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NATIONAL LAW IMPLEMENTING THE ENFORCEMENT DIRECTIVE
A. PRIMARY AND SECONDARY LAW
The Enforcement Directive was implemented in Italy through the legislative decree No. 140 of March 26, 2006, which modified and introduced several provisions to the already existing laws on copyright, industrial property and public security. In particular, the Enforcement Directive was implemented by modifying the following pieces of legislation:
Law No. 633 of April 22, 19411 (also known as the “Copyright Act”);
b) Legislative Decree No. 30 of February 10, 20052 (also known as the “Industrial Property Code”);
c) Royal Decree No. 733 of June 18, 1931 (also known as “Consolidated Law on Public Security”).
The Legislative Decree 140/2006 also modified the consolidated law on public security by introducing Article 85bis. This law prohibits the introduction, installation or any other use in any public place of devices or equipment used to record, reproduce, transmit or fi x on any technical support, any work that is protected by intellectual property rights. Furthermore, the owner or manager of the public place or his agent must “give warning of the prohibition” by positioning “an appropriate number of clearly visible signs” in the public place in which the performance takes place.
B. TRANSPOSITION ISSUES
The Italian legislator implemented the Enforcement Directive by enacting the Legislative Decree No. 140/2006 amending several provisions of both the CIP and the CA. Although the Enforcement Directive appears to be mostly implemented, some of its provisions are lacking in the Italian regulation. Specifically:
– as to the matter of damages, Article 158 of the CA does not specifically grant the rightholder the possibility to obtain recovery of profi ts made by the infringer even though this principle can be deducted implicitly from the wording of this Article;
– as to the right of information, the Italian legislator did not implement Article 8, para. 3, of the Enforcement Directive with particular regard to “the protection of confi dentiality of information sources or the processing of personal data”;
– as to provisional and precautionary measures, the Italian regulation concerning the timeframe within which the parties shall initiate the proceeding on the merits partially differs from the provision provided for by Article 9, para. 5, of the Enforcement Directive (for further information on that issue, see below paragraph IX.L);
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