By its recent judgment No. 302/2026, the Florence Court ruled on the ownership of economic exploitation rights and on the applicability of Article 110 of Law No. 633/1941, with specific reference to works created on commission.
The ruling of the Florence Court.
The case at hand concerns a work created on commission within the framework of a scientific project, in which a researcher took part.
As is well known, Article 2 of Law No. 633/1941 (hereinafter, the “Copyright Law”) affords protection, inter alia, to “literary, dramatic, scientific, educational and religious works, whether in written or oral form”.
With reference to works created on commission, the Supreme Court has already clarified that “in matters of copyright, the exclusive ownership of economic exploitation rights, in respect of intellectual works created on commission, vests in the commissioning party only where the inventive activity and the creation of the work constitute the object of a self-employment or works contract” (see Court of Cassation, No. 19335/2022).
In the present case, the Florence Court - having ascertained the role of the researcher as “co-author”- also found that she participated in the project upon the specific commission of the commissioning company.
In line with the principles already clarified by the Supreme Court, the Florence Court held that the commissioning party must be deemed the owner of the economic exploitation rights in relation to the scientific work created upon its commission.
It should also be recalled that there has been considerable debate as to whether the commissioning party acquires the economic exploitation rights in an intellectual work on an original basis or on a derivative basis. Adhering to one or the other approach is also relevant in determining when Article 110 of the Copyright Law - concerning the “transfer” of rights - should be deemed applicable.
Article 110 of the Copyright Law.
Returning to the case at hand, the Florence Court then addressed a further issue, namely the applicability (or otherwise) of Article 110 of the Copyright Law, pursuant to which “the transfer of exploitation rights must be evidenced in writing”.
On this point, the Court held that Article 110 of the Copyright Law does not apply, clarifying that “the provision set out in Article 110 of the Copyright Law, according to which the transfer of exploitation rights must be evidenced in writing, refers to cases in which economic rights are, in fact, the subject of assignment. In the present case, by contrast, [the commissioning party] is directly vested with the exploitation rights in the project, since it was created upon its commission, with the consequence that the provision of the Copyright Law is inapplicable”.
Lawyer Maria Eleonora Nardocci