On June 14th, 2017, Law no. 81 of May 22nd, 2017 came into force. The law embodies “Measures to protect non-entrepreneurial self-employment and measures aimed at promoting flexible organisation in the time and place of subordinate job” (i.e. Jobs Act for self-employed persons).
In particular, among the new measures implemented by the aforementioned law, it is worth highlighting the regulation of inventions realised by self-employed individuals provided for by article 4. According to said article: “Without prejudice to the case in which the inventive activity is the object of the employment contract and, as such, is remunerated, the exploitation rights of the original contributions and of the inventions realised during the performance of the contract are due to the self-employed according to the provisions set forth in Law no. 633 of April 22nd, 1941 and in the Industrial Property Code, i.e. Legislative Decree no. 30 of February 10th, 2005”.
By means of this provision, the legislator intended to fill the legal vacuum concerning the inventive activity of the self-employed, by implementing a principle already expressed by the Courts: according to such a principle – by virtue of the analogous application of article 64 of the Industrial Property Code that refers to the inventions of the employee and taking into account the principle by which the one who has commissioned the original work acquires it – the rights of economic exploitation arising from the inventive activity carried out by the self-employed are automatically acquired by the employer, provided that the inventions fall under the scope of the assignment conferred to the self-employed (see for instance, Court of Milan, May 27th, 2014, no. 6964).
With the entry into force of the provision under examination, the regulation of the original contributions and of the inventions of the employee, which so far have been represented exclusively by provisions relating to subordinate employment (meaning the above-mentioned article 64 of the Industrial Property Code and articles 12 bis, 12 ter and 88 of the Copyright Law, that refer respectively to computer programmes and databases, industrial designs and photographs realised by the employee) is finally complete.
Thus, the provision shall be welcomed. However, it is worth pointing out an issue that has already been noted by some, namely the fact that the non-technical character of expression inherent to “original contributions” may give rise to applicative problems: indeed, it is difficult to understand whether such an expression shall refer exclusively to intellectual work pursuant to the copyright law or if it may also include different types of intellectual contributions (for instance, the invention of trademarks).
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