thus deceptively suggesting that it was one of the official sponsors of the event. Lastly, in the spring of 2022, the AGCM sanctioned Zalando, which was not a sponsor of the UEFA EURO 2020, for having displayed during the event and close to the Football Village a huge billboard bearing the words "Who will be the winner?" and the flags of the participating countries, thus brazenly referring to the event and creating doubt in the public about the existence of a commercial relationship with the organiser UEFA, which in fact did not exist.
Sponsoring an event concurrent to the main event can also be a form of ambush marketing. Again, Nike in 2008 organised, at the same time as the 2008 Summer Olympics in Beijing, the “Nike + Human Race 2008”, a running race held in 25 countries for charity purposes but which had the deceitful intention of promoting the company by parasitically linking to the Olympic Games.
Another form of ambush marketing is carried out through surprise advertising initiatives during or close to the event. In this case, the ambusher's aim is not to make people believe that it has a partnership with the event organiser, but exclusively to make people talk about it. This is the case of Pringles, which during Wimbledon 2009, despite not being a sponsor, distributed packages outside the tournament venue bearing the words 'These Are Not Tennis Balls', playing on the similarity between the tube of chips and the one containing tennis balls and thus achieving a great return of image.
Finally, there is a conduct that at first sight might appear to be ambush marketing but which in reality is lawful and do not infringe others' rights, that occurs when one creates an indirect association with the event, for example by means of advertising campaigns in which well-known personalities who have previously participated in the event appear. Significant here is the case of Lay's, the chips company that on the occasion of the 2014 World Cup recruited footballers Fabio Cannavaro and Lionel Messi as testimonials, despite the fact that the official sponsor of the Italian national football team at the time was the competitor San Carlo. However, neither the Institute of Advertising Self-Discipline nor the Court of Turin decided to sanction the unlawful conduct in this case. Consistently with this decision, the regulations issued for Milan Cortina 2026 expressly exempt in fact conduct carried out in performance of sponsorship contracts concluded with individual athletes, teams or participants in one of the events.
In the light of the case law analysed, one now has to ask how far a company can go in advertising its products during events of great media resonance. The lack of a clear definition of ambush marketing and the vagueness of the criteria identified by the judges make it difficult to date to precisely identify the perimeter within which a company may lawfully move and make ambush advertising predictable and avoidable. Nor does the Ambush Marketing Decree already cited solve this problem.
In conclusion, in order to adequately protect the investments made by companies in the course of such events and avoid unpleasant surprises, it is hoped that the legislator will soon succeed in providing a regulatory definition of ambush marketing and clearly identify the requirements for its configurability.
In any case, to date there has been no ambush marketing to the 2026 Winter Olympics. We will see!
Digital Content Creators in the IP world
In recent years, the online communication and entertainment industry has been profoundly revolutionized thanks to technology and its increasing use, which has created new job opportunities including, for example, the creation of digital contents, capable of generating profits. No one should be surprised, therefore, that an increasing number of young people are trying to make their way in this field in an attempt to realize a unique digital product on the various platforms that is immediately recognisable to the public of web.
These people are called “digital content creators” (a category in which the "influencers" can be included), that we want to analyse in this article, especially in relation to some intellectual property aspects.
The digital contents produced by the content creators are protected by copyright law if the requirement of creativity is met. In this case, any unauthorized reproduction and/or dissemination of such digital contents by third parties is expressly prohibited, unless there is an express consent from the digital content creator, which is usually released in exchange for a monetary compensation.
As a result, first of all, the content creator is the owner of the moral rights of the created content, so only he can be recognized as the author of that content; these rights are inalienable and untransferable. Furthermore, the content creator is also the owner of economic utilization rights of the content, which are transferable, even if only partially.
This is the example of the many advertising contracts signed between companies and content creator/influencer. The latter, according to the advertising contract, agrees to create digital content, such as photos, posts, stories or videos, through which he promotes the products and the services of a particular brand. All this in exchange for a monetary compensation but also, in certain cases, the transfer of the property rights of this content in favour of the company, like the right to use and/or reproduce it for any purpose and in any form without incurring any infringement.
This partnership is not new; in fact, it already existed in the past as celebrity marketing, whereby athletes, actors, singers or celebrities from other sectors used their face and image becoming the brand ambassador of a company, so the representative of that brand. However, in the past, the personalities chosen were already famous for other merits, therefore, the consumer purchased the product and/or the service based on the popularity of these personalities and not on their promotional ability. Totally different is the influencer marketing because often the content creators are not famous, so they are more human and accessible, which is the reason behind the "trust" relationship built with the consumer; moreover, the content creators are chosen precisely for their promotional skills and therefore for their ability to suggest and influence their followers about the choice of a certain product and/or service. Thanks to that ability that the content creator can become a real celebrity.
In light of these considerations, the image of the content creator/influencer in the communication and entertainment industry is central and therefore it deserves to be protected and safeguarded.
