Le opere dell'industrial design tra diritto d'autore e tutela come modelli industriali: deve cambiare tutto perché (quasi) nulla cambi?

Before D.lgs. 95/2001, implementing in Italy the Directive 98/71/CE on legal protection of designs, “works of applied art” were protected, pursuant to article 2.4 of the Italian Copyright Law, only if they had an artistic value which was separable from the industrial nature of the product itself. The “severability” principle has been interpreted in various manners over the years by Italian scholars and courts. The latter, and part of Italian scholars, understood “severability" as the possibility to reproduce the work on medium other than the product to which it had originally been associated. This interpretation always led to exclude the severability in case of three-dimensional works of industrial design and reserved those works the sole protection under the then-in-force Italian Design Law. On the contrary, according to this interpretation, two-dimensional designs were always considered separable from the product itself and so deserving protection under Italian Copyright Law. After 95/2001 Decree works of industrial design has been included in the list of works protected by Italian Copyright Law. However, also in the new legal system, copyright protection is not for every work of industrial design: according to art. 2.10 of Italian Copyright Law, industrial designs can be protected as works of art only if they have “originality and artistic value in themselves”. Various interpretation of the “artistic value” criteria were proposed by scholars and courts. The Author proposes her own interpretation of the “artistic value”. Designs which can be considered a real novelty if compared with the prior art have “artistic value in themself”.