Intellectual property (IP) refers to exclusive rights to intellectual creations and is divided into:
Industrial property concerns the protection and exploitation of research output with commercial potential. Such protection allows for a competitive advantage and recovers investments made in research and development.
Appropriate intellectual property rights protect research output. Industrial inventions, utility models and new plant varieties can be protected by patents, under the provisions of the Italian Industrial Property Code (Legislative Decree No. 30/2005, recently amended by Law No. 102/2023). Creative works, including software and databases, can be protected by copyright under the Copyright Law (Law No. 633/1941 and subsequent amendments and additions).
Intellectual property rights (IPR) give the owner the right to prevent and/or punish the unauthorised use of intellectual property by providing remedies to rights holders for damages caused and allowing them to benefit from their intellectual efforts and investments.
In Italy, copyright is regulated by Law 633/1941 and subsequent amendments. According to Article 1, “Creative works belonging to literature, music, the visual arts, architecture, theatre and cinematography are protected, regardless of their mode or form of expression.”
The Italian copyright system identifies two distinct areas.
Moral rights are acquired with the creation of the work, last forever, are inalienable, cannot be waived, can be exercised by the heirs, and concern:
● Authorship of the work (right of attribution)
● Integrity of the work: modification, distortion or mutilation
● Right to unpublished works
● Right to anonymity or to use a pseudonym
● Author’s honour and reputation.
Economic rights (rights of economic exploitation) are acquired upon creation of the work, allow the owner to exploit the work for commercial purposes, last for up to 70 years after the author's death, and may be licensed and/or transferred by the owner to third parties. These rights cover:
● Publication
● Reproduction (photocopies, scanning, etc.)
● Transcription
● Public performance, representation and recitation of the work
● Broadcasting or other types of communication to the public (including the transmission via the internet of material covered by copyright)
● Distribution
● Translation
● Adaptation (including software)
● Rental or lending
Open access and industrial property
Open access is a fundamental principle in the dissemination of knowledge, which aims to make research results freely available to the public, without financial, legal or technical barriers. However, when it comes to industrial property (e.g. patentable inventions), a balance must be struck between open access and the protection of the exclusive rights of owners.
Intellectual property rights, such as patents, offer a period of protection during which the owner holds exclusive rights to the invention, thus encouraging innovation and investment in research and development. After a period of secrecy of 18 months (Article 53 of the Industrial Property Code, Legislative Decree No. 30/2005, recently amended by Law No. 102/2023, and Article 93 of the European Patent Convention) from the filing of the patent application, the technical information relating to the invention is made public, contributing to the dissemination of knowledge and promoting further innovation. This mechanism allows owners to recover their research investments. The subsequent publication of the technical details of the invention allows knowledge to circulate within the scientific and technological community. In this way, a culture of collaborative innovation and technological progress is supported, while at the same time obtaining the necessary protection for stimulating industrial innovation.
Open access and copyright
As soon as intellectual work is produced, the author automatically acquires moral and economic copyright. In countries with a civil law system (such as Italy and, in general, non-Anglo-Saxon European countries), moral rights (including authorship of the work) remain permanently with the author and are inalienable.
On the contrary, economic rights can be transferred, in whole or in part, to third parties (e.g. publishing house, magazine) by the original owner (author). The transfer of rights from the author to the publisher normally takes place through a publishing contract and, for the duration of the agreement, the author cannot dispose of the rights that they have transferred exclusively. Alternatively, if the publisher wishes to reserve only the right of first publication, the author may grant their authorisation through a publishing licence.
When entering into the contract, authors who wish to release their work under a Creative Commons licence must ensure that they do not transfer all economic rights to the publisher; for example, they may transfer the rights to exploit the print edition to the publisher, but require that the digital edition be published in open access according to the terms of the chosen licence.
Creative Commons licences are incompatible with the phrase “All rights reserved”, as it is the specific licence chosen that defines which rights remain reserved and which are granted to third parties, according to pre-established conditions and without the need for subsequent authorisation.
In the case of public dissemination of an intellectual work for which no publishing contract is envisaged, for example, a research report to be archived in an open access repository, the author who still holds all economic rights may independently choose which Creative Commons licence to release their work under, subject to any binding requirements of the research funding body.
When signing the contract, it is advisable for the author to agree with the publisher specifically on the following uses of their work:
● Deposit in open-access institutional archives.
● Reproduction and dissemination, including derivative works, for educational and/or research purposes.
● Possible publication on institutional and/or personal websites and in other disciplinary archives.
It is also essential to eliminate or reduce the duration of any embargo, i.e. the period established by the publisher during which the work is subject to particular access restrictions.
If it is not possible to agree on a modification to the standard contract proposed by the publisher, the author may use an editorial addendum (SPARC Author Addendum). Technically, the addendum is an additional contract that aims to modify the publishing contract in order to reserve the rights that allow the authors to reuse their work.