In fact, the image is an absolute right of a person that cannot be damaged in any way, so its disclosures and/or reproductions without the consent of the person involved are generally prohibited. The rule does not apply for famous and notorious people because in these cases the consent is not necessary, except if the reproduction and/or disclosure of the image would result in prejudice to the reputation or decorum of the person in question. However, it is not always easy to understand when the use of the image is justified by the celebrity of the person or when it instead constitutes a damage to the person's reputation.
This last aspect shows how it is not always easy to protect the image of famous people, such as precisely the content creators, which is the reason that they often adopt alternative remedies to protect their image. One of these is to register their name as a trademark to prevent third parties to improperly use their popularity by taking financial advantage, or, by damaging their reputation.
As further confirmation of the above, also recent case law has denied to famous people the right to protect their image as an intellectual work, de facto depriving them of an additional defence instrument.
This is the consequence of the judgment no. 219/2/2023 of the Second Instance Tax Court of Piemonte, issued against the football player Cristiano Ronaldo, who, in addition to being known as an athlete and as one of the highest-paid players in the world, he has also utilized his popularity, image, and initials (CR7) over the years to generate new economic income, in order to be part of the celebrity/influencer marketing.
The player, who at the time was playing for the Italian soccer club Juventus, had applied for a preferential tax regime under Article 24-bis of the Italian Income Tax Act (TUIR). The aim of that legislation was to encourage foreign citizens, especially the wealthiest, to transfer their residence in our territory and for this purpose had provided for a fixed flat-rate regime for all new-residents, but only in relation to their foreign source income.
Cristiano Ronaldo had requested access to the preferential tax regime provided by the TUIR since believed that the profits originated with the use of his image, so with the celebrity/ influencer marketing, were separate from the football activity carried out, at that time, in Italy. Tax Court of Piemonte denied the application of Article 24-bis TUIR to CR7.
According to the Court, in fact, the image of any person should be protected only as personal quality, it is not the product of an autonomous work, because notoriety could originate, as we have already said, by an artistic or professional activity or ability, or even by the simple skill to promote the own image on social networks and other digital platforms. So, the image is connected to the person and cannot be separated from his life and work. Therefore, the profits deriving from the use of the image of Cristiano Ronaldo could not be separated from his sporting activity, being directly and intrinsically connected.
Beyond the tax implications of this decision, this ruling has generated important consequences for the whole celebrity/influencer marketing industry. In fact, as we have already said, influencers are the most exposed to the violation and injury of their image right. For this reason, in the absence of specific legislation, over the years, they have tried to find escamotages and use other instruments of protection, often referring to copyright and the industrial property code. However, denying the qualification of intellectual work to the image right, the Tax Court of Piemonte has deprived the content creators of a new instrument of protection, generating a legislative gap in the entertainment and communication sector.
In fact, the image of the more and more influencers consists in a real working tool that, if damaged, could cause not only moral but also economic damage, obstructing or making difficult their work.
Therefore, if the regulation of copyright cannot be extended to effectively protect the image of the content creators, we wonder if the legislator will intervene to introduce new and more specific defence instruments in favour of all individuals involved in celebrity and influencer marketing.
Regulation and risks related to the use of Artificial Intelligence Systems
As known, on 21 April 2021 the European Commission finalised a proposal for a regulation (hereinafter for convenience “Regulation”) in order to introduce a system of harmonised rules for the development, placing and use of artificial intelligence “AI” systems within the European Union. At that time, a “grace period” was introduced, that is a two-year period in which all operators of the field would have had time to comply with the Regulation, as well as to make decisions based on the rules contained therein.
In light of the proliferation of AI systems, it is legitimate to ask whether during the aforementioned grace period they have actually complied with the rules of the mentioned Regulation.
To answer this question, it is first necessary to list below the artificial intelligence systems specifically prohibited by the Regulation:
- those that use subliminal techniques capable of distorting the behaviour of a subject;
- those that exploit the vulnerability of a specific group of people;
- those that allow public authorities to create a classification of persons based on a social score;
- those using real-time biometric identification systems, except in cases provided for by law.
In addition to the above, the European Commission has also identified three types of risk in relation to the type of artificial intelligence system in use, which are shown below:
- “unacceptable risk” if the AI system is to be considered a threat to security, means of support and individual rights; such a system is to be considered prohibited under the Regulation;
- “high risk” if AI systems are used in areas where fundamental human rights are affected; such a system can be used and implemented only by adopting a number of precautions which will be discussed below;
- “low risk” if AI systems involve risks that are considered minor, such as in the field of video games, where only transparency obligations are imposed.
On the basis of these due premises, let us try to analyse a concrete case of artificial intelligence - namely, the autonomous driving system of the well-known car manufacturer “Tesla” in relation to which the Firm has already published an article - in order to understand whether or not it complies with the Regulation and, more importantly, what kind of risk would result from its use.
It is reasonable to consider as high the risk such AI system could bring to the public, and proof of this is the more than 700 accidents caused by it outside the European Union, with damages caused both to people and third-party vehicles.
It is also reasonable to state that an autonomous driving system such as the one in question should require a double regulation, namely both the rules of the aforementioned Regulation in relation to the use/implementation of the artificial intelligence system, and new and specific traffic regulations imposed by the circulation of driverless vehicles that communicate with each other through signals and sounds not comprehensible to humans (it appears that the latter regulation is already well advanced in France, Germany and the United States).
