The Ownership Problems of Overlaps in European Intellectual Property

15 – The legal framework of ownership and overlaps I 17 Introduction: the problem A. 17 The phenomenon of overlaps 1. 17 Why are split ownerships a problem? 2. 22 Methodology 3. 26 Sequence 4. 28 The ownership of copyright B. 29 Author’s rights vs. copyright 1. 30 Special cases of ownership 2. 32 Employee’s creations a) 33 Work for hire 1. 33 Presumed assignment or licence 2. 34 Several authors b) 35 Joint Works 1. 35 Connected works 2. 36 Collective works 3. 37 Copyright in cinematographic works 4. 38 – Cases of ownership problems of overlaps II 40 The case of trade marks & designs A. 40 The case of trade marks & copyright B. 45 The case of registered designs & copyright C. 50 The case of databases: sui generis right & copyright D. 56 The case of software and computer implemented inventions E. 61 – Possible solutions to the problem III 65 The extent of the problem A. 65


Foreword
This small book is the result of a Master thesis written between July and early September 2013, minor corrections and updates having been made. Intellectual Property is indeed a fascinating subject, though an ever-changing one. It is my faint hope that the fundamental thoughts expressed here can still bear some validity and interest in the upcoming years. I would be glad to get any comments, suggestions or ideas by mail (nsousaesil-va@gmail.com).
In the process of writing this thesis I have thoroughly benefited from the physical and human resources of the MIPLC. I am deeply indebted to all the people that with small or big comments and conversations have expanded my knowledge and perspectives on this and many other topics, not only related to Intellectual Property. I must specially mention Domink Niedersüss for his meticulous reading of my thesis followed by the proverbial G and T and the "three cool cats": Paraskevi, Kothainaiki and Kalliopi.
I am also obliged to Professor Matthias Leistner for his careful, precious and ready guidance. I owe gratitude to my aunt Julie and uncle Luis Miguel for the generosity of an attentive reading of the final text.
I remain thankful to my parents in every breath I take.
Finally, I want to thank Rita for showing me that "like billowing clouds, like the incessant gurgle of the brook, the longing of the spirit can never be stilled" (Hildegard von Bingen). The paper ponders and suggests some solutions to the problem, namely the convergence of ownership rules, the avoidance of overlaps tout court, the prevalence of the closest regime, abuse of rights, implied licences, and expanding copyright solutions by analogy. It is suggested that the latter is the best approach even though a combination of some of the mechanisms described is to be expected. It concludes by considering possible legislative intervention and the form it might take.

-The legal framework of ownership and overlaps
Introduction: the problem The phenomenon of overlaps When we look at a product we seldom realise the wide range of intangible goods it often embodies. 1 The design of the product, defining its appearance, may also be seen as an indication of origin (shape trade mark); its logo may be a work protected by copyright but can constitute a trade mark as well; additionally, some of the functional features of the product may be protected by patents (or utility models/petty patents). 2 Thus several underlying intangible goods coexist in that single product: its aesthetic appearance, its ability to indicate an origin and its functionality. Furthermore, the same intangible achievement might be protected by more than a single Intellectual Property right. For example, goodwill 3 -an intangible good -might be protected simultaneously by trade mark and design laws. It is true that one of the purposes of trade mark law is to protect I A. 1.
1 On the notion of intangible goods (immaterialgüter)  goodwill in a certain sign 4 whilst the protection dispensed by design law to that intangible good (goodwill) is only a consequence of the protection of another intangible good: the aesthetic appearance. 5 In fact, almost all IP rights protect more than one intangible good, even though they are devised with a function, an objective. They aim to protect a certain achievement or investment. As stated in CJEU's jurisprudence, developed mainly in the field of exhaustion, each IP right has its specific subject matter. 6 When two IP rights protect the same "manifestation", be it a computer program, 7 an original database or the shape of a product, this results in the so-called overlapping protection of Intellectual Property rights, also called objective cumulation (cumulation regarding the same object). 4 In most recent times the CJEU has simultaneously recognized several functions to trade marks and established an additional requirement for infringement: the adverse affection of a protected function of the trade mark. The functions mentioned by the Court in an apparently non-exhaustive list are "not only the essential function of the trade mark, which is to guarantee to consumers the origin of the goods or services, but also its other functions, in particular that of guaranteeing the quality of the goods or services in question and those of communication, investment or advertising" (Case  [1971] ECR 487 para 11. This notion has been criticised as illogical and wrong C G Miller, 'Magill: Time to abandond the "specific subject matter" concept' [1993] EIPR 415. To our purposes it is just another way of highlighting that each Intellectual Property Right has function(s) that explain its form.
Making that analysis in the context of trade mark law see I S Fhima, 'How Does 'Essential Function' Doctrine Drive European Trade Mark Law? ' [2005] IIC 401. 7 Which can be decomposed in two different realities: software, protected by copyright and a computer implemented invention, protected by patents.

