Published on Wednesday, February 2nd, 2011
Without going into technical details about the iBiennale
application, the concern here is mostly related to the new forms of intellectual property’s exploitation made possible by new technologies and all related legal issues.
It is generally established that all forms of intellectual property fall within the exclusive use of an author corresponding to a specific right to economic exploitation of the work to be separately and explicitly transferred from the author at the conclusion of the contracts prior to the publication and marketing of the work. When applying such principles that rule the matter of copyright if - for example - the author allows the display of his own artistic creation as part of an exhibition, he must authorize both the photographic reproduction of the work in order for it to be published in the printed catalogue of the exhibition, and the diffusion of the artwork on the Internet.
With reference as to the management and negotiation of copyright the iPad can be considered as a new tool to surf the internet (evenly compared with new phones) and, as such, is a means to communicate the work to the public and make it available "so that everyone can access it at the place and time individually chosen”
, under art. 16 of the Copyright Act (Act April 22, 1941 No 633 and its subsequent amendments). Therefore, if the author has approved the above contract - with the use of appropriate and well-drafted contract terms – , hence allowing the communication of the artwork to the public through the Internet, one could argue that the diffusion on the Internet through iPad has also been authorized.
Several conclusions should be drawn in case the contract doesn’t mention in any way the communication and dissemination of the work through the internet: just think of those contracts developed when the internet did not reach today's levels of development or was not even existing. The problem arising in such cases is whether or not to renegotiate such rights from scratch, since - according to general principles of copyright law – there is no intention to transfer future rights, namely those which, at the time of signing the contract, did not exist because there was one particular form of exploitation of the work. Strictly speaking, then, in the presence of older contracts that do not involve the exploitation of the work through Internet, a new contract would be required for the transfer of these new forms of exploitation. In fact, a condition of legal uncertainty seldom occurs when facing the ownership rights.
d’ammassa & associati law office
*Article featured on Exibart.onpaper n. 68.