Now, it seems reasonable to place this so-called “self-driving car” AI system within the second type of risk, i.e. the one deemed “high”; according to the Regulation, this type of risk imposes on the manufacturer of such artificial intelligence system (“Tesla”) to carry out a preliminary conformity assessment of the system as well as to provide a detailed analysis of the relative risks, all by means of a series of tests that must prove the total absence of errors of such systems. In addition, Article 10 of the Regulation lays down a further obligation for the company using the AI system concerning the proper storage and governance of the data of the users processed by the systems in question.
Thus, the Regulation provides a number of rather strict requirements and obligations that, in the writer’s opinion, are unlikely to be met by the artificial intelligence systems now in circulation and, in fact, there has been lot of criticism from those who would like to see the introduction of less stringent criteria so as to facilitate greater use of artificial intelligence systems.
Another concrete example of artificial intelligence, which we have already discussed in last month's article, is ChatGPT which in Italy was blocked by Italian Authority for Privacy for non-compliance with the European regulations on personal data.
Precisely ChatGPT shows how it is quite complex to frame and classify different AI devices although applying the criteria and principles set out in the Regulation. In fact, at a first and superficial analysis, ChatGPT could fall within the AI systems with a lower risk (third level) as it does not seem to involve fundamental rights.
However, one has to wonder whether this also applies if one were to ask the ChatGPT application to track and disclose a person's data or to prepare an essay or even to rework a copyrighted work.
The answer to this question can only be negative, since such use would risk violating not only the fundamental rights related to the protection of personal data of each individual but also those belonging to the authors of copyrighted works. All this forces us to classify ChatGPT in the category of "high risk" AI systems.
In this respect, it should also be pointed out that the Regulation provides strict controls in relation to “high-risk” AI systems, as well as the application of administrative penalties of up to EUR 30 million or 6% of the turnover of the company concerned. It is however unclear, or at least has not yet been identified, the body responsible for monitoring compliance with the Regulation.
In conclusion and based on the considerations spent above, the writer believes it is advisable for the principles and criteria for the classification of the various artificial intelligence systems to be better defined when the regulation is definitely approved, given that they are currently too generic and often insufficient to correctly classify more complex AI systems (such as “ChatGPT”).
It is also desirable that an independent and impartial authority will be created and set up for each Member State, which can carry out the function of monitoring and verifying the correct application of the regulation's provisions in order to better protect the fundamental rights of individuals.
GPT Chat and Copyright: implications and risks
Lately, there has been a lot of discussion about Chat GPT, acronym for Chat Generative Pre-trained Transformer, a particular chatbot developed by OpenAI which is a research company engaged in the development and evolution of artificial intelligence.
Chat GPT has been presented to the users as a “friendly Ai or Fai”, therefore as an intelligence capable of contributing to the benefit of humanity. Nevertheless, its use has triggered lot of concerns and criticisms, with major implications especially in relation to intellectual property’s aspects.
In fact, thanks to its advanced machine learning technology, called Deep Learning, Chat GPT is able to generate a new text autonomously, imitating human language. Thus, it can be used not only to briefly answer questions, but also for automatic text writing.
Specifically, Chat GPT is able to create texts from scratch upon user's request, but also to process summaries or documents from existing works and thus owned by others.
However, the current absence of a specific regulation on its use risks to seriously jeopardizing the copyright of the contents “created” by Chat GPT: on one hand significantly increasing cases of copying and plagiarism and, on the other hand, making more complex for the copyright holder to defend its rights.
To fully understand the issue just above represented, we must first consider that, according to copyright law, the idea cannot be protected as such, but only its form of expression (thus, in the case of Chat GPT, the text created).
It must also be considered that once the authorship of the writing or work has been recognized, any improper use of it is forbidden, including copying in its entirety, paraphrasing and sometimes reworking it, when the differences appear to be of minor relevance. In essence, plagiarism exists in case of partial reproduction of the protected work and, based on recent case law of the Supreme Court, also in the case of “developmental plagiarism”, for example when the new work cannot simply be considered inspired by the original work because the differences, merely formal, make it an abusive and unauthorized reworking of the latter.
It is also useful to point out that, according to consistent case law, in order for copyright infringement to be established, the elements considered essential of the original work must not be reproduced and therefore they must not coincide with those of the work that has been transposed.
Although there is no specific regulation on the point, it is reasonable to state that these principles also apply to the texts generated by Chat GPT, because its use or the use of any other form of artificial intelligence cannot derogate the rules of copyright law. Consequently, the users must be very careful to ask to Chat GPT to summarize or paraphrase another's text because, if these are spread without the author’s permission, the latter might demand payment of reproduction rights in addition to compensation for any damage caused. To this extent, once can wonder whether the artificial intelligence’s system itself should refuse such a request if it precisely infringes other’s rights.
Another hypothesis that might arise must then be considered, and that is if the text prepared from scratch by Chat GPT is worthy of protection under copyright law. In this case, the question to be asked is whether copyright can be recognized in favor of Chat GPT.