I -The legal framework of ownership and overlaps
This phenomenon of overlaps, 8 i.e. the co-existence of different exclusive rights whose object is the same, occurs more and more as a result of the expansion of intellectual property 9 and poses a whole range of problems. 10 The term "object" is used here to signify the manifestation that will attract protection. In the case of overlaps the object of the converging rights is the same although the intangible subject matter is normally different. For instance in the case of databases, copyright protects the expression, i.e. the original arrangement, whereas the sui generis right will protect the investment put into the creation of such a database. The same happens with a logo that attracts both copyright and trade mark protection. The logo is the object, while the subject matter for copyright is the original expression (the work) and for trade mark law it is the sign indicating commercial origin. Object is August 2013 ("…until now, the development of international IP protection has been a one-way route -once rights have been inscribed into the text of an IP convention, they basically become sacrosanct for now and the future. Revision conferences (with only a few remarkable exceptions) have regularly served the purpose of further strengthening the position of right holders; hardly ever was an effort undertaken to question or curtail incumbent rules"). G Dinwoodie, 'Trademark and copyright' (n 5 ) 504 also points out the practical relevance of opportunistic litigation; A Quaedvlieg, 'Concurrence and Convergence in Industrial Design: 3-Dimensional Shapes Excluded by Trademark Law' in W Grosheide and J Brinkhof (eds), Articles on Crossing Borders (n 8 ) 23, 25 speaks of an "osmosis between the formerly separated terrains of technical subject-matter, marketing and culture". 10 Some recent literature addressing these is N Wilkof and S Basheer (eds), Overlapping Intellectual Property Rights (OUP 2012); E Derclaye and M Leistner, Intellectual Property Overlaps (Hart Pub 2011); R Tomkowicz, Intellectual Property Overlaps (Routledge 2011).
A. Introduction: the problem also to be distinguished from "product", the item sold as a unit in the marketplace (a single economic object). [11][12] The criterion to determine what constitutes an object should be taken from an economic perspective. An object is what is economically seen as a unit, something which cannot be exploited separately. 13 Accordingly, if a product has a functional aspect protected by patents and also bears a trade mark, it is clear that both the trade mark and the patent can be exploited independently, since they have different objects. Hence, there is no overlap. On the other hand, if a logo is simultaneously protected by trade mark and copyright there is no way in which one can exploit it without having cleared both rights. The object of the IPRs is the same, so an overlap occurs.
These overlaps have the potential to challenge freedom of competition, freedom of expression and the arts, and free movement of goods by curtailing the use of exceptions, affecting the balance achieved within a certain exclusive right. 14 Another matter of concern is "rejuvenation". By using several 11 Expression of F Macrez, 'Cumuls de Droits Intellectuels sur les créations informatiques' in A Cruquenaire and S Dusollier (eds), Le Cumul des Droits Intellectuels (Larcier 2009) 87. Unless otherwise noted, all translations found throughout the text are the author's. 12 In the same vein see A Kur, 'Cumulation of IPRs' (n 2 ) 615. These notions and terminologies are, however, far from established. For instance when addressing the notion of cumul, J-C Galloux, 'Des possibles cumuls de protection par les droits de propriété intellectuelle' in L'entreprise face à la contrefaçon des droits de propriété intellectuelle (Litec 2002) 81, submits that the expression should be reserved for those situations in which "two or more rights, of a different nature, exist together in the same physical object while having partially or totally the same legal subjectmatter" (objet juridique). He nonetheless distinguishes cumul from coexistence on the basis of physical separability (at 82) and concludes that coexistence cases are not problematic. E Derclaye and M Leistner (n 10 ) 3-5 also adopt a slightly different approach. On the different notions see O-A Rognstad, 'The multiplicity of territorial IP rights and its impact on competition' in J Rosén (ed) Individualism and Collectiveness in Intellectual Property Law (EE 2012) 55 fn1 (with further references). 13 This is a similar reasoning to the German limits on fragmentation through licencing according to which a licence is not valid unless it encompasses a unity that makes economic and technical sense. The object of the licence must be capable of being exploited by itself (BGH [1992] GRUR 310 Taschenbuch-Lizenz; T Dreier and G Schulze, UrhG Kommentar (4th edn, C.H. Beck 2013) § 31 rn9). 14 A Kur, 'Exceptions to Protection Where Copyright and Trade Mark Overlap' in J Ginsburg and J Besek (eds), Adjuncts and Alternatives (n 5 ) 594; see also M Senftleben, 'Overprotection and Protection Overlaps in Intellectual Property Law -the Need for Horizontal Fair Use Defences' in A Kur and V Mizaras (eds), The Structure of Intellectual Property Law: Can One Size Fit All? (EE 2011). forms of protection, some of which are very long lasting (copyright's duration in the EU is now 70 years after the death of the author) 15 or even potentially "eternal", like trade marks, a right holder can frustrate the purpose of a limited term of protection 16 in systems such as patents, designs, and, to a lesser extent, copyright. [17][18] The specific overlap problem I've chosen to tackle in this paper relates to ownership. What happens when two (or more) different people own different 15 The term has been harmonized in the EU by the Term Directive in 1993Directive in , amended in 2001Directive in , codified in 2006  Of course this problem must be equated with the scope of protection granted by each of these IP rights, which is not exactly the same. The protection granted by copyright is directed only against copying and limited to a certain expression, whereas the strength of patent protection is far superior. Save for trade marks with a reputation, its protection is limited by the principle of speciality. 18 This is to be distinguished from the situation of "appropriation of the public domain" (works whose copyright has expired) by registering as a trade mark works such as the painting Monalisa (refused in Germany on the ground of lack of distinctive character, see [1998]  A. Introduction: the problem rights whose object is the same? How should we approach a situation where objective cumulation is not mirrored by subjective cumulation? 19 The following considerations assume that there are no express contractual provisions dealing with ownership issues. 20 Why are split ownerships a problem? The phenomenon of overlapping rights with different owners (split ownership) occurs systematically in relation to copyright and neighbouring rights. It is part of a wider aspect of modern copyright known as fragmentation. 21 If A records B singing a song composed by C (actually, music by C and lyrics by D), and a third party wants to explore the recording: (s)he will have to gather licences from all these people, unless A has already done so and his licence allows sub-licensing.
