The Art Law Review: Italy

Introduction

The pattern of Italian art law is heterogeneous and appears as a complex medley of several subjects, autonomously regulated by different laws. First, the civil law definition of artwork is, to a broader standpoint, the one of movable goods. The Civil Code (CC) provides two general categories: 'simple' and registered movable goods.2 Artworks fall under the definition of simple movable goods. In other words, no public register of artworks exists.3 Thus, regardless of their value, artwork can be sold without formalities of any kind, and the transaction would be valid. Moreover, even if the CC sets remedies in favour of the good faith buyer against forgeries, when a dispute over the attribution or authenticity of a work arises, difficulties emerge in determining in a civil trial whether the claim is grounded (see Section IV). Second, under administrative law, when artworks have specific characteristics (see Section III), they are subject to special rules: when deemed cultural goods, artworks receive recognition for their inherent cultural value within national cultural heritage (regardless of whether their owners are private persons, businesses or public bodies).

The recent reform of the Cultural Heritage Law (CHL)4 has shown a softened approach towards the international circulation of art, raising the time threshold for deeming a work a cultural good (see Section III). However, the practical implementation of the reform is still pending, and the consequences are illustrated further below (Section VIII). Under copyright, artworks are carriers of rights for the artist, with different scope and duration (see Section VI). The latest jurisprudence on this matter has given an interesting perspective on the protected subject matter and the relationship between artists' estates and moral rights. However, the lack of specific rules for artworks (e.g., regarding Nazi-looted art, immunity from seizure and alternative dispute resolution) raises the possibility of uncertainties in dealing with art. This chapter illustrates the recent developments in the field of art transactions and legal disputes in art, and concludes that the current framework of art law in Italy is not efficient, notwithstanding the enormous number of rules that regulate the different subjects.5

The year in review

In addition to specific themes discussed in this chapter, the covid-19 outbreak has impacted the art market's functioning, causing the market to turn to digital transactions. This has led to a peculiar effect from the legal perspective related to the fulfilment of obligations in terms of compliance with e-commerce regulation and the necessary slowdown of the administrative procedures related to the export of artworks (see Section III.ii), which has impaired the operators' responsiveness to the needs of the market.

Art disputes

i Title in art

The Italian system sets a difference between 'simple' artworks and artworks of cultural interest under the CHL. Generally, the title of ownership to artworks, when simple movable goods, passes from seller to buyer through the agreement upon the sale. When a delay on the payment or a payment via instalments is agreed, the parties can subject the transfer of ownership to the full payment through a retention of title, which implies that, whereas the title is transferred to the buyer only upon the payment of the price in full, the risks concerning the goods pass on to the buyer upon consignment under Article 1523 of the CC. This is an exception to the general rule of res perit domino6 under Article 1465 of the CC. The retention of title is customary in the art market.

Another relevant issue concerns the good faith of the buyer in the case of purchase from the non-owner (see Section III.ii) and its relationship with adverse possession. In the Italian jurisdiction, adverse possession7 might happen in three different ways. The general rule on possession of movable goods is that the buyer from the non-owner receives title to the item immediately upon consignment, if he or she is in good faith at the consignment and obtains a theoretically valid entitlement to ownership.8 Good faith shall be interpreted as unawareness (without gross negligence) of infringing others' rights under Article 1147 of the CC. If the possessor or buyer was in good faith upon the acquisition but has no theoretically valid title (or cannot prove such title), he or she acquires ownership after a 10-year continued possession.9 Finally, if the buyer had no title and was in bad faith, he or she becomes the owner after a 20-year possession under Article 1161(2) of the CC. For the application of adverse possession under Article 1161, possession shall comply with specific requirements during the term, such as consistency and publicity, and shall be undisturbed, uninterrupted and acquired in a non-clandestine and non-violent fashion. The Supreme Court recently stated that non-clandestineness and publicity refer to the public exercise of possession emphasising that, concerning artworks, a way to get to such a result is through exhibitions and publications regarding the artwork involved in the dispute.10 This case also shows that, in successions, the heir shall give evidence of the good faith of the deceased buyer (from whom he or she inherited the item), and that lacking this evidence, the presumption of good faith under Article 1147(3) of the CC might not apply in specific historical circumstances.11