To answer this question, we must first consider that, according to the Italian law, artificial intelligence systems are devoid of legal personality, therefore they cannot hold any rights, including copyright. This also seems to be confirmed by the copyright law which doesn’t mention Chat GPT nor any other form of artificial intelligence in listing the subjects to which it may be applied. And it could not be otherwise since it is a law issued in 1941.
Consequently, for a Chat GPT work to be deemed worthy of protection under the copyright law, there must necessarily be a creative contribution by a natural person, which, however, seems to be lacking at present.
In conclusion, the absence of ad hoc legislation regulating the use of Chat GPT exposes to serious risks of infringement of others' works and thus jeopardizes authors’ rights. This is also because it does not appear that Chat GPT has at present adopted suitable verification and control systems to prevent infringement of other’s rights.
Given the increasing use of this new technology and the doubts just discussed, the writer hopes that the legislature will regulate this phenomenon as soon as possible so as to clearly define its scope and any possible rights (rights which do not seem to be able to be recognized in favor of Chat GPT).
It is also hoped that Chat GPT will soon be able to implement effective monitoring and reporting systems for the protection of intellectual property rights, which will likely need the help and assistance of the rights holders themselves (similar to the Amazon platform), but which could concretely safeguard others’ creative works.
The European unitary patent: what possible advantages and disadvantages?
Until now, at the European level, patents have been governed by the Munich Convention, which provides for a single, centralized procedure for granting patents entrusted to the European Patent Office (EPO).
While the procedure is uniform in terms of the granting of the patent, the same cannot be said for its protection; the European patent granted must in fact be validated in each State party to the Convention in which protection is sought. It is commonly said that the European patent corresponds to a “bundle” of national patents: in essence, following the grant, the European patent confers on the holder the same rights as would be conferred by a national patent, and all questions concerning the validity and infringement of the patent are referred to the national courts.
This situation is about to change.
European unitary patent
As we all know, the Agreement on the Unified Patent Court will enter into force on 1 June 2023 and at that point the European unitary patent will be effective, which will confer uniform protection in all European states that have chosen to adhere to this new system.
It should be made clear that the European unitary patent will not replace the “traditional” European patent, on the contrary, it will stand alongside the latter by allowing the patent holder to choose which system to join.
As it happens with the “traditional” European patent, the EPO will still be the competent office to grant unitary patent rights; furthermore, the new system has not changed the way the patent is granted. Quite simply, at the end of the grant procedure of the European patent, the patent proprietor will have the option to request unitary effect within one month and will have to do so in the language of the proceedings.
Currently, twenty-five European states have chosen to participate in this system (the big missing country is Spain); only seventeen, however, have ratified the Agreement.
This means that when the system comes into force, uniform protection will only extend to the seventeen ratifying states. The question to be asked is therefore: what will happen next? When other states ratify the Agreement, will the uniform protection automatically extend to them?
Surprising as it may be, the answer is no.
In fact, over time several “generations” of unitary patents will be created with different territorial coverage depending on the number of states ratifying the Agreement. At least in the first instance, therefore, there will not be a truly unitary patent in all the states participating in the system.
Given that this is an alternative system, how can one choose not to join it?
It is already possible to do so. As of 1 March 2023, in fact, the so-called sunrise period began, i.e. a three-month period during which the holders of European patents already granted, holders of European patent applications and holders of supplementary protection certificates granted for a product protected by a European patent may request the exclusion of these from the system and consequently remove them from the jurisdiction of the Unified Patent Court (this is referred to as an opt-out, as provided for in Article 83 of the Agreement). The opt-out can also be exercised during the transitional period (seven years). However, it is a good idea to make this choice during these three months because, if you are involved in a court action before the Unified Court after 1 June, the opt-out will no longer be permitted. If one chooses to opt-out, is one forever excluded from the system? No, it is possible to change your mind and choose to opt-in, but this choice cannot be revoked again.
What concrete advantages will the new system bring?
There are many advantages. First of all, uniform protection will be available in all states that have ratified the Agreement and the EPO will be the only office to which applications will be submitted (not only that, but the EPO will also centrally manage the post-registration phases). In addition, holders of unitary patents will pay a single annual maintenance fee and costs related to the validation phase of the patent will obviously not be paid anymore. In addition, disputes that arise in connection with the unitary patent will be subject to the exclusive jurisdiction of the Unified Patent Court, whose decisions will have effect in all states affected by the unitary effect (this will make it easier for the patent holder to stop ongoing infringement activities in all affected states).
However, the European unitary patent also seems to have certain limitations. First, it has potentially less territorial coverage than the European patent. The new system only involves those EU states that have ratified the Agreement (unlike the EPC, which also includes non-EU states such as, for example, Switzerland and Turkey). It should be added that the new system is, in certain cases, a double-edged sword. On the one hand, uniform application of the law is provided for, but on the other hand, the patent holder may be exposed to a higher risk: if the Unified Patent Court judges a patent invalid, it would be invalid in all states affected by the unitary effect.
So, is it worth joining the new system or not?
