Moral rights and industrial design
Giorgio Alfredo Spedicato · Edward Elgar Publishing eBooks · 2023
In the intellectual property domain, one instinctively tends to associate the notion of “moral rights” with copyright, and especially with the (more clearly author-centric) legal framework associated with copyright in the countries of continental Europe. During the twentieth century, however, the need for protecting the personality interests of creators progressively exceeded the limited scope of copyright, and currently moral rights are no longer the exclusive prerogative of authors of copyrighted works, but are granted by some (primarily continental European) legislations even to certain creators of immaterial goods protected by an industrial property right. In this context, the sector of industrial design is rather unique, because it is significantly more heterogeneous than other areas of industrial property: it protects creations of a markedly, although not exclusively, functional nature, creations that are both functional and aesthetic, and even creations that are almost exclusively aesthetic. The considerable heterogeneity of this conceptual category makes it significantly more complex, compared to other areas of industrial property, to provide a single response to the question of what should be the most appropriate level of protection for the designer’s personality. A further level of complexity is given by the fact that industrial design can be protected by either an ad hoc industrial property right (design right) and/or by copyright, posing problems of harmonization of the norms regarding moral rights of one or the other sector. In this chapter, the author examines in the first place the different scope of the paternity right applicable to industrial design protected by a design right, on the one hand, and by copyright, on the other hand, and the consequences of such overlapping protections. Second, the author examines how further moral rights granted to the author of a copyright-protected work of industrial design (right of integrity, right of disclosure and right of retraction) can be applied to largely functional work, such as works of industrial design. Third, finally, the author questions whether paternity right can also be recognized with respect to creations of industrial design made autonomously by AI systems.