The case of cultural goods is more articulated. The sale of cultural goods is subject to a specific procedure, which also refers to privately owned goods. The sale of publicly owned cultural goods is subject to prior verification of the cultural importance of the items, under Article 12 of the CHL. Only if the result of such verification is in the negative, can the sale take place. Otherwise, any sale lacking prior verification is deemed void. Indeed, the principle of good faith outlined above does not apply to goods either stolen or illegally removed from collections belonging to the state or other public entities: no one can ever acquire the ownership of an asset that is part of the state's (or other public entities') patrimony and that was either stolen or otherwise illicitly disposed of by a public officer. The same exception applies to art, antiques or collectibles belonging to ecclesiastical entities,12 as these receive the same treatment as publicly owned goods under Article 10(1) of the CHL. In a case regarding two church-owned paintings being illegally sold by the priest in charge of the church to a dealer who then resold them to a third party in good faith, the Supreme Court held that the final buyer could not legitimately claim that he had acquired the ownership of the paintings because of the lack of title to the artworks in the first sale.13

On the other hand, privately owned cultural goods can be sold, but the state has the right of pre-emption. Thus, the seller must notify the Ministry of Cultural Heritage of the sale within 30 days of it taking place, according to Article 59 of the CHL, and the state has a 60-day term from this notification to exercise the pre-emption right.14 During this period, the sale is conditionally suspended and the item cannot be consigned (and the title does not pass) to the buyer. Failing to comply with such provision voids the sale of the item.

ii Nazi-looted art and cultural property

Nazi-looted art

Italy has no specific provision on Nazi-looted goods. Nevertheless, it participates in several international instruments on restitution of Nazi-looted goods, which have recently been applied implicitly by the jurisprudence.15

Cultural property

In 2017, the CHL was subject to important reforms involving (1) the time threshold over which an item can be deemed culturally important, which has changed from 50 to 70 years after creation by a non-living artist, and (2) the introduction of a minimum monetary threshold. Since 2017, privately owned goods that were either made more than 70 years previously by a non-living artist or that have a monetary value of less than €13,500 may be exported on a permanent basis from Italy if the competent Export Office of the Ministry of Cultural Heritage16 grants an export permit. These goods do not need any export permit (however, see below on works created between 50 and 70 years previously by a non-living artist), but if they are exported, they must be accompanied by a unilateral declaration by the exporter detailing their characteristics, the author and the year of creation. The export declaration must be filed through the online system available on the website of the Ministry to the competent export office, which shall acknowledge receipt of the declaration by applying a stamp and delivering the original to the interested party.

Goods over the thresholds undergo a complex export procedure, should their owners be willing to export them. When released for circulation within the EU, the export permit is named a 'free circulation certificate'.17 If the goods need to be exported outside the EU, in addition to the free circulation certificate, the export office must issue an export licence.18 If the export licence is missing, the item could be seized at the border by the competent customs authority. The interested party shall file an export permit request, containing, among other details, the value of the item under scrutiny, and physically deliver the item to the export office to allow its inspection. After this examination, the export office will either release the export permit, or deny it if the export office deems the item to have particular cultural importance. In some cases, the export office might propose to the Ministry that it exercise the right of mandatory purchase under Article 70 of the CHL, thus obliging the private owner to sell at the value indicated in the export permit request (unless the owner withdraws the request of export permit before the Ministry has exercised the right of mandatory purchase).19 On 6 December 2017, under Ministerial Decree No. 537, the Ministry set forth the criteria that shall be applied by the export offices while evaluating whether to grant an export permit. These criteria refer to the aesthetic quality of the goods, their rarity, their provenance from a relevant collection and their historic relevance, and their formulation allows wide discretion to the export offices. The proceeding shall be concluded within 40 days of presentation of the item to the export office. However, this time frame is not mandatory.

