The Supreme Court’s recent ruling No. 19335 of 15 June has reopened reflections on the subject of intellectual works created on commission by self-employed persons.
Elisabetta Berti Arnoaldi and Francesca La Rocca analysed the pronouncement in the article: Works on commission and ownership of economic use rights, published by NT Plus Diritto de Il Sole24ore.
The debate on the topic concerns in particular the property rights: whether they belong to the commissioner by the mere fact of the creation of the work for which the commission was conferred or as a result of the specific provisions of the contract.
The judgement, which concerns an assignment for the graphic design of packaging for medicinal products and therapeutic indications prepared by the principal, marks a point in favour of the second thesis. It states that a distinction must be made between genuine creative work and graphic creation on binding instructions from the client. In the latter case, the rights of economic use of the creative work remain with the graphic designer, who is entitled not to hand over the source CD files to the client and to possibly dispose of their use against payment of a price in addition to that agreed upon for the executables.
A further element of interest in the judgment is the reference to the Jobs Act of self-employment (2017) which in Art. 4 provides, except where the creative activity is envisaged as the subject matter of the contract of employment and compensated for that purpose, that the rights of economic use relating to original contributions and inventions made in the performance of a contract shall vest in the self-employed worker.