attention must be paid to enforcement, which is obviously only possible against those who produce similar equipment, or against the user who uses them in his professional activity (for example, restaurateurs), not obviously against private individuals who use them in the home, perhaps by adapting pre-existing equipment (but if the adaptation is carried out by a professional, it may be the latter who is liable for the contributory infringement). III. COPYRIGHT AND GASTRONOMY Some more peculiarities present instead other forms of protection and in particular that of copyright, which is certainly conceivable, at least in the abstract, when a particular shape or lighting take on a creative value. It has thus been considered, since a decision in Milan in 1967, that Ikebana’s floral compositions, for example, can be protected7: therefore, nothing prevents us, at least in theory, from imagining that among the “installations” that since the Avantgarde Art era are fully part of the creations of figurative art there are also “gastronomic” installations, in which lights can play a fundamental role, albeit always in conjunction with other elements. To this end, however, a particular gradient of artistic value was required for shapes in some European countries, like Portugal and Italy: in Portugal Article 2 of the Copyright Code included among the protected works the “Works of applied art, industrial designs and works of design which constitute an artistic creation” and likewise in Italy, according to Article 2 of the Copyright Law for industrial design works copyright protection was subordinate to the requirement of artistic value, while any other work (and article 2 of the Italian copyright law contains a non-exhaustive list, but only illustrative) can be protected in the presence of creativity alone. However the European Court of Justice, dealing with the Portuguese rule, found it to be inconsistent with EU law, since “The concept of ‘work’ that is the subject of all those provisions constitutes, as is clear from the Court’s settled case-law, an autonomous concept of EU law which must be interpreted and applied uniformly, requiring two cumulative conditions to be satisfied. First, that concept entails that there exist an original subject matter, in the sense of being the author’s own intellectual creation. Second, classification as a work is reserved to the elements 7 See Court of Milan, 23 January 1967, quoted by Ercolani, L’oggetto della protezione, in Galli-Gambino, Codice commentato della proprietà industriale e intellettuale, Turin, 2011, at pages 2846 ff., which describes them as a figurative composition, “according to formulas that represent genuine rules of a constantly evolving language and through which the author gives sensitive form to his own life-giving intuition of the natural elements”. 269 THE PROTECTION OF FOOD CREATIONS
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