There is no straightforward answer to it. It seems compulsory to make an assessment that takes into account the peculiarities of each individual case. For example, the patent at issue and its “strength” must first be considered. But also the procedural position one takes in a possible court action; in fact, as a plaintiff, it might be useful to obtain a single decision for all the territories adhering to the patent system with unitary effects (with obvious savings in time and costs), while as a defendant, on the other hand, it might be useful to defend oneself in different states, and therefore before different judges, thus gaining time, and avoiding that an unfavorable decision would have effect on all the territories of the UPC at the same time, thus preventing the sale of the product considered to be infringing in the 17 countries adhering to the Agreement.
It should also not be forgotten that the system is new and right holders will be “exposed” to it. The tightness and efficiency of the rules will really be put to the test once the system comes into force. Likewise, the case law of the new Court is obviously not known. It has also been pointed out by several parties that the unitary patent provides less flexibility; it will not, for example, be possible to carry out the so-called selective abandonment, which is instead feasible for the “traditional” European patent (the unitary patent will have to be maintained or abandoned in all countries). It will also not be possible to transfer the patent only in certain states.
Conclusions
In conclusion, the unitary patent presents some advantages on the one hand, but also disadvantages on the other, which must be carefully weighed up according to the specific case. In the case of the opt-out, this is the right time to start making initial assessments. For everything else, one will have to wait for the entry into force of this new system to understand its actual scope and operational efficiency.
The “Magic Avatar” and the world of artificial intelligence: lights and shadows of a trend that “revolutionizes" privacy and copyright
On December 7, 2022, “Lensa” has turned out to be the most popular iPhone app on the Apple store. The reason? Although “Lensa” has been on the market since 2018, last November it launched a new feature called “Magic Avatar”: taking advantage of artificial intelligence, this feature allows users – upon payment of a fee - to transform their selfies into virtual avatars.
At first glance, once does not catch the problem arising from an avatar who shows the face (clearly enhanced) of the subject of the selfie; however, upon closer analysis, there are several legal issues connected to the use of this “Lensa”’s feature.
Indeed, the application thereof works thanks to artificial intelligence and on the basis of a huge amount of data (so-called “datasets”) which are stored and used to improve the performance of the application itself. In most of the cases, these datasets are nothing more than images collected randomly on the web in relation to which obviously there is no real control on the existence of any rights. This is the first problem: the diffusion and collection of illustrations without the consent of the artists who previously created them turn out to be a copyright’s infringement. Authors are not recognized of any contribution or prize for their works – which, instead, should be guaranteed to them pursuant to the Copyright Italian Law (l. 633/1941 and subsequent amendments) – and they also find themselves competing with artificial systems which are able to “emulate” their style in few minutes.
The problem does not concern the avatar generated by “Lensa” application, but the huge number of images extrapolated from the web, used by the system to trains itself and from which it must “learn” to then reproduce the avatar. The consequences of such a trend should not be underestimated since it is fair to wonder whether one day the artificial intelligences might completely replace human activity. Such undesirable scenario is not so unlikely if we consider that the treatment of visual works created by the use of artificial intelligence’ systems is currently being studied by the US Copyright Office.
In order to (partially) face this issue, the website “Have I Been Trained” has been created to help content creators carry out research aimed at understanding whether the datasets used by artificial intelligences unlawfully reproduce their creations.
There is also a second and more worrying aspect concerning the processing of personal data by “Lensa”. Upon payment of a very low amount to generate the avatar, people provide the application with personal data and information that may also be used for purposes completely different from the creation of “filtered images” and that have therefore a significant economic value. This is one of the main complaints made against this app, namely that, once installed, “Lensa” collects more data that those necessary for its operation, transferring them to servers located in the USA (where the company’s registered office is located). That’s enough to state that the data processing does not comply with the GDPR.
Indeed, Lensa app’s privacy policy states that users’ biometric data (defined under Art. 4 par. 14 of GDPR as “those personal data resulting from specific technical processing relating to the physical, physiological or behavioural characteristics of a natural person, which allow or confirm the unique identification of that natural person, such as facial images or dactyloscopic data”) would be delated from the servers once the app has used them to generate the Magic Avatar.
The point is that – as often happens – “Lensa”’s privacy policy is long and complex, namely it adopts legal terms difficult to be understood by the users; for example, we read that “Lensa” does not use “facial data” for reasons other than the application of filters, unless the user gives consent to use the photos and videos for a different purpose. This might seem comforting but, on a deeper analysis of the terms and conditions, it turns out that “Lensa” reserves far broader powers – of distribution, use, reproduction, creation – over the work raised from user content, subject to an additional “explicit consent” required by the applicable law (i.e., the various national laws).
But where does such “explicit consent” come from? Easy: by sharing the avatar on the public or tagging “Lensa” on social networks, even via hashtag, the user gives consent to use that content and thus authorizes the company to reproduce, distribute and modify it. This licence – which ends with the deletion of the account – is justified in Lensa’s privacy policy on the basis of the so-called “legitimate interest” (i.e. “it is our legitimate interest to make analytics of our audience as it helps us understand our business metrics and improve our products”).
