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THE DEFINITION OF THE DISPUTE BY A FOREIGN JUDGE DOES NOT PREVENT FROM THE PROMOTION OF THE PREVENTIVE REGULATION ON THE JURISDICTION

18/07/2017

This is how the Joined Chambers of the Italian Supreme Court of Cassation, with decision of May 23, 2017, held following the motion for a regulation of jurisdiction filed by a South Korean company, pending proceedings on the merit before the Court of Nocera Inferiore aimed at ascertaining alleged contractual infringements.

 

In particular, the applicant requested the Supreme Court Judges to ascertain and declare the lack of jurisdiction of the Italian Judge, as a result of the arbitration clause inserted in the contract enforced by the other party and according to which the Arbitration Chamber of Seoul should have had the power to resolve any dispute arising out of, relating and/or connected to the contract itself. That clause had been previously enforced by the applicant with regard to the same matter subsequently brought to the attention of the Judges of Nocera Inferiore and the matter was decided by the Korean arbitrators on 16 May 2016.

With the present decision the Court of Cassation, by declaring the lack of jurisdiction of the Italian Judge, granted the appellant’s argument and specified that the promotion of the regulation of jurisdiction is not precluded by the decision held by the South Korean arbitrators, since the preclusion of the remedy whereof Art. 41, para 1, Italian Code of Civil Procedure, only applies to judgments issued by an Italian Judge, while it does not to judgments issued by the foreign court, which instead trigger the possible application of other legal instruments.


IMPORTANT REGULATORY INTERVENTION ABOUT THE INVENTION OF THE SELF-EMPLOYED

13/07/2017

On June 14, the Law of 22 May 2017 no. 81 entered into force, (“Jobs Act for self-employed persons”), which contains some measures concerning the issue of self-employed inventions, including in particular all rights relating to creative inventions and contributions, unless inventive activity is the subject of the contract of employment and is compensated for that purpose.

 

In particular, the regulatory intervention of the discussed topic of the right to self-employment is represented by Art. 4 of the aforementioned law, which states that: “Unless the inventive activity is foreseen as the subject of the employment contract and for that purpose compensated, the economic use rights relating to original contributions and inventions made in the performance of the contract are to self-employed person, in accordance with the provisions of Law 22 April 1941, no. 633, and the Industrial Property Code, as per Legislative Decree no. 30 “.

This article thus incorporates the principles already established in the case-law and doctrine that the self-employed person acquires all the rights to the invention, unless there is an employment agreement with the contractor for such inventive activity and a specific remuneration for this activity.

The legislative intervention in question thus clarifies the difference between self-employment contract rules and those laid down for the subordinate worker, where the employer is, however, entitled to acquire all the rights relating to the invention of the employee, unless otherwise agreed. While in the case of the subordinate worker the rules of the intellectual property code and copyright law shall apply the general principles of labor law and take into account as the holder of rights the role of the employer, resulting in the acquisition of all the faculties of the invention, in the case of the self-employed person is the opposite: the rights attaching to the creations of the self-employed person will be his / her title, unless the client has been concerned about disciplining and paying for the acquisition of the rights to the invention.

It is understood, therefore, that in the case of the self-employed person, the contractual text becomes the sole source of acquisition of the rights of the contractor and the careful preparation of the same is of crucial importance. This need does not exist if the invention is brought to an end by the subordinate worker since it is the same law that prescribes everything to the employer, provided that the inventive tasks are included in the contract.

There is then a further interpretative theme represented by the expression “original contributions” in the article. This expression appears at first glance generic and inaccurate. Indeed, the expression “original contributions” seems to have been deliberately chosen by the legislator in order to involve in a non-selective manner all the original works protected by the rules on intellectual property. However, the use of a generic and not technical expression makes it complex to determine whether the lawmaker intended to limit the novel to inventions and original creations to this assimilate, or whether it also wanted to intercept other than inventions, such as non-proprietary rights (know-how, copyright, etc.). At a first reading of the rule it would seem sustainable that the rule may also include works other than inventions, provided that there is the originality of the self-employed worker’s contribution.


