SOFTWARE INFRINGEMENT: THE DIRECTOR OF A COMPANY CAN BE HELD PERSONALLY RESPONSIBLE IF IT IS NOT PROVED THAT ALL THE NECESSARY MEASURES TO PREVENT THE INSTALLATION OF UNLICENSED COMPUTER PROGRAMS WERE ADOPTED, AND THE DAMAGES COMPENSATION INCLUDES BOTH FINANCIAL AND MORAL DAMAGES, SO AS TO DOUBLE THE AMOUNT DUE
With the judgment of October 12, 2020, the Court of Venice, Business Division, condemned a company operating in the field of design of equipment and furnishings for catering and hospitals, and its director, for copyright infringement on software. The ruling was rendered within merit proceedings promoted following the confirmation, in interim proceedings, of the decree by which the same Court had authorized inaudita altera parte the civil search of the company’s PCs.
The case is based on the results of a civil inspection, carried out under the Italian copyright law, of the company’s PCs, which had highlighted the presence of various copies of the plaintiffs’ software without regular license. For this reason, following the confirmation of the civil search decree, the plaintiffs promoted proceedings on the merit for the definitive ascertainment of the violation of their exclusive rights and the full compensation for damages suffered. Merit proceedings were brought against not only the company to which the precautionary measure was addressed, but also its director, who was deemed personally responsible, among others, pursuant to articles 2395 and 2476 of the Italian Civil Code.
The counterparties defended themselves by denying their responsibility and stating that, as for the director, she should not have been condemned being she unaware of the presence of unlicensed software, which would have been independently downloaded on the company’s pcs by some of the employees.
With the commented judgment, the Court of Venice fully rejected these arguments, recognizing on the contrary the personal responsibility of the company’s director, too. On this point, the Court ruled that – given the small size of the company and the (design) activity carried out by it, for which it is necessary to use design software such as those owned by the plaintiffs – it was not credible that the director was not aware of the presence and use of illicit software and that, on the contrary, from the documentation and evidence acquired during the proceedings, it could not be excluded that it was the same director who promoted the commission of the ascertained infringements. The responsibility of the director, continues the Court, would exist in any case even if her awareness could not be demonstrated, and this in consideration of the fact that also an omissive conduct – consisting in the case in question in the failure to control the licenses of the software installed on the company’s computers and in any case in the failure to adopt technical measures able to prevent the commission of the violations – would cause direct damages to the copyright holders.
Another relevant aspect of the judgment concerns the order to pay damages. The defendants were in fact requested to compensate both pecuniary and non-pecuniary damages. On this last point, the Judges, once again granting the plaintiffs’ requests, deemed it necessary to liquidate non pecuniary damages – in their meaning as moral damage, in consideration of the criminal relevance under Article 171-bis of the Italian copyright law and Article 158 of the Italian Criminal Code, of the illegal reproduction of computer programs – in an amount equal to the economic damages, with a substantial doubling of the amount overall due.