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Introduction
The issue of the free usey of images found on the web is at the centre of doctrinal and jurisprudential debate. In particular, the question of the applicability of copyright law to photographs published online is increasingly relevant.
Of particular interest is the recent Judgment No. 5365/2024 by the Court of Milan, according to which “simple” photographs (i.e. “images of persons or of aspects, elements or facts of natural or social life”, which are devoid of creative character) that are found on the Internet without a watermark, i.e. a “digital identifier”, may be used without authorisation, unless there is evidence of bad faith.
This interpretation puts the onus on the author of the photographs to prove not only that he or she is the rightful owner of the images, but also that he or she has made them available to the public with all the information prescribed by Article 90 of the Italian Copyright Law, i.e. the author’s name and the date the image was taken, using means that make this information indelible.
The Case of the Court of Milan
The above-mentioned judgement of the Court of Milan concerns a case brought by a company owning a restricted-access photographic database, containing all the information prescribed by the above-mentioned copyright law.
However, this information was only present in the private area of the database and not on the freely available specimens of the photos. Some of these photos, in fact, had been used without authorisation by another company, which had found them on major search engines without any identifying information, because the newspapers that had obtained a license over these images published them online without watermarks.
The Court reiterated that the author of a simple photograph must comply with the requirements of Article 90 of Copyright Law , making known to anyone wishing to reproduce the photograph the name of the person whose consent must be requested and the duration of the exclusive rights (twenty years from the date the photograph was taken for simple photographs) In the absence of said indications, the author’s exclusive rights cannot be enforced against third parties, unless the bad faith of those who used or reproduced the photographs is proven.
According to the Court of Milan, the responsibility for implementing all the necessary technological measures – to ensure that the information provided when the photographs are first accessed cannot be subsequently removed and always remains associated with the photographs or the file containing them – lies with the owner of the rights to the photographs. This can be achieved, for instance, through the use of the aforementioned digital watermark, a marking system that allows information on their origin and provenance to be placed within media files.
The Court of Milan also ruled that the display of the information required by Article 90 of Copyright Law only upon access to the photographic database and the provision of said information separately from the photographs and the digital files were not sufficient to meet the requirements of the aforementioned legislation.
Therefore, the conduct of the company that had collected the photographs through the major search engines was deemed compliant with regulations and not censurable.
Final Considerations: The beginning of a decline of “Copyright Trolls”?
One must necessarily ask oneself whether the introduction of a principle of law, in some respects characterised by extreme “objectivity” (such as the presence or absence of watermarks on photos), may finally be the right opportunity to put an end to the proliferation of certain annoying types of lawless behaviour on the Internet.
We are talking about the phenomenon of “Copyright Trolls”, i.e. the aggressive pursuit of copyright infringements for purely economic purposes, which the refinement of copyright protection technologies may put an end to once and for all. The growing awareness of digital rights and the adoption of tools such as digital watermarks could drastically reduce the opportunities for abuse.
One possible scenario is for online platforms and rights holders to become more proactive in protecting their works by implementing advanced image monitoring and identification systems. In addition, more legislative and jurisprudential clarity could discourage abusive practices, ensuring a fairer balance between copyright protection and the free usability of images. In conclusion, the end of the “copyright troll” phenomenon could foster a more transparent and fair digital environment, where authors’ rights are respected without hindering creativity or the sharing of content.