The combined efforts of the copyright legislator and the market forces have generated mechanisms to deal with the fragmentation phenomenon such as collective management organizations, 22 the connected works doctrine, deemed authorship in movies 23 and compulsory licensing. 24 Furthermore, market participants are also cognisant of the necessities generated by fragmentation and act accordingly, mainly through contract. In the case of overlaps involving different IPRs there is no collective management in place 25 and market participants seem to be less aware of the problem. This can lead to a tragedy of the anticommons. As defined by Heller: "In an anticommons (…) multiple owners are each endowed with the right to exclude others from a scarce resource, and no one has an effective privilege of use. When there are too many owners holding rights of exclusion, the resource is prone to under use -a tragedy of the anticommons." 26 One example presented by the Author was found in post-socialist economies. In the transition -"from Marx to markets" -there was a fragmentation of rights in Moscow's storefronts, multiple rights to the same property were distributed amongst several stakeholders. 27 Thus, a person interested in using a shop would need to collect all rights in order to operate. These high transaction costs explained the empty stores in Moscow, an underuse. 28 In a later article, with Rebeca Eisenberg, 29 Heller makes the same analysis regarding biomedical research and upstream patents, preventing downstream innovation.
It can be counter-argued that blocking effects are not a real problem. After all, IPRs are granted to protect the interests of the owner because society believes they merit protection. To borrow the example given by Peter Prescott QC in Griggs v Ross Evans, 30 an artist approaches a bank with a proposal for a new logo. "If the bank started to use the artist's version of the logo after all, without his permission, they would be taking advantage of his skill and labour in coming up with the original design. Copyright law prohibits this. But if the artist were to sell his logo to a rival bank and that bank started to use his logo in connection with its business, that would be a misuse 25 Still, some solutions (in the field of patent law) such as clearinghouses and patent pools have emerged (not without problems of their own). On these see G V Overwalle, 'Individualism, collectivism and openness in patent law: from exclusion to inclusion through licensing' in J Rosén ( of the business goodwill associated with the [sign]. Trademark law prohibits this." 31 These rights are negative rights, rights to control the activity of others 32 and requiring several layers of authorization is one way to regulate potential conflicts and to force understandings. One related example of this regulatory use of negative rights is present in the discussions regarding indigenous heritage protection. 33 A solution found in the trade mark statute of New Zealand of 2002, is to grant the right to control the use of Māori or aboriginal symbols by establishing an absolute ground of refusal if a trade mark's "use or registration would be likely to offend a significant section of the Community, including Māori". 34 Additionally, it can be said, as it is happens with dependent patents, 35 that market forces will lead to an understanding and cross-licensing is likely to occur in case it is of interest for both owners to exploit the same object commercially. 36 However, even then, the problem is not solved at its root, its extension is limited but the potential for conflict is still there. Furthermore, unlike in most cases of patent dependency 37 and other follow-on innovation, there will not always be a mutual interest to exploit the object of the different rights independently. Although the ownership problem of overlaps has affinities with the one of patent thickets, the origins of these different ownerships in overlaps will very often lie in one single set of events. Thus the relation between the different owners plays an essential role in the analysis. It is, nonetheless possible that two different rights overlap in the same object in spite of their holders being independent and unrelated. This will be the case when a software engineer writes code for a certain program without making a noveltydestroying disclosure and, later on, this technical solution is patented by a third party who independently reached that same solution. 38 This is a different situation from the one described supra in the Griggs v Evans hypothetical. 39 It is necessary to distinguish situations of "independent creation", where no copyright violation takes place from the remainder. In the former the existence of copyright is irrelevant as it produces no blocking effect. 40 In an excellent article, Alexander Peukert identifies five subcategories of multiple rights or owners: 41 -"Double invention and parallel trade marks", addressed mainly by rules such as first to file 42 and prior user rights; 43 -"Unilateral combinations/adaptation of protected subject matter", whose solution is mainly to limit exclusivity; 44 -"Group innovation/creativity concerning several rights", where solutions favouring concentration or joint exploitation are mentioned; 45 38 When it comes to patent law it will be hard to make generalisations as much will depend on the drafting of each particular claim. A. Introduction: the problem -"Parallel territorial rights", relating both to territoriality and its exceptions and addressed by doctrines such as exhaustion and by the rules of jurisdiction and conflict of laws; 46 and -"Cumulation of different IPRs" The last one is the subject of this study. 47 According to the same Author: 48 "This situation entails unique difficulties (…) [and] can only be resolved by applying a 'horizontal approach in search of overarching, general principles that form the basis of all IP rights".

