5.1.7 Copyright provisions
Violation of Article 202 of the Criminal Code (usurpation of intangible goods), provided to protect intellectual property and works of authorship, is quite frequent. This Article protects, among others, the rights of the author of an artistic work against any usurpation by those exploiting, reproducing or trading such work without consent by the author or in any case by those entitled to dispose of it (Decision no. 57 of 11 May 1990). Besides the rules provided for by the Criminal Code, some special laws have been introduced, which are subject to ongoing amendments and updating, with the clear objective to counter copyright infringements. Protection applies to works of authorship resulting in scientific, literary and artistic works, as well as in inventions, utilities and industrial models. The principal legislation on copyright protection is Law n. 8 of 1991, subsequently amended and replaced by Laws n. 63 of 1997 and n. 43 of 1998. Under the current legislation, the author of a protected work acquires the copyright in that work by the sole fact of its creation; protection concerns not only the author of the work but also its performer (Art. 93 of Law no. 8/1991). Moreover, intellectual property rights cover moral and patrimonial rights. The same Law stipulates that all protected works, irrespective of their form of expression, destination, and merit and of their intrinsic, aesthetic and artistic value, are eligible for copyright protection. Any work, original or derived, single or collective, of a literary, dramatic, musical or artistic character, is therefore protected upon creation. The same principles apply to sound recordings and audio-visual works. Models and drawings, originally regulated by the same Law, are covered by Law n. 64 of 1997 Framework Law on Trademarks and Patents, which governs their registration and related rights. The provisions of this last Law and those contained in the implementing Regulation n. 74 of 1999, have been superseded by Law n. 79 of 2005, "Single Text on Industrial Property", and subsequent amendments. This Law precisely describes inventions, their application and industrial designs protected by the criminal law. The Single Text introduces some changes with regard to patents, especially in case of inventions made by employees or employees of public research organisations (Article 7). Under Article 66 of the Single Text, holders of previously registered trademarks may submit an objection, while the definition of the relevant procedures is entrusted to the Director of the State Patents and Trade Marks Office. In April 2005, a Memorandum of Understanding signed with the Austrian Patent Office, an international searching authority, entered into force. This Memorandum establishes technical cooperation between the two Patent Offices. Patent applications submitted to the San Marino Office, may be examined, at low cost, by the Austrian counterpart, with a view to verifying, with reasonable certainty, the novelty of the invention. If the invention is worth exploiting, the Austrian Office will proceed with a technical analysis, including a detailed examination of the invention. Subsequently, in 2009, San Marino joined the European Patent Organisation by signing and ratifying the European Patent Convention. In April 2012, the Cooperation Agreement between the World Intellectual Property Organisation (WIPO) and the Patent and Trademark Office of the Republic of San Marino (USBM) was signed. This Agreement marks the intention of the two bodies to cooperate in order to provide increasingly efficient services in the field of industrial property. More specifically, it provides for the supply to USBM of modern IT infrastructures developed by WIPO and it will enable it to offer the public more efficient services in terms of registration of marks, patents and designs. All this completes an industrial property system, which supports technological and industrial innovation policies through the creation of the Scientific and Technological Park. Moreover, the Cooperation Agreement provides for mutual exchange of information on patents, marks and industrial designs and demonstrates WIPO's intention to disseminate the culture of innovation and creativity by improving and strengthening national systems of protection of industrial property, with the supply of more efficient services to enterprises.
The number of European patent applications validated in the Republic of San Marino has greatly increased over the years, with positive effects on the state budget and on the attractiveness of San Marino for foreign investors. This sector can be successful for the future of San Marino and is one of the areas of successful cooperation with Italy. The principle of mutual recognition enshrined in Article 43 of the "Convention of friendship and good neighbouring", signed between the two countries in 1939, may still be important for the industry based in San Marino using the services of the Patent and Trademark Office of the Republic of San Marino (USBM). Pursuant to that article, patent applications submitted to the USBM by people living in San Marino are valid also in Italy. The mutual recognition between San Marino and Italy in this sector only applies to national procedures: foreign trademark and patent applications must be submitted to both registers. Apple Inc. was one of the companies that submitted an application to the USBM in 2015.
Law n. 63 of 1997 Supplementary Provisions to Law n. 8 of 25 January 1991 – Copyright Protection extends protection also to performers of a work, including actors, singers, musicians, dancers, etc.
Law n. 48 of 1998 (amending and replacing Copyright Law n. 8 of 1991 and Law n. 63 of 1993) stipulates that, as part of his moral rights, an author may prohibit any act through which his work could be made known to the public, either directly or indirectly.
In 1981 San Marino concluded an agreement with the Italian Association of Authors and Publishers (SIAE). Under this agreement and in line with the 1939 Convention on Friendship and Good Neighbourhood between San Marino and the Kingdom of Italy, San Marino and SIAE regulated their relationship concerning the use of all works protected by SIAE. The 1981 Agreement supersedes that of 1967 and provides preferential rates to be charged to San Marino users, plus an additional 20% reduction for performances arranged directly by the State. Moreover, the San Marino radio and television broadcasting company annually negotiates with SIAE the terms of trade for broadcasting copyrighted music.
While the Law does not make any reference to public lending rights, it provides for the use of copyrighted material by radio and television broadcasters. In case of a sound or audio-visual recording or broadcasting, performers of a dramatic, music or, literary work, etc., have the right to receive a fair remuneration, irrespective of what they earn as performers. Their name must also be reported in any sound or audio-visual recording of their performances. Sound recordings made in San Marino must have a special mark of origin, as evidence of their authorisation by the parties concerned. In practice, especially as regards concerts and musical performances, the artist "authorises" (generally for free) a radio-TV network to broadcast the event. Benefits for the performer are merely in terms of publicity and image. Otherwise, if San Marino RTV purchases audio-visual material, each product is certified with indication of the seller's rights and transfer of such rights to the radio-television network for broadcasting.
In 2010, a conference on intellectual and industrial property addressed the San Marino relevant legislation in comparison with other countries. During this conference, the intellectual property sector was unanimously recognised as strategically important to support the development of the country as a whole. Participants also encouraged the introduction in the San Marino legal framework of a corporate vehicle facilitating the efficient management of marks and patents, which, together with the expected double tax agreements with Italy, would make intellectual property and its royalties a real strong point of the San Marino system.
Chapter published: 07-10-2015