Inventors of online gambling schemes for online games and contests are suffering bad times in Italy, as the precise copyright law status – and therefore the possible extent of protection – is still unclear, with recent case law developments suggesting that only limited protection is available.
Online gambling schemes are largely used for betting and representative examples of the practical implementation of such schemes are the betting games connected to football matches which require the user to bet on a score of a match (or to the number of goals etc.).
Different Possible Characterizations
The Italian Law on Copyright (Law n. 633/1941 as subsequently amended, the “Copyright Law”) grants different levels of protection to authors of “classic” copyrightable works on the one hand and the creators of “engineering work projects”, mentioned by section 99 of the Copyright Law, on the other hand.
- sections 1 and 2 of the Copyright Law include any intellectual property work characterized by novelty and creativity and grant to the author two main rights: (i) the moral right to be recognized as the author of the work and (ii) all economic rights related to the exploitation of the work; those rights exist for up to 70 years after the death of the author
- section 99 specifically refers to a more limited type of protection for engineering work projects and provides to the relevant creator a limited set of rights subject to certain formal requirements. Once those requirements are met, the creator has the exclusive right, for 20 years, to copy, duplicate and reproduce the technical projects and any relevant information provided therein. They also have the right to claim an equitable remuneration against any third party which may make a profitable use/exploitation of the work without the creator’s consent.
Italian Courts have traditionally seen online gambling schemes as akin to engineering work projects in order to permit inventors of such schemes to benefit from the (limited) protection granted to inventors of engineering work projects by section 99 of the Copyright Law.
In order to be able to benefit from a wider protection granted by section 1 of the Copyright Law for classic copyrightable works, the online gambling scheme must be characterized by a recognizable level of creativity and novelty.
To be compliant with the level of novelty and creativity required under section 1, the scheme must contain a new and original process of application of new technical rules or alternatively an original further development of pre-existing rules. Such scheme must be recognizable as original and new compared to previous works. Furthermore it must be noted that mere ideas as such, cannot fall under the protection of the Copyright Law, a creative effort and ingenuity must be present.
It is possible to imagine the existence of online gambling schemes (applicable to games and contests) characterized by a sufficient creativity level to permit to authors to benefit of a wider range of protection.
It is noteworthy that the protection granted to authors of the schemes at issue, due to the current legal framework, is not foreseeable as it can develop on two different paths.
Italian case law in the past decades has frequently applied the protection provided by section 99 of the Copyright Law to the inventors of online gambling schemes, even though perplexities have arisen according to the equality of the legal nature of these two different types of intellectual properties works.
With specific reference to the legal nature of the types of intellectual property works, a recent decision rendered by the Court of Rome (dated February, 5th 2014 n. 60737/2014) has analysed the matter concerning the protection of online gambling schemes and has confirmed the prevalent approach which stands for the inventor of an online gambling scheme to be entitled to benefit of the same legal protection provided by section 99 of the Copyright Law to inventors of engineering work projects (therefore considering the online gambling schemes as engineering work projects subject only to limited protection).
The Court of Rome has not taken a clear stance on the issue related to the equalization of online gambling schemes to engineering work projects as these schemes do not actually offer a solution to any existing technical problem as they are related to chance and unforeseeable circumstances.
In any event, the Court has specified that the novelty requirement of an online gambling scheme is met when an original technical process is provided for, not being sufficient to such purpose a simple new application process based on an already known technical method.