Immaterial Property

IMMATERIAL PROPERTY. — The problem concerning the classification of the so-called “rights over immaterial goods” has been seriously debated. Opposed to the thesis that places such rights in the same category as rights in rem is the view that considers them an autonomous class of patrimonial rights, even though they present considerable structural analogies with rights in rem. The solution can be found only by determining whether or not the corporeality of the thing is an essential distinguishing characteristic of rights in rem, a question that has not been resolved unanimously. It is sufficient here to note that, even if such rights are assimilated to the real right of ownership, they undoubtedly constitute ownership presenting special legal characteristics, dependent upon the special nature of its object. Subject to this reservation, one may also speak of i. p., that is, ownership of immaterial goods or incorporeal things.

One of the principal manifestations of such i. p. is constituted by the patrimonial copyright. This has

as its object a good (a work of the intellect) that is external to the person and capable of having its own distinct economic utility.

According to Carnelutti’s expression, a work of the intellect is an idea, that is, a thought formulated and introduced into an external quid that receives it by containing it (the so-called corpus mechanicum); being the product of the creative activity of the subject, it is connected with the latter by a relationship of a genetic nature, which, however, does not compromise its externality in relation to the subject. Indeed, the fact that it is produced by the activity of the subject does not exclude the object’s constituting a quid detached from the person and existing outside it; its genesis must not be confused with its existence. Externality is not eliminated even by the preservation of the personal imprint of the creating subject (author). In the same way, the material parts of the human body, once detached from it, are things and the object of the right of ownership of the person from whose body they have become detached. A work of the intellect, conceived in this way, is in itself capable of economic exploitation: this, in fact, is possible not only with corporeal things.

I. LEGISLATION

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

It arises following an act of intellectual creation. Article 6 of the copyright law provides: « The original title to the acquisition of copyright is constituted by the creation of the work, as a particular expression of intellectual labour »; and this provision is repeated verbatim in Article 2576 of the Civil Code. The creation of the work is a condition for the acquisition of copyright: indeed, an intellectual work cannot be the object of a right unless it has itself been created and therefore exists. Before the creative act, the freedom to give life, or not to give life, to the intellectual work constitutes nothing other than a particular manifestation of the general right to freedom. Naturally, this creation must not have remained in an internal state: indeed, the idea acquires no social importance or legal significance until it has been externally formulated. It is only at this moment, when the possibility of knowledge by third parties arises, that the problem concerning the protection of the creator vis-à-vis those same third parties emerges—a problem resolved by the legal system through the attribution to that person of copyright (v. PROPRIETÀ LETTERARIA).

It should be noted that the author’s patrimonial right does not exhaust all the powers attributed to the author. In the aforementioned copyright law, Articles 12–19, concerning the « protection of the economic exploitation of the work », are followed by Articles 20–24, concerning the « protection of rights in the work in defence of the author’s personality (the author’s moral right) ». Thus, the legislature itself classifies separately those powers that do not concern the economic exploitation of the work, grouping them under the single designation of « the author’s moral right ».

The latter—which, in the course of historical development, found recognition later than the author’s patrimonial right—constitutes a private right whose object is not the intellectual work, a patrimonial asset, but rather the personal asset of intellectual authorship (the moral mode of being of the author’s person): it concerns a different asset, not a different interest relating to the same asset. Moreover, although at the moment of its arising it belongs to the same person to whom the author’s patrimonial right belongs, it may subsequently lead an autonomous existence. Thus, its distinction from the latter is certain; unlike it, it constitutes a personality right.

A particular kind of the author’s patrimonial right is constituted by the inventor’s patrimonial right. The intellectual work may also concern the industrial field: in that case, there is a particular kind of intellectual work, namely the invention, which is characterised by its practical purpose. Another manifestation of i. p. may be found in the right to an extra-personal name, designating not a person but an extra-personal entity.

name (v.), although acquiring particular social and legal importance insofar as it serves to identify persons, remains in all cases a general means of language, capable of indicating any conceivable entity. Consequently, it must be examined what attitude the legal system adopts towards the extra-personal name designating extra-personal entities. As a preliminary clarification, it should be stated that the extra-personal name serves to realise, 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, concerns an interest relating to an asset that does not constitute a mode of personal being; and the subjective right in such an asset is characterised as a right in an immaterial asset rather than as a personality right.

There is no protection of the extra-personal name equal in scope to the protection of the personal name. The legal system has sought to guarantee the person—every person—the protection of his or her personal identity, not the protection of the identity of each of his or her things. The subject does not possess the right to the exclusive use of the distinctive sign attributed to any thing forming part of his property: for example, an animal, a villa, and so forth. Otherwise, through excessively serious limitations on the freedom of third parties, the legal system would reveal itself to be excessively burdensome and intrusive. Nevertheless, among extra-personal entities, the undertaking is of such importance as to require protection of the name designating it; this name is more specifically called, in the same legislative language (Articles 2563 et seq. of the Civil Code), the business name.

