IMMATERIAL PROPERTY. – The problem concerning the classification of the so-called “rights in immaterial goods” has been hotly debated. To the thesis that includes such rights within the same category as real rights, there stands the view that considers them as an autonomous class of patrimonial rights, albeit presenting notable structural analogies with real rights. The solution can only be found by establishing whether the corporeality of the thing is an essential distinguishing feature of real rights, a question that is not unanimously resolved. Suffice it here to note that, even if such rights are assimilated to the real right of property, it is beyond doubt that they pertain to a form of property displaying special juridical characteristics, dependent on the special nature of its object. With this reservation in mind, one may also speak of immaterial property, i.e., property in immaterial goods or incorporeal things.
One of the principal manifestations of such immaterial property is constituted by the patrimonial right of authorship. This has
as its object a good (a work of the intellect) that is external to the person and capable of possessing its own distinct economic utility.
In the words of Carnelutti, a work of the intellect is an idea, or a thought formulated and impressed upon an external *quid* that receives and contains it (the so-called *corpus mechanicum*); being the product of the subject’s creative activity, it is linked to the latter by a relationship of a genetic nature, which, however, does not prejudice its externality with respect to the subject. Indeed, the fact that it is produced by the subject’s activity does not exclude the object from being a *quid* detached from the person and existing outside of it; one must not confuse genesis with existence. Externality is not eliminated even by the preservation of the personal imprint of the creating subject (the author). In the same way, the material parts of the human body, once detached from it, become things, objects of the right of property of the person to whom they belong. Thus conceived, the work of the intellect is capable, in and of itself, of economic utilization: this is indeed possible not only for corporeal things.
I. Legislation
The legal order protects the possibility of economic utilization by the author (arts. 12 et seq. of the law of 22 Apr. 1941, no. 633, concerning the protection of copyright; art. 2577, 1st para., Civil Code): and thus the author’s right in the work of the intellect, created by him, is configured as a patrimonial right.As has been said, this right constitutes one of the principal manifestations of immaterial property; more precisely, it is termed intellectual property, a term that has come into wide use.
It arises through an act of intellectual creation. Art. 6 of the copyright law states: “The original title of acquisition of the right of authorship is constituted by the creation of the work, as a particular expression of intellectual labor”; and this norm is repeated verbatim in art. 2576 of the Civil Code. The creation of the work is a condition for the acquisition of the right of authorship: indeed, a work of the intellect cannot be the object of a right if it has not itself been created and hence does not exist. Before the creative act, the freedom to bring a work of the intellect into being or not is merely a particular manifestation of the general right to freedom. Naturally, it is necessary that this creation not remain merely internal; indeed, the idea does not acquire social importance or juridical relevance until it is formulated externally. It is only at this moment, when the possibility of third parties becoming aware of it arises, that the problem concerning the protection of the subject of the creation vis-à-vis those same third parties emerges, a problem resolved by the legal order through the attribution to the aforementioned subject of the right of authorship (cf. also PROPRIETÀ TERRARIA).
It should be noted that the patrimonial right of authorship does not exhaust all the powers attributed to the author. In the cited copyright law, arts. 12–19, concerning “the protection of the economic utilization of the work,” are followed by arts. 20–24, concerning “the protection of rights in the work for the defense of the author’s personality (moral right of the author).” Thus, the legislator himself classifies separately those powers that do not concern the economic utilization of the work, grouping them under the single denomination of “moral right of the author.”
The latter—which, in historical evolution, found its affirmation later than the patrimonial right of authorship—constitutes a private right having as its object not the work of the intellect as such, but the personal goods of intellectual paternity (the moral mode of being of the person of the author himself): it is a different good, not a different interest in the same good. Moreover, although it belongs, at the moment of its arising, to the same subject to whom the patrimonial right of authorship belongs, it may subsequently have an autonomous existence. Thus, its distinction from the latter is certain, unlike the latter it constitutes a right of personality.
A particular species of the patrimonial right of authorship is constituted by the patrimonial right of the inventor. The work of the intellect may also concern the industrial field: one then has a particular species of work of the intellect, 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, not the person, but an extrapersonal entity.
The name (v.), although acquiring particular social and juridical importance insofar as it serves to indicate persons, is nonetheless a general means of language, capable of indicating any conceivable entity. Consequently, one must investigate the attitude of the legal order toward the extrapersonal name, designating extrapersonal entities. It must be permitted, by way of clarification, to note that the extrapersonal name serves to realize, not personal identity, but 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, pertains to an interest in a good that does not constitute a personal mode of being; and the subjective right in such a good is qualified as a right in the good itself rather than as a right of personality.
