In our Information Letter N.S. 182 we reported on the EU's directive harmonizing the term of copyright protection in all EU member countries. One of the features of this harmonization was to provide that the term of protection for phonograms would normally be fifty years from first publication. Since this term was longer than had previously existed in many countries and could have the effect of reviving protection in such countries where the work had already fallen into the public domain prior to adoption of the directive, it was specifically provided that:


In Italy prior to the Directive the term of protection for phonograms was thirty years. In implementing the EU Directive, Italy provided for a three month period after implementation of the Directive for the distribution of phonograph records and analogous media in respect of which rights of use had expired under the previous legislation by the persons who have reproduced and marketed the said media before the date of change of the term of protection.

In the case of Butterfly Music Srl v. Carosello Industria Musicale Italiana, Butterfly who had been selling CD's of phonograms that had fallen into the public domain under the old law, challenged the limited period provided by the Italian law implementing the EU directive for selling off CD's that had been made before the law changed. It argued that this was an insufficient provision to protect its acquired rights as was required by the Directive. On reference to the European Court of Justice from the Tribunale Civile e Penale of Milan, the Court of Justice held,


The Court acknowledged that three months was a short period but the Court held this to be reasonable in view of the objective of harmonizing the term of protection between the Member States of the EU as promptly as possible.