Deepening

Meeting organised by the Milan Architects Association on copyright and BIM

Paolo Mazzoleni opened the meeting by saying: “not only the work but also the methodology must be protected”.
Paolo is right: the use of digital modelling takes us to a dimension of planning in which the process, the method, the performance and the outcomes are prevailing. Therefore, the ambit of rights – and obligations –of the parties becomes wider.
The information – entered, shared, elaborated and re-elaborated – in the BIM process constitute a body, a model that is the result of a complex know-how of collaboration among the different professionals, of a collective action that is also qualified for the methodology used to pursue the common result.
Therefore, by observing the copyright, the issue that must be addressed is not limited to the rights on the object of the planning, but also on the ones potentially connected to the methodology used.
In many occasions we pointed out that digital modelling requires a collaboration, after all, as Patricia Viel, architect, has specified “architecture has always been a collective work”.
With the digital collaborative process this is clear.
Which are the implications on the copyrights? This is a world to be discovered, starting from the applicability of the legal notions, of intellectual property right contracts, of the new collective subject that digital modelling creates and that includes the client, who inevitably is part of the living organism which develops the model.
Relational strength, integration of the object in the activities, difficulties in identifying precise boundaries in the performance of the single professionals and, thus, in the respective creativity and responsibility.
And what happens then? The same thing that happened when the reasoning concerned how to protect the rights of a composed work – such as musical works (played with the contribution of several musicians), comics (words and pictures), movies, documentaries (music and pictures), legal handbook (with chapters written by different authors) -, in which different subject, with complementary competences and mixed activities, build something new, permeating with each other to realise a new multiple identity object. In that case the law has brought innovation, by building new forms of protection.
The same thing will be done for digital modelling.

Metropolitan Observatory on Energy Efficiency meeting and actions on public assets in compliance with the European Union law.

Today, the new European identity must be sought in the ability of the Union to deal with the environmental challenge.
The European crisis, from many standing points, is an identity crisis: immigration, economical or financial problems and populisms have put to test a model that has not been able to generate affection from the citizens of the Member States and that struggles to react in an efficient manner to unforeseen events.
The phenomenon of the European identity crisis has been studied from every angle by political analysts, jurists, economists, philosophers, cartoonists and comedians.
In order to restore reputation and credibility, currently, the Green Deal represents for the European Union (which should be, in the thesis, the Union of the European people) an occasion not to be missed: the protection of the environment is linked to the economic growth, to social development, to the regeneration of urban spaces, innovation, suburbs enhancement, woodland protection, to partnership.
What all of this has to do with the European regulation on energy efficiency?
A lot, because the analysis of the European regulation and of the national implementation regulation – which we have carried out in order to intervene to the debate organized by the Observatory – demonstrates that energy efficiency and similar tools are only the means to achieve a wider scope, that is a “civilisation” scope: make Europe a better place to live in, in terms of environment, work, social justice, aptitude toward other and nature.
And how do we achieve this result?
Definitely not by isolating the public sector from the private one, definitely not by stiffening the legislation and slowing down the administration; not with obsolete educational programme, not by trivialising or making emotional the issues that must be examined, dealt with and solved with scientific and realistic schemes and structures.

Interesting Facts on the origin of copyright

We often hear about it and, jurists at least, know how to protect it, but few people know where and when copyright was established.
Copyright is, indeed, a very young institution.
In the ancient times, it was not possible, though only in a limited manner, to reproduce a relevant number of copies and therefore there was not the nagging problem of protecting the author of a work. On the contrary, copying was considered an actual artistic expression, something good rather than something bad.
In the ancient Greece and Rome, the works were freely copiable and therefore could be subjected to manipulation and changes over time. In the Middle Ages the authors used to protect their works from illegal uses by embedding “curses” in texts.
It was only with the invention of print that people began to feel the need to recognise to authors more protections. At the beginning the author ensured for himself the profit deriving from the sale of the manuscript to the printer, whereas this latter enjoyed the profits deriving from the exploitation of the work. Privilege systems (the ancestors of the exclusive) were introduced and granted at first to editors and printers and only after to the authors of literary works. The most coveted privileges were the ones granted by the Pope, since they gave the right to reproduce the work in all the Christian world and because the violation of this concession caused the excommunication of the offender.
The first copyright in history was granted in Venice on the 19th of September 1469 to Giovanni de Spira, the printer who introduced the art of typography in Venice. He obtained from the venetian authorities the privilege to be the only one able to print Pliny the Elder’s Naturalis historia in all the city’s territory.
The most ancient law on copyright matter was Queen Anna Stuart’s Statute, who introduced in England the (famous) copyright between 1709 and 1710. This first law on copyright was followed by the United States federal law introduced in 1790 and the French revolution laws of 1791 and 1793 which expressly gave the author of a work the right to take legal actions against a “counterfeiter”. It was only with these regulation acts that the property right on the work was no longer considered as a natural right but became a concept defined by law as positive, limited in time and with a relevant economic value.
In Italy, the first acknowledgment of the “most holy and precious of properties” was with Law 19 “fiorile” year IX (9th of May 1801) of the Cisalpine Republic. Followed by the Edict 23 September 1826 for the Papal State, the decree 5 February 1828 for the Kingdom of the Two Sicilies, the “Albertino civil Code” in 1836 for Sardinia and the decree 22 December 1840 by Marie Louise for the Duchy of Parma, Piacenza and Guastalla.
If you think about the fact that in unified Italy the law on copyright is the no. 633 of the 22nd of April 1941, you realise that it is not been long from the technological goals achieved in the past. The law has been reinterpreted in the broadest way possible after every technological revolution, and we should ask ourselves how it will be modified in the future. The future generations will have the final saying.

