AUTHORSHIP AND OWNERSHIP LICS

Authorship and Ownership The author is the creator of an intellectual work The rightholder is the person who is entitled to exploit the work in order to gain an economic revenue from it Normally, they are the same person When does the distinction arise?: in case of “collective works”; “joint works or works in collaboration” and when the work is the outcome of an employment relationship or for a special commission or order

Works prepared within an employment relationship: INVENTIONS (art. 64 Italian Code of Industrial property) A) Inventions made by an employee whose contract specifically contains duties regarding creative activity and which also determines a separate payment for it. In this first case, all rights on the invention are owned by the employer (but moral rights are recognized to the author of the invention) B) Inventions produced by an employee whose contract specifically mentions creative activity among his duties, but which does not foresee any specific payment for it. In this second case, all rights on the invention are owned by the employer; however, the employee is entitled to obtain a fair reward for his invention, C) Inventions produced occasionally by the employee, during his free time, by using his personal technical instruments, but exploiting the know-how of the employer. In this third case all rights related to the invention are owned by the employee, but the employer has the right to use or to buy the patent from the inventor.

Works prepared within an employment contract : INTELLECTUAL WORKS In an employment contract – as a general rule- rights of economical exploitation belong to the employer (and not to the author) as far as the creative activity is present in the employment contract as an employee’s obligation. Moral rights still pertain to the author

The case of software and database Art. 12-bis L. 633/41: “Save for an agreement to the contrary, the employer is the holder of the exclusive right of economic exploitation of the computer program or of database created by the employee in the execution of his/her duties or following the instructions given by his employer”.

Collaborative works in general A collaborative work is the outcome of a creative activity involving a plurality of authors, who might collaborate spontaneously or be organized by a coordinator.

Collective works: notion Art. 3 L. n. 633/1941 (Italian Copyright Act): “Collective works, constituted by the gathering of works or parts of works, that have the characteristic of autonomous creation, as the result of the choice and coordination toward a specific literary, scientific, didactic, religious, politic or artistic scope, such as encyclopedias, dictionaries, anthologies, reviews and journals, are protected as original works, independently of or without prejudice to the copyright on works or parts of works of which they are constituted”.

Collective works (art. 7 L. 633/41) Works realized by a plurality of authors (co- authors) supevised by a coordinator who takes care of the direction and organization of the whole work Each contribution does not permeate mutually, but remains distinct from the others Economic rights on the whole work are granted to the coordinator, but each co-author retains the ownership on his own single work Moral rights still belong to each co-author

Collective works art. 38 L. 633/41: “In the collective work, save for a different agreement to the contrary, the right of economical usage is granted to the publisher of the work, without any prejudice for what established by art. 7”. When the collective work is realized within an entrepreneurial structure, we have to contemplate another player, the publisher, who provides the instruments for achieving collective works (hiring the director the creation of the collective work and providing him with collaborators, plans, programs and instrument of works) (e.g., reviwes, journals…) Every right of economic exploitation is owned by the publisher (not by the coordinator)

JOINT WORKS or WORKS IN CREATIVE COLLABORATION Art. 10 L. 633/41 art. 10 (Italian Copyright Ac)t: “1. If the work has been created with the indistinguishable and inseparable contribution of a plurality of persons, copyright vests commonly in all co-authors. 2. The undivided parts are presumed of equal value, except for a written agreement to the contrary. 3. Provision of communion [tenancy in common] are applicable. In any case the defence of moral rights may be invoked by each co- author and the work may not be published, if inedited, nor may it be modified or used differently from first publication without the agreement of all co-authors. Nonetheless, in case of unjustified refusal of one or more co-authors, publication, modification, or new usage of the work may be authorized by the judicial authority, and accordingly used”.

JOINT WORKS or WORKS IN CREATIVE COLLABORATION Works created by a plurality of authors who works spontaneously together Each contribution is indistingushable from the others (contributions, once merged are no longer recognizable and thus they loose their individuality) Economic rights on the whole work vest commonly in all co-authors, thus every kind of utilization of the work must be authorized by unanimity All co-authors own an equal share of the whole, even if they have been different in terms of quantity and quality Moral rights still belong to each co-author