If the export permit is about to be denied, the interested party receives a preliminary communication of denial by the export office, and is entitled to file observations that might persuade the export office to release the permit.20 If the export office issues a denial, the private party is entitled to file a petition within 30 days of the denial to the Ministry's General Director, under Article 69 of the CHL. Otherwise, the private party has the right to appeal the denial before the competent administrative court, within 60 days of the denial. The party has the same appeal right against the decision of the Director under Article 69 of the CHL.21 The administrative court does not assess whether the goods have particular cultural significance, but whether the public administration correctly applied the law and made appropriate use of its discretionary power (e.g., by providing adequate motivation to the export denial, based on thorough art history research).

In the case of goods created between 50 and 70 years previously by a non-living artist, for which a self-declaration is filed, the export office might retain them as having exceptional cultural significance for the completeness and integrity of Italy's cultural heritage. The export office can request that the General Director of the Ministry classifies the artwork as cultural property and, consequently, ban the export of that artwork.

Another reform entailed the export process, specifically relating to monetary thresholds. Indeed, this provision's operativity was suspended by the Ministerial Decree of the Ministry of Cultural Heritage of 17 May 2018. The Ministerial Decree of the Ministry of Cultural Heritage of 31 July 2020 amending the Ministerial Decree of 17 May 2018 allows the application of the minimum monetary threshold of €13,500 and facilitates the enacting of e-passports for artworks, which were both introduced by Law No. 124 of 4 August 2017.22

In terms of contracts involving cultural property and public administration, in a ruling of the Administrative Court of Lazio (Rome),23 the Court ascertained the right to unilaterally rescind the contract between the public administration (the Ministry of Cultural Heritage) and a private party under Article 11 of Law No. 241/1990 regarding cultural goods for reasons of public interest, with the obligation on the public party to refund the private party for the costs incurred in entering into the agreement.

iii Limitation periods

The ordinary term set forth by Article 2946 of the CC is 10 years. No special statute of limitation applies to art disputes, even for art misappropriated during the Nazi era.

iv Alternative dispute resolution

In recent years, some forms of alternative dispute resolution were made compulsory prior to starting a proceeding before the civil court in specific subjects. Among these, claims over title to goods fall under the scope of applicability of mandatory mediation under Article 5(1) bis of Legislative Decree No. 28 of 4 March 2010.

Arbitration has recently become a useful tool in art disputes. However, Article 33(1)(t) of Legislative Decree No. 206 of 6 September 200624 prevents professionals from establishing a standard clause on arbitration while negotiating with a consumer, unless they can show in court that the consumer negotiated and agreed upon that clause. Thus, generally, the presumption on the abusive nature of the arbitration clause narrows the scope of the application of arbitration to art transactions, where a consumer is involved.25

Fakes, forgeries and authentication

Under Article 1477 of the CC, the seller must warrant to the buyer that the item has not suffered any wrongdoing able to sensibly decrement the value of the item. The jurisprudence applies this principle to the sale of artworks.

If the buyer discovers that the art, antique or collectible is a forgery, the following claims and remedies are available.

  1. Termination of the contract because the asset sold is different from the asset that was promised in the contract.26 The claim is time-barred for 10 years after the sale.
  2. Termination of the contract based on alleged wrongdoing to the purchased item;27 the claim is time-barred if the defect was not communicated to the seller within eight days of its discovery and within one year of delivery of the item to the buyer.
  3. Termination of the contract based on alleged lack of promised or essential qualities;28 the claim is time-barred if the wrongdoing was not communicated to the seller within eight days of its discovery and within one year of the delivery of the item to the buyer, provided that the absence of the required quality exceeds usual tolerance limits.
  4. Cancellation of the contract based on mutual mistake or wilful misconduct.29 The claim is subject to a five-year limitation period, starting from the date the mistake or the wilful misconduct is discovered by the claimant.

All the above remedies are likely to include damages.

Art market operators shall provide to the buyer a certificate of authenticity and provenance under Article 64 of the CHL.