Methodology
The international IP system does not provide much guidance on how overlaps should be regulated. 49 Furthermore, the issue of ownership of Intellectual Property in general and copyright in particular is so contentious that it has rarely been touched upon by the numerous multilateral treaties concerning IP. 50 It is a controversial question, whether or not indirect regulation, through a rule of conflicts of law, can be found in art. 5 BC. 51 In any case 3. . The challenges to territoriality are not only caused by the Internet but also by the wider phenomenon of globalisation (G Dinwoodie, 'Trademarks and Territory: Detaching Trademark Law from the Nation-State' (2004) 41 Houston Law Review 886). 47 As J-C Galloux (n 12) 81 notes there are also possibilities for overlaps between IP rights and rights of other nature (such as the conflict of personality rights and copyright or physical and intellectual property). These will not be addressed. I will neither cover the related problem of having besides a substantial number of harmonisation directives. 58 These systems of protection interact with national law mainly on the basis of coexistence, 59 which allow for the so-called vertical overlaps. 60 The problem at hand will be analysed under European law, focusing on the existing corpus of EU primary and secondary legislation and jurisprudence. When the EU body of law provides no guidance or a national example is required, I will turn mainly to three jurisdictions: Germany, France and the UK, without prejudice of analysing solutions found elsewhere. Germany is chosen for it is the paradigm of a monistic 61 droit d'auteur system, France is the typical example of the dualist droit d'auteur regime and the UK is the copyright system's representative.  116), in a monistic system economic and moral rights are seen as "two branches from the same tree". This work will address mainly the interaction of copyright with other IPRs. 62 Due to its tendency to cumulate, copyright has been suggestively called the "promiscuous member of the IP village". 63 Additionally, the rules on ownership of copyright have hardly been touched upon by the EU legislature which renders this problem even more acute.