However, this statement raises some concerns, especially in the light of the decision issued by the Italian Privacy Guarantor concerning the social media “Clubhouse”, according to which company’s “legitimate interest” is not the proper legal basis for processing such data and therefore it is not correct either for carrying out data analysis or for the systems “training” process.
In the end, artificial intelligence undoubtedly represents an epoch-making technological evolution, but its use may imply the risk of un unlawful compression of users’ rights; indeed, a European Regulation on artificial intelligence aimed at defining the scope and conditions of its use has been under consideration for some time.
In this respect, hopefully “Lensa” application will take steps as soon as possible to protect the illustration creator’s rights through the recognition of a proper remuneration to them, and so that the user data will be collected and processed correctly, in accordance with applicable privacy’s laws.
The expression “Neapolitan pizza” finally protected
On December 18, 2022 the new Implementing Regulation (EU) No. 2022/2313 came into force through which the European Commission officially included “Pizza Napoletana” in the register of “Traditional Specialities Guaranteed” (TSGs).
Therefore, from that date, the expression “Neapolitan pizza” may be used only to distinguish products that exactly comply with the characteristics of preparation defined in the official document approved by the Commission (so-called Disciplinary Regulations) upon proposal of AVPN (Associazione Verace Pizza Napoletana) and APN (Associazione Pizzaiuoli Napoletani).
The fact that Neapolitan Pizza is a Guaranteed Traditional Specialty is certainly not news.
Neapolitan pizza has, in fact, been on the TSG register since 2010 without reservation of the name, with the consequence that until new Regulation came into force anyone could use the expression “Neapolitan pizza” to distinguish the famous traditional Italian dish but could not affix the acronym "TSG" to it.
However, the above Regulation introduces new rules requiring, in particular, that in order to use the expression “Neapolitan pizza” the Disciplinary requirements must be met, with the consequence that, in their absence, pizza can no longer be identified and named on restaurant menus or on restaurant signs as “Neapolitan”, under application of a penalty, as well as, clearly, the prohibition of use of the expression.
But what exactly is TSG certification for?
In this regard, reference should first be made to the discipline of TSG certifications contained in Regulation (EU) No. 1151/2012, which generally concerns quality schemes for agricultural products and foodstuffs.
The quality regime is guaranteed by three European certifications (P.D.O., P.G.I., TSG), which can be attributed to food products or preparations with certain characteristics related to the territory.
The objectives of "TSG" Certification
This Regulation aims to safeguard traditional production methods and recipes by helping producers communicate the characteristics and production methods of these products to buyers, also in order guarantee transparency of information and fair competition among producers.
For example, consider the hypothesis in which a consumer intends to buy a pizza (or any other typical product): the latter might be attracted by a slogan bearing the expression “the real Neapolitan pizza”.
Such an expression could therefore cause confusion among the consumers and consequently unfairly favor one business over another when used in the absence of the requirements for TSG-certified “true Neapolitan pizza”.
Thus, the purpose of certification is to safeguard producers and guarantee market balance.
The requirements for TSG protection and the “Disciplinary Regulation” of Neapolitan pizza
A name can be registered as a TSG if it designates a product made by a production method that corresponds to a traditional practice and/or if it is made from traditionally used raw materials or ingredients (Art. 18).
In order to obtain registration, a so-called “Disciplinary Regulation” must be presented and, according to Article 19, must indicate the following information:
- the name whose registration is requested (in our case, in fact, “Neapolitan pizza”);
- the description of the product, including the main physical and chemical characteristics, demonstrating the specificity of the product;
- the basic elements attesting its traditional character.
The requirements for Neapolitan TSG pizza are, as it is obvious, about the raw materials, shape and flavor, as well as dough and baking.
As for the raw materials they are wheat flour, brewer's yeast, drinkable natural water, peeled and/or fresh tomatoes, sea salt or table salt, and extra virgin olive oil. Other ingredients that may be on the list are: garlic and oregano, Buffalo Mozzarella from Campania PDO, fresh basil and Mozzarella TSG.
However, it is not only the ingredients that identify the product.
In fact, the Disciplinary Regulation requires that the shape must be "wavy," the diameter must not exceed 35 cm, and the raised edge must not exceed 2 cm in height.
Other requirements, however, concern texture, states that the dough should be soft, elastic and not sticky, and flavor, which should be "savory" and mixed with the typical acidity of tomato and cooked mozzarella.
As for leavening, it must be two hours in the first stage and, after the formation of the buns, another 4-6 hours. With reference to baking, on the other hand, the pizza maker must use a wooden shovel and use only wood-fired ovens at 485° and the time must not exceed 60-90 seconds.
Conclusions
Thanks to the registration in the SGT registry, it is now possible to prohibit the use of the expression “Neapolitan pizza” by anyone who does not make pizzas according to the rules of the aforementioned Disciplinary Regulation, with penalties (including heavy ones) imposed on violators.
This could lead to the (almost paradoxical) consequence that many of Naples' historic pizzerias may be forced to remove the designation "Neapolitan pizza" from their signs and menus.