The role of artists' estates and experts in discovering forgeries (or deeming works authentic) is debated. As far as their opinion is grounded on a diligent activity of analysis, the result of their scrutiny is free due to the constitutional right of opinion,30 and these entities cannot be obliged to convene on the attribution of a work or to publish a work in a publication (e.g., a catalogue raisonné).31 Moreover, the recent Dadamaino case32 illustrates the difficulties in striking the balance between expert witnesses' opinions and artists' estates' opinion of authenticity.

Art transactions

i Private sales and auctions

The European Anti-Money Laundering (AML) Directive33 explicitly includes art galleries and auction houses among the entities obliged to carry out anti-money laundering controls. Thus, art galleries and auction houses involved in transactions (single or multiple) whose values amount to €10,000 or more are subject to anti-money laundering legislation, as are the persons who either preserve or trade in works of art or act as intermediaries in the trade of works of art, when such activity is carried out within freeports and the value of the transaction (even if divided) or of any related transactions is equal to or greater than €10,000.34 Legislative Decree No. 125 of 4 October 2019 implemented the AML Directive into the national jurisdiction.

ii Art loans

Art loans are subject to authorisation by the Ministry of Cultural Heritage if the work of art is of cultural interest, under Article 48 of the CHL. Art-backed loans can only be granted by intermediaries authorised by the Bank of Italy and are subject to supervisory controls.

No special rule relates to immunity from seizure, notwithstanding several bills of law that have been proposed in recent years (the last of which, DLL S.358, was presented to the Senate on 18 May 2018).35

iii Cross-border transactions

Regulation (EU) 2019/880 sets forth the conditions for the introduction of cultural goods within the EU territory and the conditions and procedures for their import, to protect cultural heritage against illicit trade in cultural goods, specifically when aimed at financing terrorism. The Regulation foresees a system of import licences for specific categories of cultural goods and importer statements for other categories of cultural goods.

Cultural goods either created or discovered in the customs territory of the EU (covered by Directive 2014/60/EU) fall outside the scope of the Regulation. The import licensing system provided for by EU Regulation 2019/880 will enter into force at the date on which the electronic system referred to in Article 8 of the same Regulation becomes operational or at the latest from 28 June 2025.

Finally, the UNIDROIT Convention of 1995 on stolen or illegally exported cultural objects has been ratified by Italy by Law No. 213/1999 and is currently in force. When applicable, it obliges the possessor of a stolen cultural object to return it to its rightful owner, entitling the good faith acquirer to a compensation.36 The acquirer has to prove his or her good faith.37

Regarding recent legal developments in cross-border transactions of cultural property, see Section III.ii.

iv Art finance

Non-possessory liens

Law No. 119 of 30 June 2016 introduced the possibility for professional dealers to create non-possessory liens to secure credits related to their business activity (which are not private loans). These can only be granted over movable property intended for their business activity. This lien must be registered in the online register managed by the Revenue Agency of the Ministry of Economy and Finance.

VAT regime

The Internal Revenue Service (IRS) recently affirmed that sculptures created with 3D printers are not subject to the special 10 per cent VAT regime that benefits artworks. According to the IRS, since 3D sculptures are not cast entirely by the artist's hand, they cannot be considered artworks, giving a narrow interpretation of the definition of artwork stipulated in Law Decree No. 410 of 23 February 1995.

Anti-money laundering

Under the AML Directive, art galleries and auction houses have specific transparency obligations involving clients and art transactions. These include an obligation to carry out adequate verification on clients when transaction values total €10,000 or more (even in the case of multiple related transactions) and signal any suspicious activity to the Bank of Italy (the controlling authority).

Artist rights

i Moral rights

Under Articles 20 to 24 of Law No. 633 of 22 April 1941 (the Copyright Law (CL)), moral rights vest in the author from the creation of the work. Moral rights under Italian law are perpetual, non-waivable and unassignable. The rights might be enforced by the next-of-kin of the author following the hierarchy38 outlined by Article 23 of the CL, after the author's death. The enforcement of moral rights after the author's death might not be assigned or transferred to any third party, including artists' estates, nor through a specific disposal of the author in his or her will. However, as the Supreme Court recognised,39 even if the artist's estate has no moral rights, it has and can enforce its own reputational right, defined as the reputation in a specific social context of the estate, connected with the protection of the artist and diffusion of the correct knowledge of his or her work.