Sequence
Bearing in mind the controversial and non-harmonised nature of copyrightownership rules and copyright's central role in overlaps it is convenient devote a whole section to the analysis of their specific regime and to the definition of some essential notions. This will also help us understand where the biggest potential for split ownerships lies and to seek inspiration for possible solutions.
Subsequently, I will turn to specific cases of overlaps (II). Five situations have been chosen. Due to the simplicity of the ownership rules, I will start by addressing the case of trademark and designs (A). Since it obeys essentially the same principles, the case of trademarks and copyright follows (B). To come full circle in the field of "product appearance" overlaps, the case of designs and copyright is examined (C). I will then turn to the case of copyright and the database maker's sui generis right (D), to conclude by studying the interface of copyrighted software and patented computer implemented inventions (E). Each of these sections ends with a summary.
From these cases I will draw some conclusions on existing rules and assess the extent of the problem, before proceeding to evaluate possible solutions based on existing law. I will conclude by assessing possible legislative intervention and the form it might take.
Two annexes are found at the end of the document: the first contains a brief analysis of the interface of copyright and designs under Russian law and the second provides the reader with a selection of legislative provisions cited in the text.

4.
62 As until now there is not a unitary copyright in the EU, this constitutes a "mixed overlap" (different rights with different territorial scope); E Derclaye and M Leistner (n 10 ) 32. 63 A Quaedvlieg, 'Overlap/relationships between copyright and other intellectual property rights' in E Derclaye (ed), Research handbook (n 51 ) 480, 483.

I -The legal framework of ownership and overlaps
The ownership of copyright As William Cornish 64 puts it: "Throughout the history of intellectual property there has been a fundamental tension between the creator (inventor, author) -whose activity is the key to entitlement -and the investor/entrepreneur -who needs the right in order to turn the subject-matter to commercial account, potentially for the benefit of both…". In the field of patent law the solution tends to be alike: the invention belongs to the inventor 65 unless the inventive activity takes place in the course of his work. 66 In that case, the invention usually belongs to the employer. 67 The inventive activity might be eligible for additional remuneration, according to national regulations. The detail of these regulations ranges from the minimalist Portuguese solution: a general statement "if the inventive activity is not specially considered in the payment, the inventor has the right to be remunerated according to the importance of the invention" 68 to the very detailed German Act on employer's inventions (Arbeitnehmererfindugsgesetz). 69 When it comes to copyright ownership there is a rather bigger divide. Author's rights vs. copyright Copyright laws follow one of two big systems: author's rights (droit d'auteur), prevailing in the civil law tradition, based on the personal relation between the creator and the work and the Anglo-American copyright system, which takes a more economic, incentive-based, approach. 70 One of the major manifestations of the different philosophical underpinnings of these systems is the issue of ownership of rights, specifically whether companies can be initial owners of copyright. While the droit d'auteur systems (such as France, 71 Germany, 72 and most civil law countries) regard the author as a natural person (a perspective which is also found in some international treaties, like art. 15 ICESCR 73 and arguably the Berne Convention), 74 the copyright systems (notably the US 75 and the UK, 76 by means of the 'work for hire' doctrine) have no issue with copyright being vested in legal persons ab initio and employ the term "author" indiscriminately. 77 There are also countries of a droit d'auteur tradition that allow, in specific situations, for copyright to be vested originally in legal persons. 78 This exception is justified mainly in situations where the dispersion/fragmentation that would otherwise be generated could render the exploitation of a work too impractical. 79 Countries like Portugal 80 or France 81 have provisions regarding collective works according to which the promoter of a collective project, often a legal person, might own the copyright in those creations. 82 Jurisdictions in this tradition have no problem with the transfer of copyright 83 to legal persons by means of a contract. 84 Some other countries, such as Germany or Austria have no exceptions to the creator's principle (Schöpferprinzip). 85 In these countries, copyright can only be vested in natural persons and, accordingly, ownership is reserved to authors. This also implies that no contractual assignment can occur, copyright is non-transferrable, unless by inheritance. 86 However, even in the latter 77 According to J Sterling, World Copyright law (3 rd edn, Sweet and Maxwell 2008) 1209 one has to distinguish between author in the strict sense ("the individual who by creative contribution produces a work") and in the broader sense (the one defined by law). He also believes the BC refers to an individual (at 207 cases there are provisions dealing with the problem of dispersion, such as the ones regulating copyright in films. 87 Special cases of ownership Due to its controversial nature, the EU has had a very modest intervention in matters of copyright ownership. 88 The existing approach is limited to the "technical copyright", in the Software and Database Directives and certain provisions in the Term Directive. 89 Copyright remains to a large extent a national creature and in this respect, though the problems are common, 90 the differences are still marked. Within the EU there are only a few countries -like Ireland, 91 the UK or the Netherlands 92 -where the "work for hire" doctrine assigns the copyright originally to the employer. Nonetheless most Member States have specific provisions to deal with "problematic" cases of entitlement.