In light of the new regulation, therefore, all Italian (and even Italian abroad) pizza makers and restaurants will have to pay special attention to how they identify their pizzas and their business in order to avoid the penalties under the regulations in case of violation.
That’s not enough. Another aspect that needs special attention is intellectual property rights.
In particular, in the process of registering a trademark, it is necessary, not only that a mark does not infringe earlier identical and/or similar trademarks, but also with all terms that have TSG (or PDO, PGI) certification, such as the name "Neapolitan Pizza”.
Although such new regulation implies many limitations for all subjects who have never adapted their product to the traditional characteristics of Neapolitan pizza, we believe that the new Regulation is acceptable because it finally gives proper protection to a typical and globally appreciated product, as well as to its vast public of consumers.
Drones and Privacy: an imperfect match
While until a few years ago the use of drones was the prerogative of video editors and the military sector, nowadays, thanks to technological evolution and lower costs, these small, compact-sized aircrafts increasingly represent recreational devices through which evocative landscape shots can be taken.
Precisely because of their ability to show the world as it has never been seen before, from an original and unusual perspective, the unmistakable buzzing sound perceptible dozens of meters away is also beginning to be heard in cities, beaches, or simply at organized events.
Any drone includes at least a GPS and a camera although the configuration can become more elaborate if required; in fact, more advanced drones also include cameras with night vision, 3D scanners, thermal imaging cameras, WiFi and Bluetooth devices, and so on.
So, one can wonder to what extent is the use of such devices lawful? The answer is not obvious especially when one considers that a drone is equipped not only with a camera, but also with internal memory capable of collecting and storing data and information about individuals in the area flown over.
The nature of such machines and the advanced technologies with which they are equipped make them inherently suitable tools for capturing "sensitive" data. It is clear that careless use of the drone, even if only for recreational purposes, could come into conflict with the right to confidentiality of the persons filmed and its privacy.
To answer this question, we must first look at European Regulation 2016/679, also known by its acronym GDPR.
Not all droners are experts in privacy so it could happen that those who decide to use one, even in a moment of recreational entertainment and fun among friends, are unaware that they have to apply certain rules and good practices to avoid a violation of privacy regulations, but not only that. In fact, it is good to keep in mind that careless use of the same could have civil as well as criminal implications.
Therefore, two different issues come into play in this regard: that of the privacy of the people filmed (in terms of data acquisition) and that of the protection of personal data (in terms of subsequent use).
First of all, as is well known, it is necessary to know that the right to privacy of third parties cannot be violated by filming from above private residences or places closed to the public. Such an infringement, in fact, will entitle the injured party to compel the video maker to destroy the collected images, preventing him from taking further videos, without prejudice to the right to take legal action to obtain compensation for any damages suffered (Art. 10 of the Civil Code).
The issue becomes more delicate when we not only make videos, but also decide to disclose the footage and images now in our possession by posting them, for example, on our social networks or on the Internet. In such cases, it is essential to take all the measures imposed by the GDPR in order to minimize the risk of incurring the heavy penalties that the Italian Data Protection Authority might impose.
First of all, the Italian Data Protection Authority emphasizes that when flying a drone equipped with a camera in a public place such as parks, streets or beaches, one should avoid invading people's personal spaces and intimacy or, in any case, avoid capturing images containing personal data such as license plates of cars or residential addresses.
Not only that. In fact, If the decision to disclose the footage is made, as a first step, it is essential to collect consent to the publication of the images from the subjects involved, which is the legal basis for making their distribution lawful (Art. 6 GDPR). Such consent is not required only if, due to the distance of the filming, the faces of the subjects are not recognizable or, in any case, the same are obscured.
The GDPR also considers lawful the filming necessary for the execution of the contract concluded with the person that purchases a product delivered to his or her home by the seller by means of a drone.
The pilots, moreover, should always observe the principles on data processing set forth in Article 5 of the GDPR, which requires compliance with the adequacy, relevance and non-excessiveness of data with regard to the purposes for which they were captured. The Droner, therefore, in compliance with the aforementioned principles should favor proportionate technology and prefer anonymization techniques that, through blurring or other graphical effects, allow images to be automatically obscured in order to avoid identification of individuals where it is not necessary.
For more shrewd pilots, it is emphasized that it is extremely risky to justify the collection of sensitive data by invoking the non-applicability of the GDPR to the processing of personal data “carried out by a natural person for the exercise of activities of an exclusively personal or domestic nature" (Art. 3 GDPR). Indeed, the judges of the Court of Justice of the European Union interpret this rule narrowly and, therefore, as a general rule this article does not constitute an exemption from the GDPR (Judgment of the Fourth Chamber, December 11, 2014, František Ryneš v. Úřad pro ochranu osobních údajů).
Finally, it must not be forgotten the criminal aspect into which the pilot who decides to make more brazen use of the drone by procuring footage, visual or sound, containing data pertaining to the daily routines of people taking place in private residences may fall. The risk is to be punished with imprisonment from six months to four years (Articles 614 and 615 bis of the Criminal Code).
