A Technical Text can be a Copyrightable Work (IP Court of Milan, Judgment no. 6057/2014)

A technical text can be protected from unauthorised use under copyright laws. In fact, the lower degree of freedom enjoined by the author may make it easier to obtain copyright protection.

This is the gist of a recent ruling of the IP Court of Milan in the dispute between the author of an online essay on so called test-cards and a third party who had reproduced the entire document and published it on a website of his own without permission.

The defendant did not deny having copied the essay, but objected that it lacked novelty and originality, stating that it merely gathered information already contained in technical manuals available to the public. He also argued that the plaintiff had not provided proof of authorship.

The Milan IP Court, relying on a Court expert’s report, found that, although the work dealt with a well-known and well-documented technical subject, several elements (the style, the text, the overall composition of the piece, the pictures and captions used) gave it a degree of originality, while there was no evidence provided by the defendant suggesting that previous works on the subject showed the same expressive features.

The Court pointed out that, in order to get copyright protection under Italian law, it is sufficient for a work to present a minimal level of creativity, especially for creations of a technical nature, in which choices are partially limited to the contents, while the author enjoys some degree of freedom by way of expressing them.

The Court also commented that in the matter of copyright, the concept of “creativity” does not coincide with absolute originality and novelty, but refers to the personal, individual form of expression of a given kind of work. Consequently, creativity for the purposes of copyright law may not be ruled out merely because a work consists of notions that are part of the common knowledge of experts in the relevant field. Creativity is not constituted by an idea in itself, noted the Court, but by the way that idea is expressed, so that the same idea can be the basis for different works of art.

Finally, the Milan judges found that authorship in the case at hand was proved by the fact that the plaintiff was mentioned as the author on the website where the work was published originally. Under Italian copyright laws, the person indicated as the author “in accordance with general usage” is presumed to be the author, unless proved otherwise.

Based on the above, and it being undisputed that the essay had been literally copied, the Court ordered the defendant to pay damages, to remove the unauthorised copy from his website and to put the Court’s order on display on the same website in a prominent manner for 15 consecutive days.

An interesting thing to note is that, in order to date the work en suit and assess its originality, the court-appointed expert used the WayBack Machine free online service, which archives past versions of websites worldwide, and the Court agreed to this, making its own conclusions based on the evidence presented.