Tomorrow’s Lawyers – An Introduction to Your Future

Is there a conflict between legality and entrepreneurship?

Is there a conflict between legality and entrepreneurship? Reasoning from the Ance meeting, Rome, 15 September 2019, (non) guilty assumption.

Is there a conflict between legality and entrepreneurship?
The question derives from the ratio of the recent normative, both in the field of public contacts and in criminal law, that is mainly focused on punishing, with different tools, suspicious behaviours and alleged irregularity, even if the suspicious or the irregularity are not actually proved and ascertained.
In this way enterprises lost the sense of justice and increased – instead – the frustration of not being able to enforce their own reasons being accused and mistrusted without having committed crimes.
In the time of presumption – concerning corruption, organized crime and bad faith – the relationship between the institution and the businesses is broken. In this context the State is not able to offer justice anymore. This conclusion is dangerously affecting the pillars of the rule of law, which should aim at protecting the associates who renounce to take justice in their own hands by trusting the rationality of the law, as kind and content of social life.
Instead, the implication of a regulation that, also out of the criminal law, assumes to regulate the social cohabitation by starting from the assumption that persons and enterprises should be monitored because, otherwise, could be able to act criminally, are critical for the most profound meaning of legislation and law.
It is necessary to remember that associates are not “social enemies”, nor subject that must be eliminated, but they are rather people who are part of the legal system, who give the law a meaning.
As the Regional Administrative Court’s ex-President Angelo De Zotti mentioned more than once during the meeting, there is a conflict between eels and salmons: the Italian Legislator of public contracts forces us to do as salmon do by difficulty swimming counter current, whereas the German one, makes his enterprises and administration agile eels.

END OF WASTE: first Italian experience of circular economy principles

End of waste: from ruling of the European Court of Justice (28 March 2019, C-60/18) to Italian experiences and attempts to implement circular economy principles.

While the Italian Government is still waiting to provide for a specific regulation about the so-called end of waste – i.e. the authorization procedures for the transition from waste to new product, with the consequent readmission of the good to the market – the European Court of Justice has provided interesting directions and some public entities, among which the Metropolitan City of Milan, have acted as forerunners in order to resolve the issue.
In the ruling of 28 March 2018 (case c-60/18 – As Tallina Vesi As) the Court has confirmed that the legislation on waste is aimed as safeguarding public interests of human health and environment. In absence of standard criteria established at the legislative level of the Community or nationally, the mentioned public interests are safeguarded if it is reached a technical-scientific awareness of the products that allows public Authorities to exclude any type of danger for human health and environment.
Consequently – but this profile is not always understood by reviewers – when the above-mentioned ratio is respected, according to the European law there are not obstacles to release authorisation by national authorities, to transform waste in a new product.
On the basis of similar considerations and on the impulse of economic operators, some administrations unlocked the authorisations process of biomethane plants deriving from the treatment of solid urban waste previously blocked due to a restrictive interpretation of the applicable rules.

Public procurement: the issues of the Law Decree no. 32, 18th April 2019 – the so-called “Sblocca Cantieri” Decree

The Italian Public Procurement Code still lacks thirty implementing decrees, not including the much anticipated “new” Regulation. Some of them are essential as they are related to the reform introduced by the Directives no. 2014/24/UE and no. 2014/25/UE. They are also fundamental for the public procurement market to be able to promote the development of the Italian industrial policy.
The most crucial implementing decrees, not yet adopted, concern the purchasing bodies, the classification of the procuring entities and the classification of the enterprises in the construction sector.
The Law Decree no. 32/2019 (so-called “Sblocca Cantieri”) could serve as an opportunity for a rethink from the scientific and operational point of view.
Unfortunately, the Government chose to overlap new rules over the old ones. Other countries, such as Germany, promoted a strategic and principle-based regulation. The Italian legal system is often characterized by the proliferation of laws and the excessive amounts of rules which impose an unnecessary compliance burden on businesses and citizens. This, essentially, for political reasons. Politics in fact avail of new rules to advance the idea of change towards citizens (on the limits of this perspective you can refer to S. Valaguzza, Governare per contratto, Editoriale Scientifica, Napoli, 2018).
Within the Italian legal system, the streamlining of regulation appears to be a paradox. Often new rules are added instead of removed. This also happens in the framework of the public procurement market.
Furthermore, adding new rules is not advised by the international organisations who analyse the public procurement market. For instance, the slogan promoted by OECD and UNCITRAL is ‘tools not rules’.
International organisations’ studies and European Commission Communication dated 3rd May 2017 –Making Public Procurement work in and for Europe – have had too little consideration.
Someone would think “new work” for lawyers. For us, instead, it is a wasted opportunity to overcome uncertainty giving confidence to businesses and public administration.