Even in this case, the law is more severe when the filming is unlawful, referring to those taken without the consent of the person filmed. Thus, once again emerges the importance of the acquisition of consent, which could be for the Droner the only exemption to avoid a certain conviction, together with objective reasons of a higher order that justify such filming (e.g., public order requirements).
In conclusion, it can be highlighted that privacy protection must be carefully evaluated because of the enormous technological potential of drones and the underlying economic interests. It is easy to speculate that the increasing use of drones in activities with high social impact will make the issue of protecting people's privacy increasingly prominent. Common sense and precaution, after all, remain the best principles in the responsible use of new technologies. It would be sufficient to refer to them to resolve many doubts and disputes.
Intellectual Property on Memes
Who among us has never received an image or photograph of a character (even a well-known one), accompanied by a caption capable of making us laugh?
Well, these elements are commonly referred to as “Memes”[1] and have the capacity to spread rapidly by mass communication media.
Beyond the communicative capacity of such Memes, one might wonder whether they receive any form of legal protection or if they are in the public domain and therefore freely usable by web users. To answer this question, it is first appropriate to understand the legal framework of Memes.
As mentioned, the Meme is nothing more than an ironic re-elaboration of an original work (usually photographic) already protected by copyright. It follows therefore that Meme - if has the degree of creativity required by copyright law - can be considered a derivative work (pursuant to Article 4 of Law no. 633 of 22 April 1941[2]), i.e. a work created on the basis of a pre-existing work.
This means that the owner of the rights on the main work - hence on the photograph or image created - will have the right to rework it and create derivative works, including Memes, and exploit them for commercial purposes.
Moreover, on the basis of the above considerations, anyone who intends to create and/or commercially exploit Memes will have to previously obtain the owner's permission of the original work, thus requesting a licence against payment of a fee.
But then one has to wonder why such Memes circulate on the web and/or via Whatsapp freely and without any licence?
As far as the European Union is concerned, the answer to this question is to be found in European Directive No. 2019/790 on Copyright in the Digital Single Market, which aims to harmonise the EU copyright framework in the field of digital technologies and in particular the Internet.
In particular, Article 17, VII paragraph, of that Directive states as follows: "Member States shall ensure that users in each Member State are able to rely on any of the following existing exceptions or limitations when uploading and making available content generated by users on online content-sharing services:
- quotation, criticism, review;
- use for the purpose of caricature, parody or pastiche”
It is therefore expressly provided that Member States may use and apply - within certain limits - exceptions allowing free use of copyright protected content via the Internet.
The ratio of the mentioned article is evidently to grant a discrete freedom for web users to share digital content, also protected by copyright, with the sole condition that such use must not even indirectly have an intent / purpose of profit, but only a satirical purpose.
In Italy, the right of satire, although not expressly provided by law, has found widespread application in case law over time[3]. The Meme can, therefore, be considered as an expression of right of satire, which, however, must be exercised within a well-defined perimeter, i.e. in the total absence of profit-making purposes.
This is because the owner of the rights over the Meme holds all the rights of economic exploitation over the work itself and, consequently, can prevent anyone from making a profit from their use. Indeed, there have been several legal actions commenced by Meme’s rights holders, especially in the United States[4].
In conclusion, due to the extremely quick digital evolution and the Internet world we are now witnessing, the outlined intervention of the European legislator can only be welcomed, which aimed at facilitating the exchange of content between Internet users and safeguarding their freedom of expression.
This European directive seems to have managed for the time being in properly balancing the freedom of expression of web users and the protection of copyright. We hope, in this regard, that the national legislator will follow this direction.
[1] “Digital memes are viral content that can monopolise the attention of users on the web. A video, a drawing, a photo becomes a meme when its "replicability", which depends on its ability to arouse an emotion, is maximised.” This is the definition of “Meme” provided by “Treccani” Dictionary.
[2] "Without prejudice to the existing rights on the original work, the elaborations of a creative character of the work itself, such as translations into another language, transformations from one into another literary or artistic form, modifications and additions constituting a substantial remake of the original work, adaptations, reductions, compendia, variations not constituting an original work, are also protected."
[3] Supreme Court no. 23144/2013: [...] satire constitutes a corrosive and often merciless modality of the right to criticism and can also be realised by means of the artistic image, as in the case of cartoons or caricatures, consisting in the conscious and accentuated alteration of the somatic, moral and behavioural features of the persons depicted. It differs from the chronicle in being removed from the parameter of truth in that it expresses, by means of paradox and surreal metaphor, an ironic judgement on a fact, remaining subject to the limit of continence and functionality of the expressions or images with respect to the purpose pursued. In the formulation of the critical judgment, expressions of any kind may therefore be used, even those damaging to the reputation of others, provided that they are instrumentally linked to the manifestation of a reasoned dissent from the opinion or conduct targeted and do not result in a gratuitous and destructive attack on the honor and reputation of the person concerned."
[4] Recalled in this regard is the case of Pepe the Frog, a cartoon character created by cartoonist Matt Furie. The author sued the website Infowars and its owner in 2014 for having used the image for the purpose of creating memes with a sexist, xenophobic and even racist background. Furie was awarded $15,000 in compensation in 2019.