Riflessioni a margine di una recente pronuncia della Cassazione: un’occasione persa per ridefinire gli interessi in gioco in materia di banche dati e software

In the decision under comment, the Supreme Court, called upon to rule on the protectability of a temperature detection system used in the railway sector pursuant to Article 102-bis and Article 64-bis et seq. of the Italian Copyright Law, underlined that, on the one hand, in order for the sui generis right on a database to be established pursuant to Article 102-bis of the Italian Copyright Law, it is necessary that the maker of the database has made a “substantial” investment and, on the other hand, the consistency in practice of the requirement of the “creativity of the software”, as of any other intellectual work, is the subject of a factual assessment, as such unquestionable before the Supreme Court, if not for flaws in the motivation. In this essay, after a recognition of the relevant legislation, we offer some insights into the impact that might have had in the current technological context a might have had reinterpretation by the Supreme Court of Cassation of the concepts of ‘creativity’, ‘originality’ and ‘relevant investment’.