The Industrial Property Law and the Moral Right of Publication

Abstract

Moral rights are usually seen in the copyright field and less in the industrial property law. This is formally justified by the specificity of the copyright creation that reflects the author’s personality and therefore needs to be protected beyond its economic side towards the person of the creator by the moral rights. From this perspective the industrial property creation seems to be more closely bound to the commercial distribution and less affected by the author’s personality. But in reality this argument is not valid, because the intellectual creation is more or less impersonal either in copyright law or industrial property law. It is too simple minded to consider that the intellectual creation, as it has an author, could be more personal in the copyright area and less personal in the industrial property domain. It is inconceivable to sustain that the copyright creation is ”forged” by the author more for himself and less to the general public as it is impossible to argue that the industrial creation does not reflect its author personality, as if it could by created by a robot. The consequence is that we have moral rights in the industrial property sphere with all the so known consequences over the economic rights that are powerfully influenced by the moral prerogatives and by the protuberant statute of the author. The most important moral right is the right of publication well bound to the economic rights, so closely that some scholars argue that before the exercise of the right of publication we do not have any economic rights. This opinion ignores completely the case of an undisputed publication of the intellectual creation and the exhaustion of the right of publication.