The right of attribution under Article 20 of the CL might be enforced in the positive or in the negative, as a right to refuse the attribution of a specific work,40 as well as by the subject indicated in Article 23 of the CL.41 Recently, the Court of Rome42 affirmed that the right to claim against false attribution might be enforced by the heirs only through the personal right to name under Article 8 of the CC, and not through the claim for declaratory judgment related to the false attribution under copyright law.

Article 20(2) of the CL finally provides a specific author's right regime for works of architecture. While authors of architectural works may not oppose amendments carried out during the realisation of the project or incurred on the completed physical structure, they are entitled to the study and enaction of such amendments, in the case of acknowledgment of the important artistic value by the competent governmental authority.

ii Resale rights

In 2019, the Italian Society of Authors and Publishers (SIAE), which is in charge of the collection and distribution of resale rights in Italy, published guidelines on resale rights directed towards art market operators and artists. The document aims to clarify the operativity of resale rights and the definition of 'first sale' for the purposes of the application of the law.43 Indeed, the applicability of resale rights in the primary market was previously unclear; for example, in the case of consignment by the artist to a professional seller with no agency.44 The guidelines affirm that if, in a consignment without agency, the consignee pays an instalment to the consignor prior to the sale to a third party, the transaction between the professional and the third party is subject to the application of resale right, since the transaction between the consignor and the consignee voids the consignment agreement and is considered as a proper sale from the artist to the professional, even if the operation as a whole was meant to be the first sale of the work from the artist to the third party.45

An interesting aspect involves the interpretation of 'design' in the field of artists' resale rights. Indeed, it is debated whether a design product might have artistic value for the purpose of copyright protection (see Section VI.iii), and this reflects on its protection under resale rights. The strongest opinion is in the sense that design works might not be subject to resale right (alternatively, the project might be subject to this right as it could qualify as a figurative work drafted by the author).46 However, because Article 145(2) of the CL provides that copies of works might be protected under resale right if the copies are unique pieces or few in number, numbered, signed or otherwise authorised by the author, other authors47 have stated, when the object fulfils the requirement, they could be considered works covered by resale right. The matter is still unresolved, but the SIAE seems to follow the second interpretation.

iii Copyright

Exceptions and limitations to copyright

Under Article 15 of Law No. 37 of 3 May 2019, amending Article 71 bis of the CL, the acts of reproduction, communication and making available to the public, distribution and lending of copyrighted works are free for persons who are blind, visually impaired or otherwise print disabled, subject to their adaption in an accessible format copy.

Digital Single Market Directive

The national implementation of Directive No. 790/2019 (the Digital Single Market Directive) is still pending. Article 14 of the Directive obliges Member States to ban copyright protection for material reproductions of works in the public domain where the reproduction is not original in the sense that it is the author's own intellectual creation.

Jurisprudence

The sale of the physical single object does not entail the transfer of copyright, which requires an express act of the copyright holder,48 which should be proven in writing.49 Accordingly, the Court of Milan50 recently stated that the production of gadgets in an exhibition organised by a museum representing artworks under copyright requires such prior written consent by the rights holder.

Moreover, the jurisprudence of recent years has shown keen attention on copyright in relation to artworks. The general requirement of protection of artworks under Italian copyright is their originality, meaning the nature of the 'author's own intellectual creation'.51 Italian courts have set some specific requirements that apply to artworks, interpreting the concept of originality. In a preliminary ruling of 15 June 2017, the Court of Milan interestingly asserted that the evaluation of the artistic value shall be carried out in reference to objective parameters of the perception of the work within specific cultural environments, such as the public and institutional recognition of aesthetic and artistic qualities, the public exposition, the publication in specialised journals and the awarding of prizes. All these factors do not attribute per se artistic value but show the recognition of the work as an artistic work protectable by copyright. More recently, the Court of Bologna52 applied a similar reasoning to design objects, stating that to deem a design object protected subject matter under Article 2, No. 10 of the CL, the artistic value53 could be acknowledged through objective parameters such as the recognition of aesthetic and artistic qualities by specific cultural and institutional environments, the exhibition in museums, the publication in specialised journals, the awarding of prizes, the acquisition of an unexpected market value that overcomes functionality, or the creation by a famous artist.