APPEAL IS INADMISSIBLE IF THE ORIGINAL DEED IS NOT DIGITALLY UNDERSIGNED

05/07/2017

The Italian Supreme Court recently held that the lack of a digital signature on the original of the appeal deed determines the inadmissibility of the appeal itself on grounds that the legal challenge is non-existent and cannot be remedied even if the defendant joins the proceedings.

 

With judgment no. 14338 of 8 June 2017, the Italian Supreme Court once again considered one of the matters that has been most disputed in recent years, namely the consequences of the failure to comply with the regulations governing serving by lawyers via certified electronic mail. Such regulations, starting with Law no. 53/1994, have been subject to significant changes mostly brought about by the need to remain in line with the technological evolution of the IT instruments being used.

In this case, the Court of Appeal of Salerno held that the appeal commenced with the serving of a deed of appeal bereft of digital signature was inadmissible in so far as such a defect of the deed could not be remedied even if the defendant joined the proceedings and raised the relevant exception. The Supreme Court agreed with the Court of Appeal of Salerno on the point of inadmissibility but partly changed the decision of the lower court. The Supreme Court stated that the digital signature on the electronic deed is fully identical to the hand signature on a paper version of the deed and such a requirement must be understood to be a condition for the validity of the deed pursuant to art. 125 of the Code of Civil Procedure, in so far as it aides to trace the deed to a specific individual.

However, the Supreme Court held that what is relevant is not only the lack of digital signature of the served copy of the deed (a matter which the petitioner focused on), but also its omission from the original deed, a circumstance which unto itself is sufficient for determining the inadmissibility of the appeal.

The decision of the Italian Supreme Court for the first time abandons the previous “anti-formalistic” approaches that supported the attainment of the objective of a legal deed even if regulations on electronic serving were not fully complied with. This new approach, which initially helped avoid burdening judges with minor exceptions, has evidently led to the opposite result, that is to a total lack of compliance with procedure, which the Court decided to remedy.


“THE PIRATE BAY” CASE: THE COURT OF JUSTICE DECIDES THAT THE ADMINS OF A TORRENT FILE SHARING PLATFORM ARE ALSO LIABLE FOR COPYRIGHT INFRINGEMENT

23/06/2017

With judgment of 14 June 2017 in case C-610/15, the Court of Justice held that the making available on the Internet of content downloaded by users amounts to a “communication to the public”, an activity that requires the authorization of the copyright holder.

 

Stichting Brein is a Netherlands association that represents and protects the interests of copyright holders. This was a case in which the association sued before the Dutch courts requesting a blocking injunction against Ziggo and XS4ALL, access providers whose members for the most part use the online sharing platform “The Pirate Bay”. The injunction was asked so as to block the domain names and IP addresses of “The Pirate Bay”, with a view to avoiding that the services offered by the above mentioned providers could be used to infringe the copyright of entities or individuals whose interests Stichting Brein was required to protect. Stichting Brein succeeded at first instance, but saw its claims dismissed on appeal.

The Supreme Court of the Netherlands referred the case to the Court of Justice for a preliminary ruling and asked whether there is communication to the public, pursuant to art. 3, para. 1 of Directive 2001/29, on part of an Internet website administrator, where the website concerned does not have any protected works on it but instead is based on a system in which metadata related to protected works stored on users’ computers is categorized and indexed in such a way as to allow other users to find, upload and download the aforesaid protected works. In this judgment the Court of Justice held that the provision and management of an online sharing platform such as “The Pirate Bay” must be considered an act of communication to the public pursuant to directive 2001/29 and therefore may be allowed only with the prior authorization of the copyright holder.

