Moral rights and architectural works in a recent Italian decision

Casa Bosco

To what extent can an architectural project be modified without the express consent of the architect without such modifications being an infringement of their moral right of integrity?

This is the question that not long time ago the District Court of Milan (Tribunale di Milano) addressed in Boeri v Agnoletto, decision No 1568/2018.

Background

In late 2000s well-known architect Stefano Boeri was commissioned to realize an architectural project - then become 'Casa Bosco' - for ‘residential standardized units – Low Cost housing units’ in Milan by virtue of a contract that foresaw that the architect and the commissioning party would have the co-ownership of any resulting rights, and also that any separate use of the project – including for marketing purposes – by either party should be authorized in writing by the other party.

Following the finalization of the project and the decision of Boeri to leave it due to his political commitment with the Municipality of Milan, a new contract was concluded to prepare the final version of the project and obtain the necessary administrative/building permits. 

Also this contract envisaged that Boeri would co-own any rights to the project as finalized, save for the right to modify the project if any such modifications would be necessary to obtain the necessary authorization.

In 2014 Boeri brought proceedings for infringement of – among other things – Article 20(1) of the Italian Copyright Act. This provision states that, irrespective of economic rights and even after their transfer, the author of a work has the right to object to any deformation, mutilation or any other modifications, as well as any other act to the detriment of the work, that may be prejudicial to their honour or reputation. The architect claimed in fact that both modifications made to his social housing project ‘Casa Bosco’ and the transformation of the project into a for-profit enterprise indeed infringed his moral right of integrity.

The decision

The Court began its analysis by noting that Article 20(2) of the Act also states that [the translation from Italian is mine] “in works of architecture the author cannot object to any modifications that were necessary in the course of their realization. Similarly, they shall not object to any further modifications that were necessary to be made on a work that has been already realized.”

The judges noted that in Italian case law there have been two main interpretations of this provision. On the one hand, there is a restrictive view according to which the only possible modifications are those which in any case do not infringe the author’s moral right of integrity (hence, the provision would only apply with regard to economic rights). On the other hand, the prevalent view is that the derogation within Article 20(2) also applies to the right of integrity [this view appears preferable, also if one considers the fact that it is included within the provision devoted to moral rights]: the authorization of the author is not needed for any modifications that are detrimental to their honour or reputation should such modifications be indispensable to the realization of the work.

The modifications lamented by the architect concerned: (1) the removal of contractual clauses relating to the future sale of the units; (2) the modification of the ratio between free construction- and social construction-reserved areas. 

The Court held that the former would be outside the scope of the author’s rights as it would relate not to the project as such but the economic exploitation of the resulting units, and the latter related to something that the author had consented to by entering the relevant contracts.

The judges thus dismissed Boeri’s action.