Who decides the future of a collective work? Publisher, editor and authors between copyright, contracts and trade marks.

The publication of new editions of a collective work raises delicate questions: who has the right to ensure its continuity? What are the boundaries between the publisher's powers, the editor's role and the authors' prerogatives? An analysis of the principles governing the balance between copyright, contractual autonomy and distinctive signs in publishing.

The collective work: a plurality of legal positions.

The publication of a collective work - such as encyclopaedias, journals or treatises - is the result of the activity of a number of parties, each called upon to play a different but complementary role. Different legal positions coexist within it: the rights of the authors of the individual contributions, those of the editor tasked with coordinating and organising the work, and finally those of the publisher who oversees its publication and economic exploitation.

The legislature has drawn a clear line of demarcation. Article 7 of Law No. 633 of 22 April 1941 provides that the author of a collective work is whoever directs and organises it. Article 38 of Law 633/1941 grants the publisher, unless otherwise agreed, the exclusive right to economically exploit the collective work as a whole. This is a right belonging to the publisher in its own right, arising from the very creation of the work and not from any transfer of rights by the authors of the individual contributions. Individual authors are granted, under Article 42 of Law 633/1941, copyright over their own contribution, which may also be exploited separately, provided this does not prejudice the publisher's rights over the work as a whole.

The publishing contract and the time limits of the engagement.

The most significant difficulties do not arise at the stage when the work is conceived, but at the point when its continuity over time must be ensured: the publication of new editions, a change of editor, or the evolution of the publishing project can raise complex issues.

A central question is whether the long-standing editor of a collective work can claim a right to continue in that role for future editions. The legal system's answer is no. The publishing contract, governed by Articles 118 et seq. of Law 633/1941, may be concluded "per edition" or "for a term", but in both cases it has a maximum duration of twenty years from delivery of the manuscript. A contract "per edition" gives the publisher the right to produce one or more editions within that twenty-year period.

The Court of Cassation (order of 13 July 2018, No. 18726) clarified that a pre-emption clause included in a publishing contract does not restrict the author's freedom, since it does not eliminate the ability to dispose of one's own assets but merely limits the choice of contractual counterparty where conditions are equal. Applied to a collective work, this principle rules out any right of the editor to have the engagement indefinitely renewed: the contract governs the editions that are its subject matter, not future ones.

The new edition as an independent publishing project.

Once it is established that the editor does not hold an exclusive right to direct future editions, it must be assessed whether the publisher may lawfully produce a new edition of the work by entrusting it to a different editor. Case law recognises that a new edition, when it constitutes the expression of an independent publishing project, may be produced by the publisher while respecting the authors' moral rights, retaining ownership of the economic exploitation rights within the limits set by contract. The publisher, bearing the risk and cost of publication, is regarded as the author of the collective work by virtue of its own coordination and organisational activity, and is the holder of the related economic rights.

The moral rights of the authors of individual contributions, being inalienable, non-waivable and imprescriptible, remain intact even where the editor is replaced. The publisher must therefore act in a manner that respects the attribution and integrity of individual contributions, verifying that it has full availability of the related rights of economic exploitation.

The role of distinctive signs: trade marks and titles.

Alongside copyright rules, the continuity of a publishing project is also based on the proper management of the registered trade marks identifying the series or publication. The title of the work and the name of the series may benefit from dual protection: as a work of authorship under Article 100 of Law 633/1941, and as a registered trade mark, according to the now-prevailing view endorsed by the case law of the Court of Cassation (Cass. civ., 19 December 2008, No. 29774). The essential function of a trade mark is to guarantee to consumers the origin of goods or services, whereas copyright protects the attribution and integrity of the work.

The Court of Cassation (order of 7 August 2023, No. 23935) confirmed that protection of a work's title does not, in itself, prevent the lawful use of identical or similar signs as trade marks or series names, provided they perform a distinct identifying function and do not create confusion for the public. Verifying ownership and licensing of trade marks makes it possible to establish that the continuity of a publishing project does not depend exclusively on the figure of the editor, but is also grounded in the publisher's legal position as the lawful user of the distinctive signs.

Preventing litigation: a coherent decision-making process.

The possibility of entrusting a new edition to a different editor cannot be regarded as a mere organisational choice. Balancing the various rights involved requires a structured approach: precisely defining the content of the future engagement; verifying the status of individual contributions to be retained, updated or replaced; ensuring the proper management of the series' trade marks; and, finally, managing external communication carefully, emphasising continuity without suggesting that the previous editor holds an exclusive right to continue the work.

Ultimately, the best protection stems from the ability to map out in advance the rights involved, properly organise contractual relationships, and document a coherent decision-making process. This is an approach that proves essential not only in legal publishing, but in any field where established collective works must evolve over time, ensuring the continuity of the publishing project while respecting the positions of all parties involved.

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