Immaterial Property

IMMATERIAL PROPERTY. - The problem concerning the classification of so-called "rights over immaterial goods" has been seriously debated. Against the thesis that ranks such rights in the same category as rights in rem stands the approach that considers them an autonomous class of patrimonial rights, albeit presenting notable structural analogies with rights in rem. The solution can be found only by establishing whether or not the corporeality of the thing is an essential distinguishing characteristic of rights in rem, a question that is not peacefully settled. It suffices here to note that, even if such rights are assimilated to the real right of property, it is undoubtedly a matter of property that presents special juridical characteristics, dependent on the special nature of its object. With this reservation made, one may also speak of immaterial property, that is, property in immaterial goods or incorporeal things.

One of the principal manifestations of such immaterial property is constituted by the patrimonial right of the author. This has as its object a good (work of the intellect) that is exterior with respect to the person and capable of having its own distinct economic utility.

In Carnelutti's expression, the work of the intellect is an idea, that is, a thought formulated and introduced into an exterior quid that receives it, containing it (the so-called corpus mechanicum); being the product of the subject's creative activity, it is bound to the latter by a relationship of a genetic nature, which, however, does not prejudice its exteriority with respect to the subject. Indeed, being produced by the subject's activity does not exclude that the object constitutes a quid detached from the person, and existing outside of it, since genesis must not be confused with existence. Exteriority is not eliminated even by the preservation of the personal imprint of the creative subject (author). In the same way, the material parts of the human body, once detached from it, are things, the object of the right of property of the person from whose body they have been detached. The work of the intellect, thus conceived, is susceptible, in itself, of economic utilization: this, indeed, is possible not for corporeal things alone.

I. LEGISLATION

The legal system protects the possibility of economic exploitation by the author (art. 12 ff. of the law of 22 April 1941, no. 63, concerning the protection of copyright, art. 2577, 1st paragraph, Civil Code): and therefore the author's right over the work of the mind, created by him, is configured as a patrimonial right.

This right, as has been said, constitutes one of the principal manifestations of immaterial property; more precisely, it is called intellectual property, an expression that has been widely used.

It arises as a consequence of an act of intellectual creation. Art. 6 of the copyright law provides: "The original title of acquisition of the author's right is constituted by the creation of the work, as a particular expression of intellectual labor"; and this rule is repeated verbatim in art. 2576 of the Civil Code. The creation of the work is a condition for the acquisition of the author's right: and indeed, the work of the mind cannot be the object of a right if it is not itself created and therefore does not exist. Before the creative act, the freedom to bring the work of the mind into being, or not, constitutes nothing other than a particular manifestation of the general right to freedom. Naturally, it is necessary that this creation should not have remained in an internal state: indeed, the idea acquires no social importance or juridical significance until it is formulated externally. It is only at this moment that, as the possibility of knowledge by third parties arises, the problem concerning the protection of the subject of the creation in relation to those same third parties emerges, a problem resolved by the legal order by attributing to the said subject the author's right (v. also PROPRIETÀ LETTERARIA).

It must be noted that the author's patrimonial right does not exhaust all the powers attributed to the author. In the aforementioned copyright law, arts. 12-19, concerning the "protection of the economic exploitation of the work," are followed by arts. 20-24, concerning the "protection of the rights over the work in defense of the author's personality (author's moral right)." Thus the legislator himself classifies separately those powers that do not concern the economic exploitation of the work, and groups them under the single designation of "author's moral right."

The latter - which, in historical evolution, found its affirmation later than the author's patrimonial right - constitutes a private right having as its object not the work of the mind, a patrimonial good, but rather the personal good of intellectual paternity (a moral mode of being of the author's own person): it is a question of a different good, not of a different interest relating to the same good. Moreover, although at the moment of its arising it belongs to the same subject to whom the author's patrimonial right belongs, it may subsequently have an autonomous life. So that its distinction from the latter is certain, in contrast to which it constitutes a right of personality.

A particular species of the author's patrimonial right is constituted by the inventor's patrimonial right. The work of the mind may also concern the industrial field: there is then a particular species of work of the mind, namely the invention, which is characterized by its practical purpose. Another manifestation of immaterial property is to be found in the right to an extrapersonal name, designating, rather than a person, an extrapersonal entity.

The name (v.), although acquiring particular social and juridical importance insofar as it serves to indicate persons, is still a general means of language, capable of indicating any conceivable entity. Consequently, it must be investigated what the attitude of the legal order is toward the extrapersonal name, designative of extrapersonal entities. It must be premised, by way of clarification, that the extrapersonal name serves to realize, rather than personal identity, the identity of entities other than persons: it serves to designate and distinguish not persons, but entities different from them. Consequently, legal protection, if it exists, covers an interest relating to a good that does not constitute a personal mode of being; and the subjective right over such a good is qualified as a right over an immaterial good rather than as a right of personality.

There does not exist a protection of the extrapersonal name of breadth equal to the protection of the personal name. The legal order has sought to guarantee to the person (to every person) the protection of his own personal identity, not the protection of the identity of every thing of his. The subject is not entitled to the exclusive use of the distinctive sign attributed to any thing forming part of his patrimony: for example, to an animal, to a villa, etc. Otherwise, through excessively grave limitations on the freedom of third parties, the legal order would reveal itself as excessively cumbersome and invasive. Moreover, among extrapersonal entities, the enterprise has such importance as to require the protection of the name that designates it, which is called more specifically, and in the same legislative language (art. 2563 ff. Civil Code), the firm name (ditta).

