Intellectual Property Crime Requires a Pre-existing Original Work

The intellectual property offence under Article 270 of the Criminal Code is one of the provisions that most frequently generates uncertainty about the boundary between a criminal wrong and a civil dispute. A Supreme Court judgment of April 2026, delivered in cassation appeal 5767/2023, provides a reference criterion by clarifying the elements of the offence and, in particular, by insisting on the need to establish the prior existence of an original work as an indispensable precondition for the application of the criminal rule.

The original work as a precondition of the offence

The Supreme Court begins from an elementary observation that is nonetheless decisive in practice: Article 270 of the Criminal Code protects intellectual creations endowed with originality, not ideas, data or generic elements. For reproduction or plagiarism to be a crime, the first thing that must be established is that a pre-existing work deserving of that protection exists. If the originality of the work said to have been copied is not proved, the criminal provision cannot be applied, regardless of what the accused may have done.

This requirement is not a formal one: it must be effectively established throughout the proceedings. The burden of proof lies with the prosecution, and the absence of this element may lead to an acquittal even where the remaining elements of the offence are present. The judgment thus underlines that not every copying or use of someone else's creation has criminal relevance.

The conduct punished under Article 270 of the Criminal Code

The provision punishes the reproduction, plagiarism, distribution and public communication of works without the authorisation of the intellectual property rights holders, provided that a direct or indirect profit motive and harm to a third party are present. Each of these forms has its own elements and requires an individual analysis.

Plagiarism in the criminal sense goes beyond copying fragments: it involves a substantial reproduction of the original elements of another work while concealing its origin. Not every influence or similarity between works amounts to criminally relevant plagiarism: it is common for genres, techniques or narrative structures to be shared by multiple authors, and that overlap belongs to the public domain of ideas, which copyright does not protect. The Supreme Court has been consistent in distinguishing the protection of specific expression from the absence of protection for abstract ideas or concepts.

The boundary between criminal and civil proceedings

The judgment places particular emphasis on the distinction between the offence and disputes of a strictly civil nature. In intellectual property matters, disputes between authors are common and arise from very different causes: controversies over authorship, breaches of publishing or rights-assignment contracts, misappropriation of content on digital platforms. Most of these disputes belong to ordinary legal relations and are resolved in the civil courts.

Criminal law operates as a last resort and its intervention is justified only where conduct crosses the threshold of criminality. The mere existence of economic harm or the fact that one party has enriched itself at the other's expense is not by itself enough to justify opening a criminal case. The distinction is relevant for the defence: in plagiarism proceedings, establishing that the dispute is civil in nature can be the most effective route to securing a dismissal or an acquittal.

The importance of expert evidence

In intellectual property offences, expert evidence takes on particular importance. Determining whether a work is original, whether a criminally relevant similarity exists between two works, or whether the resemblance results from elements belonging to the common stock of ideas requires a technical analysis that goes beyond the ordinary knowledge of the court. Courtroom practice shows that outcomes depend substantially on the quality of the expert report and on how effectively it is challenged or reinforced at trial.

For the defence, the expert strategy must be planned from the investigation stage. Once the prosecution's evidence is established, questioning the originality of the allegedly copied work or demonstrating that the similarities result from common sources can undermine the criminal offence at its very foundation. The choice of expert, the formulation of conclusions and their contrast with the opposing report are aspects on which the outcome of the proceedings may depend.

Implications for the criminal defence

The Supreme Court's doctrine in this area offers several lines of defence that must be assessed in each specific case. The first, already noted, is to challenge the originality of the protected work. The second is to argue that the similarities between the works do not reach the level of substantial reproduction required by the criminal provision. The third is to examine whether the accused's conduct was oriented towards profit and whether it caused the harm the rule requires.

Alongside these substantive lines, the defence must also attend to procedural aspects. In intellectual property proceedings, standing, the requirements for a valid complaint and limitation periods can raise relevant technical questions. Article 270 of the Criminal Code is a semi-public offence in some of its forms, which conditions the exercise of the criminal action. An early and technically sound defence that assesses all of these dimensions is the most appropriate approach to these proceedings.