The question whether the business name properly designates the undertaking, the business establishment, or both cannot be addressed here. What is certain is that the business name, understood as the distinctive sign of the business establishment or undertaking, is not a personal distinctive sign, since neither the business establishment nor the undertaking is a person. With regard to the business name so understood, there can undoubtedly be no talk of a personality right; on the contrary, a transferable patrimonial right emerges (cf. Art. 2565), classifiable within the category of rights in immaterial assets.

It must, however, be emphasised that the business name is also a mode of personal designation. Indeed, it is not merely a distinctive sign of the undertaking, but also a distinctive sign of the undertaking’s proprietor. It therefore has a dual aspect, objective and subjective: alongside the objective business name, one may speak of the subjective business name, designating the proprietor of the undertaking in the exercise thereof.

Considered in every respect, and therefore also in its objective aspect, the business name presents, as regards its composition, a connection with the civil name of the entrepreneur. Indeed, in the composition of the business name, the ownership of the undertaking is always relevant. It may happen that the business name fully corresponds to the entrepreneur’s civil name. If it does not fully correspond to it, it must contain at least the entrepreneur’s surname or initials (Art. 2563, second paragraph; cf. Art. 2566 for the sanction consisting in refusal of registration). Thus, in addition to having a subjective (personal) aspect, the business name also presents, in its objective aspect, a connection with the fundamental designation of the person (civil name).

First of all, a distinction must be made between the exclusively moral interest, which consists in 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 indisputably holds ownership. The foundation of this right lies in the fact that production is an original means of acquisition: from his own gifts and abilities man must draw the means of attaining his end. Limitations to this right may nevertheless arise from the exercise of productive activity carried out under the direction of others or using the property of others; and also from society, which, for the common good, may place limits even on this kind of property, given the social function of material and immaterial goods as well. These limits, however, can never be extended so far as to render the right of the holder of dominion purely nominal. Likewise, by natural law, 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 law alone, to limit the extent of these rights. It is therefore not surprising that among theologians, in this effort at further determination, various opinions are found.

For a proper understanding of these various opinions, the following observations should be kept in mind. The economic advantages inherent in the so-called copyrights, besides being of relatively recent origin (in the case of literary property they date back to the invention of the printing art and were originally granted in the form of princely privileges), are, rather than fruits of the product of the intellect, revenues due under the contract to which the dissemination of the discovery or the publication of the work was made subject. The assertion of authorship of the work, the fame that follows from it, and the right to have the author’s name retained are instead rights that derive from the product of the intellect itself. The capacity for invention is in fact part of the excellence of the person, and, insofar as it is inferred from the thing, must be referred to the author. Since the author is identified by his name, this is ordinarily the necessary and inviolable means by which the fame and glory that follow can and must be attributed to him.

With this premise, here are the principal opinions concerning the value of copyrights in relation to natural law. 1) Some authors assert that the principal moral right, namely, recognition of the authorship of a work, invention, etc., has its basis in natural law; the other moral rights and the economic rights, on the other hand, derive their force from positive law, because an idea, once expressed, becomes common property and can no longer be the object of ownership (P. H. Marres, De iustitia, I, Ruremund 1879, pp. 28-29; A. Vermersch, Quæcisiones de iustitia, Bruges 1904, pp. 319-23). Consequently, having regard to natural law alone, appropriating, for one’s own purposes, another’s work or invention already communicated, or a printed literary work, would not be illicit, provided that the authorship of the work were always acknowledged. 2) Others believe that all moral and economic rights derive from natural law. They reserve for the author, for example, not only the first edition of a literary, musical, etc., work, but also 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, VIKTOR, Philosophia moralis, Freiburg i. Br. 1927, pp. 324-26). The first opinion seems to disregard too greatly the natural rights over the fruits of one’s own labor or intellect. Production is in fact, though not absolutely, as has been said, an original title to the acquisition of property. The second opinion, on the other hand, errs through incompleteness and imprecision, since it does not establish exact limits concerning the extent of copyright on the basis of natural law alone. 3) Finally, other authors incline toward the following concepts: reprinting or reproducing another’s works immediately thereafter would be prohibited by natural law itself if the author’s consent were lacking. Once this period has elapsed, ordinarily fixed by civil law, reprints and reproductions are lawful as far as natural law is concerned. Subsequent versions, moreover, are lawful all the more, because the damage they cause the author is even less perceptible. Waffelaert,

followed by others, limits economic rights, again 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 civil laws concerning this matter bind in conscience, even before the judge’s ruling, since they are genuine determinations of a natural right that is not entirely clear and manifest, with the exception of laws establishing the taxes to be paid to the treasury on the occasion of each repetition of any concerto or work; the latter laws have only fiscal value.

(Alinari photograph)

PROSDOCIMO, saint — S. P. Detail of a politico by A. Mantegna (1453-1454) — Milan, Pinacoteca di Brera.