In Ruling No. 2039 of 26 January 2018,54 the Supreme Court listed some specific criteria to be applied to ascertain whether a subsequent artwork constituted plagiarism of a former one with specific focus on abstract and contemporary art. The Court emphasised the following criteria:

  1. the creative originality, even if just minimal, of the original artwork;
  2. that the judgment shall rely upon a complex and synthetic (not analytical) evaluation of the works, comparing the essential elements of the works themselves, to evaluate the holistic result, or the effect as a whole;
  3. the fact that plagiarism should be excluded if two works originating from the same idea have different essential traits, which characterise the expressive form; and
  4. plagiarism subsists if a work does not show any semantic gap providing a different and proper artistic meaning, copying the creative elements, since mere contrasting details with respect to the original would not suffice.

Trusts, foundations and estates

Artists' estates usually exercise their functions as non-profit legal entities, namely associations and foundations. Legislative Decree No. 117 of 3 July 2017 (the Code of the Third Sector) has introduced some fiscal advantages towards non-profit legal entities with a general interest (including cultural) purpose. Moreover, while associations and foundations are normally barred from carrying out pre-eminent commercial activity, third-sector entities may carry out such activity without incurring a heavier fiscal burden.

The CHL prescribes that cultural goods, over 70 years after their creation by a non-living artist, as described by Article 10(1) and 10(5), belonging to non-profit private entities are subject to the same conditions as publicly owned goods. Thus, when an artwork created more than 70 years ago55 by a non-living artist belongs to an association or a foundation it is automatically considered a cultural good.56

For the recognition of estates' rights concerning reputation and moral rights of the artists, see Section VI.

Outlook and conclusions

Finally, to summarise, several unresolved issues are at stake. On one hand, the large discretionary power of the administration, whose best example lies in the non-mandatory term for delivery of the free circulation certificate, and the delay in the implementation of the reform of 2017,57 has raised uncertainties on the application of the administrative law concerning cultural goods. Indeed, the circulation of artworks suffers delays due to the lack of a mandatory term (and there is no compensation for the private party that bears the consequences of a delay by the public office), and the long-lasting absence of a general rule of law implementing the reform of 2017 has generated different interpretations by offices, increasing the confusion of art owners and market operators on the scope of the form. On the other hand, the lack of a specific provision of law on seizure of artwork in specific situations (such as in the case of Nazi-looted artwork) generates criticality in the interpretation of the principles of civil law (such as possession vaut titre or the good faith of the third-party buyer). The above-mentioned examples illustrate that, despite artworks generally being considered as common items from a civil law viewpoint, they happen to be subject to a peculiar application of the law, mostly when their cultural value is at stake. On the other hand, Italian copyright law often needs a specific interpretation by the court, to adapt to the peculiarity of artworks (and single genres) among other copyright-protected subject matter.

In conclusion, it could be questioned whether a holistic reform of the art law sector in Italy could be an effective solution to the lack of certainty that, unfortunately, affects the interpretation of the law for these special (unless common) goods.