The Court also held that the administrators of “The Pirate Bay” are not involved in a “mere provision” of physical equipment but instead carry out an essential role in the making available of protected works. Indeed, they act with full knowledge of the consequences of their behaviour, with the objective of providing access to the works and indexing and listing the “torrent files” that allow users to find the works and share them in a peer-to-peer exchange with and between other users. Moreover, communication of this sort concerns an indefinite number of potential recipients and extends to a significant number of people, as the administrators of “The Pirate Bay” themselves declared on the website.

Finally, the Court held that it was indisputable that the making available and the management of an online sharing platform, such as that of the main proceedings, were carried out with a view to profit, given that the aforesaid platform also produced considerable amounts of advertising revenue.


SOLE DIRECTOR OR BOARD OF DIRECTOR OF AN S.P.A. SEIZURE OF COMPENSATION WITHOUT THE RESTRICTIONS SET BY ART. 545 OF THE CODE OF CIVIL PROCEDURE

01/06/2017

The Supreme Court (Joint Divisions), with judgment of 20 January 2017, no. 1545, have decided that a sole director or board of director of an S.p.A. (Italian public limited company) are both bound by a corporate relation which – considering the organic identity that occurs between the natural person and the entity, as well as the absence of a requirement of coordination – is not included among those provided under no. 3 of art. 409 c.p.c.. It follows that the compensation due to the above mentioned subjects for the functions carried out in a corporate context can be seized without the restrictions pursuant to the fourth paragraph of art. 545 c.p.c..

 

Following the expropriation of goods in the possession of third parties, upon commencement of such procedure by a bank against a debtor, the first instance judgment decided that the bank should be awarded the total sum set aside by the third parties by way of compensation for their activities. The debtor was a director of one of the third party companies subjected to the seizure as well as a member of the board of directors of one other of such companies. The debtor opposed the interim judgment of assignment, arguing that his activity should be qualified differently, in particular, according to the director, it should fall within the scope of application of Article 409 number 3 of the Code of Civil Procedure, so that in fact a restriction to the seizure would apply (up to a fifth of the salary). The Court upheld the director’s opposition, qualifying the work carried out by the debtor as self-employed, which therefore limited to a fifth the assignment of the sums set aside by the third parties subjected to the seizure. The bank filed a petition to the Supreme Court.

The query submitted to the Joint Divisions of the Supreme Court was whether the determination of the relationship between the public limited company and its director could be qualified as self-employment or autonomous work and, consequently, whether the restrictions on the seizure of salary, equal to one fifth of that, as provided by the fourth paragraph of art. 545 c.p.c., could apply to compensation and wages of the director.

Until the decision in this case, the case law amounted to several consecutive decisions that traced their origins back to the 1980s, and from which two orientations emerged. One of these excluded that, in the context of a governance relationship, there could be an identification of two distinct centres of interest between whom there is an exchange of services, because the regime applicable to S.p.A.s is regulated in such a way as to confer on the director-representative the structural attributions of a body, thereby excluding the existence of a relationship of self-employment and upholding the so-called organic theory. A different orientation was that represented by the so-called contractual theory, which traced the disputes in question to art. 409 no. 3 c.p.c., viewing the relationship between the director and the S.p.A. as possessing the features of continuity and coordination with the activity carried out by the company, features that are required by the regulation in order to determine the jurisdiction ratione materiae of the employment law Court.

A solution to that debate was initially found by the Supreme Court (Joint Divisions) with judgment no. 10680 in 1994, a decision that favoured the qualification of the governance relationship as autonomous work, pursuant to art. 409 no. 3 of the c.p.c., on the basis that “within the corporate organization there are obligatory relations that arise from a continuous, coordinated and prevalent activity, and it is irrelevant that the director is not in a weak contractual position vis-à-vis the company”.

With the present judgment, the Supreme Court (Joint Divisions), annulled the decision appealed by the creditor and rejected the opposition filed by the debtor. The Supreme Court held that the principle stated by the Court of first instance on the restrictions applicable to the credit was wrong, and instead decided that the compensation due to the directors for the activities carried out within a corporate context can be seized in their entirety.