The problem of whether the firm name properly designates the enterprise, or the business, or both, cannot be addressed here. What is certain is that the firm name, understood as the distinctive sign of the business or of the enterprise, is not a personal distinctive sign, since neither the business nor the enterprise is a person. With respect to the firm name thus understood, undoubtedly one cannot speak of a right of personality; on the contrary, a transferable patrimonial right is delineated (cf. art. 2565), classifiable in the category of rights over immaterial goods.

But it must be emphasized that the firm name is also a mode of personal designation. Indeed, it is not only a distinctive sign of the enterprise, but also a distinctive sign of the holder of the enterprise. It therefore has a twofold aspect, objective and subjective: alongside the objective firm name one may speak of the subjective firm name, designating the holder of the enterprise in the exercise thereof.

Considered under every aspect, and therefore also under the objective one, the firm name presents a connection, as regards its composition, with the civil name of the entrepreneur. Indeed, in the composition of the firm name the title to the enterprise always has significance. It may happen that the firm name corresponds fully to the civil name of the entrepreneur. If it does not correspond fully, it must contain at least his surname or initials (art. 2563, second paragraph; cf. art. 2566 for the sanction consisting in refusal of registration). The firm name, therefore, in addition to having a subjective (personal) aspect, presents, also under the objective aspect, a connection with the fundamental designation of the person (civil name).

Adriano De Cupis

II. MORAL PRINCIPLES

The question arises whether intellectual property has a foundation in natural law.

First of all, a distinction must be drawn between the exclusively moral interest, which is summed up in the recognition of the authorship of the work, and the economic interest. There is no doubt that by nature man has rights over the product of his own intellect and industry, obtained by using things of which he has undisputed ownership. The foundation of this right is the fact that production is an original mode of acquisition: from his own gifts and abilities man must draw the means to attain his end. Limits to this right can, however, come from the exercise of productive activity, carried on to the detriment of others or by using things belonging to others; and likewise from society, which, for the common good, can set limits even to this kind of property, in view of the social function of both material and immaterial goods. These limits, however, can never extend so far as to make the right of the holder of ownership purely nominal. Likewise, by natural right, man has rights over the fruits that flow from his own actions, such as honor, fame and advantages of various kinds. It is difficult, however, on the basis of natural right alone, to limit the extent of these rights. It is therefore no wonder that among theologians, because of this effort at further determination, various opinions are found.

For a correct understanding of these various opinions, the following observations must be kept in mind. The economic advantages inherent in so-called copyrights, besides being of rather recent origin (for literary property they go back to the invention of the printing art and were originally granted in the form of privileges of princes), are, more than fruits of the product of the intellect, revenues owed by virtue of the contract to which the disclosure of the discovery or the publication of the work was subordinated. The claiming of the authorship of the work, the fame that follows from it and the right to the preservation of the author's name are, on the other hand, rights that follow from the very product of the intellect. The capacity for invention is in fact part of the excellence of the person, which, insofar as it is derived from the thing, must be referred to the author. Since the author is designated by his name, this is ordinarily the necessary and inviolable means by which the fame and glory that follow from it can and must be attributed to the author.

This said, here are the principal opinions on the value of copyrights in relation to natural law. 1) Some authors assert that the principal moral right, namely the recognition of the authorship of a work, invention, etc., has its basis in natural law; the other moral rights and the economic ones, on the other hand, derive their force from positive law, because the idea, once externalized, becomes common patrimony and can no longer be the object of property (P. H. Marres, De iustitia, I, Ruremund 1879, pp. 28-29; A. Vermersch, Quæcisiones de iustitia, Bruges 1904, pp. 319-23). Therefore, on the basis of natural law alone, to appropriate, for one's own ends, the work or invention of another already communicated, or a printed literary work, would not be unlawful, always excepting the recognition of the authorship of the work. 2) Others think that all moral and economic rights derive from the law of nature. They reserve to the author, for example, not only the first edition of a literary, musical work, etc., but also the subsequent editions, at least for some time; otherwise, they say, the owner would be deprived of the fruits of his own labor (cf. A. Lehmkuhl, Theologia moralis, I, 11th ed., Freiburg i. Br. 1910, n. 1076; A. van Gestel, De iustitia et lege civili, Groningen 1896, pp. 148-50; V. Cathrein, Philosophia moralis, Freiburg i. Br. 1927, pp. 324-26). The first opinion seems to disregard too much the rights of nature over the fruits of one's own labor or intellect. Production is in fact in itself, even if not absolutely, as has been said, an original title of acquisition of property. The second opinion, on the other hand, errs through incompleteness and imprecision, since it does not give exact limits on the extent of copyright on the basis of natural law alone. 3) Other authors, finally, incline toward these concepts: to reprint or reproduce the works of others at a time immediately following would be forbidden by natural law itself, if the consent of the author is lacking. Once this time has passed, ordinarily fixed by civil law, as far as natural law is concerned, reprints and reproductions are lawful. Subsequent versions, moreover, are lawful all the more, because the damage that results to the author is even less perceptible. Waffelaert, followed by others, limits economic rights, always on the basis of natural law, to the first edition (cf. G. I. Waffelaert, De iustitia, I, Bruges 1885, pp. 132-133; E. Génicot-I. Salamans, Institutiones theol. mor., I, 16th ed., Brussels 1946, n. 477, p. 405).

In practice the common opinion holds that the civil laws concerning this matter bind in conscience, even before the sentence of a judge, being true determinations of a right of nature, not entirely clearly evident, with the exception of the laws that establish the taxes to be paid to the treasury, on the occasion of every repetition of any concert or work; these latter laws have only fiscal value.