Footnotes

1 Giuseppe Calabi is managing partner at CBM & Partners – Studio Legale.

2 Articles 812 and 815, Civil Code (CC).

3 Apart from specific lists, such as the Carabinieri Art Squad database, which relates to lost or stolen items.

4 Legislative Decree No. 42 of 22 January 2004.

5 Reference to primary sources refers to Italian sources, unless otherwise stated.

6 That is, all the risks concerning an item (including perishment) belong to the owner of the item itself.

7 Article 1140 et seq., CC.

8 Article 1153(1), CC.

9 Article 1161(1), CC.

10 Supreme Court, No. 16059 of 14 June 2019.

11 The case in question referred to a Nazi-looted artwork inherited by the possessor from his father.

12 Article 828, CC.

13 Supreme Court, No. 4260 of 7 April 1992.

14 Article 61(1), CHL.

15 See Section III.i, Ruling of the Supreme Court No. 16059 (see footnote 10).

16 Export of cultural goods is monitored and authorised at a local level by the export offices located throughout Italy.

17 Article 68, Italian Cultural Heritage Code.

18 id., Article 74.

19 Article 70(2), CHL.

20 Under Article 10 bis of Law No. 241 of 7 August 1990.

21 For instance, in the case of confirmation of the denial of the export permit.

22 Pending registration, by the Italian Court of Auditors, at the time of writing.

23 Administrative Court of Lazio (Rome), No. 3402 of 14 March 2019.

24 The Consumer Code.

25 However, recent initiatives have been carried out on alternative dispute resolutions in the art sector where transactions between professionals are involved.

26 Article 1453, CC; see Court of Cassation, 27 November 2018, No. 30713.

27 Article 1490 et seq., CC.

28 id., Article 1497.

29 id., Articles 1429 and 1439.

30 Article 21, Italian Constitution.

31 Court of Milan, 15 February 2018, No. 4754.

32 Court of Milan, 15 July 2020, No. 5070.

33 Directive (EU) 2018/843 of the European Parliament and of the Council of 30 May 2018.

34 Article 3, Paragraph 5(c), EU Anti-Money Laundering Directive.

35 www.senato.it/leg/18/BGT/Schede/Ddliter/49597.htm (accessed on 17 September 2020).

36 Law No. 213/1999, Article 4, Paragraph 1.

37 id., Article 4, Paragraph 2.

38 Court of Milan, 14 July 2011.

39 Supreme Court, 26 January 2018, No. 2039.

40 Court of Rome, 8 March 2012.

41 Court of Turin, 26 February 2010.

42 Court of Rome, 26 June 2019, No. 13461. See Court of Milan, 15 February 2018, No. 4754, whose stake is the opposite, stating that the claim of a declaratory judgment of authenticity is possible if grounded on indisputable factual and scientific elements.

43 SIAE – Sezione OLAF, Diritto di seguito – Vademecum, version dated 28 April 2020; available in Italian at www.siae.it/sites/default/files/SIAE_OLAF_Vademecum_DDS.pdf (accessed on 22 September 2020).

44 This is a frequent scenario in the primary market. This wording refers to the case of consignment with no power to act in the name of the consignor under Article 1705, CC.

45 See SIAE (footnote 43), p. 20.

46 Rosaria Romano, 'L'Opera e l'Esemplare nel Diritto della Proprietà intellettuale' (2001), in Pubblicazioni dell'Istituto di diritto privato dell'Università di Roma, 60, p. 39.

47 Luigi Carlo Ubertazzi, Commentario Breve alle Leggi su Proprietà Intellettuale e Concorrenza (Wolters Kluwer, Milan, 2019), p. 2255.

48 Article 109, CL.

49 id., Article 110.

50 Court of Milan, 15 January 2019, obiter dictum.

51 European Court of Justice, 7. Infopaq International A/S v. Danske Dagbaldes Forening, Case C-5/08.

52 Court of Bologna, 20 February 2019, No. 457.

53 Which is required by Article 2, No. 10, CL to deem a design work protected.

54 See footnote 39.

55 Or 50 years if the work shows an exceptional degree of interest for the integrity and completeness of the Italian cultural heritage (Article 10(5), CHL).

56 See Articles 13 and 14, CHL, describing the procedure of declaration for goods belonging to private entities (listed in Article 10(3), CHL) and Article 12, CHL, foreseeing the procedure of verification of cultural interest for goods belonging to public entities and non-profit private entities.

57 Law No. 124/2017.

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