There does not exist a protection of the extrapersonal name of the same scope as the protection of the personal name. The legal order has wished to guarantee to the person (to every person) the protection of his personal identity, not the protection of the identity of every thing belonging to him. The subject does not have the right 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 the excessively severe limitations on the freedom of third parties, the legal order would reveal itself to be excessively cumbersome and intrusive. However, among extrapersonal entities, the enterprise has such importance as to require the protection of the name that designates it, which is more specifically termed, in legislative language as well (arts. 2563 et seq. Civil Code), *ditta* (firm name).
The problem whether the *ditta* properly designates the enterprise, the business, or both cannot be addressed here. What is certain is that the *ditta*, understood as the distinctive sign of the business or the enterprise, is not a personal distinctive sign, since neither the business nor the enterprise is a person. With respect to the *ditta* thus understood, there can undoubtedly be no talk of a right of personality; on the contrary, a transmissible patrimonial right emerges (cf. art. 2565), classifiable within the category of rights in immaterial goods.
It should be noted that the firm name is also a mode of personal designation. In truth, it is not merely a distinctive sign of the enterprise but also a distinctive sign of the owner of the enterprise. It therefore has a dual aspect, objective and subjective: alongside the objective firm name, one may speak of the subjective firm name, designating the owner of the enterprise in the conduct of the business.
Considered from every aspect, and thus also from the objective one, the firm name presents a connection, in its composition, with the civil name of the entrepreneur. Indeed, in the composition of the firm name, the ownership of the enterprise is always significant. It may happen that the firm name fully corresponds to the civil name of the entrepreneur. If it does not correspond fully, it must at least contain the surname or the initials of the latter (art. 2563 of the civil code; cf. art. 2566 regarding the sanction consisting in the refusal of registration). The firm name, therefore, besides having a subjective (personal) aspect, also presents, even under the objective aspect, a connection with the fundamental designation of the person (civil name).
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**II. Moral Principles.** — The question arises whether copyright has its foundation in natural law.
First of all, it is necessary to distinguish between the purely moral interest, which consists in the recognition of the authorship of the work, and the economic interest. There is no doubt that man, by nature, has rights over the product of his own intellect and industry, obtained by utilizing things of which he has undisputed ownership. The foundation of this right lies in the fact that production is an original mode of acquisition: from his own talents and abilities, man must derive the means to achieve his end. Limits to this right, however, may arise from the exercise of productive activity, performed in the employ of others or using things belonging to others; and also from society, which, for the common good, may impose limits even on this kind of property, given the social function of both material and immaterial goods. These limits, however, can never be extended so far as to render the right of the owner purely nominal. Similarly, by natural law, man has rights over the fruits that flow from his actions, such as honor, fame, and various advantages. It is difficult, however, solely by natural law, to delimit the extent of these rights. It is therefore not surprising that among theologians there are differing opinions on this further determination.
For a correct understanding of these various opinions, the following observations must be kept in mind. The economic advantages inherent in so-called copyright, besides being of rather recent origin (for literary property, they date to the invention of the printing press and were originally granted in the form of privileges by princes), are more the fruits of the contract to which the disclosure of the discovery or the publication of the work was subordinated than the fruits of the product of the intellect. The recognition of the authorship of the work, the fame that follows from it, and the right to maintain the author’s name, however, are rights that pertain to the product of the intellect itself. The capacity for invention is indeed part of the excellence of the person, which, insofar as it is derived from the thing, must be attributed to the author. When the author is indicated by his name, ordinarily this is the necessary and inviolable means by which the fame and glory that follow can and must be attributed to the author.
With this premise, here are the main opinions on the value of copyright 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 rights, however, derive their force from positive law, because the idea, once externalized, becomes common property and can no longer be the object of property (P. H. Marres, *De iustitia*, I, Rurumund 1879, pp. 28-29; A. Vermersch, *Quaestiones de iustitia*, Bruges 1904, pp. 319-23). Therefore, solely by natural law, appropriating, for one’s own purposes, the work, invention, or printed literary work of another, once communicated or published, would not be illicit, except for the recognition of the authorship of the work. 2) Others believe that all moral and economic rights derive from the right of nature. They reserve for the author, for example, not only the first edition of a literary or musical 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 im Br. 1910, no. 1076; A. van Gestel, *De iustitia et lege civili*, Groningen 1896, pp. 148-50; V. CATHREIN, VIKTOR, *Philosophia moralis*, Freiburg im Br. 1927, pp. 324-26). The first opinion seems to disregard too much the natural rights over the fruits of one’s own labor or intellect. Production, in fact, is in itself, albeit not absolutely, as has been said, an original title of acquisition of property. The second opinion, however, errs in its incompleteness and imprecision, failing to provide exact limits on the extent of copyright based solely on natural law. 3) Other authors, finally, lean toward these concepts: reprinting or reproducing another’s works in the immediately following period would be prohibited by natural law itself if the author’s consent is lacking. After this period, ordinarily fixed by civil law, as regards natural law, reprints and reproductions are licit. Subsequent editions, then, are all the more licit, because the harm thereby caused to the author is even less perceptible. Waffelaert