I -The legal framework of ownership and overlaps
Employee's creations Work for hire Among the several copyright laws in the EU one can find specific solutions addressing employee's creations and the rights of employers. One approach is the aforementioned work for hire doctrine in the tradition of Anglo-American copyright law. 93 Pursuant to Section 11(2) of the UK CDPA: "Where a literary, dramatic, musical or artistic work or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary". This provision creates a presumption of assignment. Unless there is an agreement to the contrary, the copyright will be vested in the employer, often a company. The usual point of controversy when applying this provision is whether the work was made in the course of employment. 94 The equivalent provisions found in Dutch and Irish law have the same effect. 95 Unlike in the US, 96 in the EU "work for hire" type provisions do . The doctrine is however limited, the work must have been specifically commissioned, there must be a written agreement and the work must fall into one of the eligible categories (A Briges, 'Navigating the interface between utility patents and copyrights' in N Wilkof and S Basheer (eds) (n 10 ) 1, 11); A S Wernick, 'The work for hire and joint work copyright doctrines after CCNV V. REID: "What! You mean I don't own it even though I paid in full for it?" ' (1990) 13 Hamline Law Review 287).
not cover commissioned works. 97 These might, nonetheless, be a fertile ground for implied licences or even ownership in equity. 98 Presumed assignment or licence 99 In the context of labour contract or commissioned works most countries of the civil tradition understand that the author remains the owner of his work. 100 However, for some creations like software, 101 advertising, newspaper articles or photographs 102 there are different solutions in place. For instance French law has a presumption that the commissioned advertising The previous English law covered specific commissioned works like photographs. The current Portuguese law has a specific provision on photographs (art. 165 PTCA) according to which the copyright in that work is the commissioner's. That rule is also found e.g. in Italy (art. 88 ItalCA). 98 Griggs v Evans (n 30 ) [35] ("Now, it is often the case that a copyright work is commissioned by a client: the client pays for the work to be created, but nothing is said about copyright. It is clear that the free-lance artist is the legal owner of the copyright, for section 11 of the Act so provides. But who is the owner in equity?"); Laddie, Prescott and Vitoria, ibid, vol I 973-4 ("Ownership in equity can arise where the circumstances are such that the copyright, although belonging to the author at law, can properly be regarded as being held on trust by him for another person who is entitled to call for an assignment in order to perfect the legal title"). 99 In this section I only address examples of statutory provisions. Implied licences (also in the employment context) and ownership in equity are considered below at III.B.3. 100 According to § 43 UrhG, unless a different result arises from the nature or content of the employer/commissioner relationship with the employee/commissioned, the former will not have any special treatment regarding exploitation rights (but can benefit from an implied licence (cf below n 333 )). In a more restrictive vein cf. L-111-1 and art. 14 PTCA. There are also States, like Greece, which have an express provision establishing a general presumption of transfer of economic rights in the context of employment (limited to the fulfilment of the purpose of the contract) (art. 8 of the Greek Copyright Act). 101 Art. 2(3) of the Computer Programs Directive, for its analysis see II.E. 102 n 97 .
work is licenced for that use 103 and professional journalist assign (by operation of the law) their copyright in newspaper articles. 104 Another example found in some countries -and not only those which have copyright in official documents 105 -is a general presumption of assignment of copyright in favour of the State. 106

Several authors
The area of works in which more than one original contribution is involved is a controversial one, "fraught with problems", 107 and the national solutions vary as does the terminology. 108 It is therefore convenient to present a small definition for each of the following terms -drawn from the comparison of national laws -and to briefly describe their treatment.

Joint Works
Works of joint authorship are those in which more than one person contributes to their final form. 109 Each author's contribution must be original, inseparable and indistinguishable in the final result. 110 Every contributor deemed an author will be entitled to copyright in the joint work; 111 hence b) the permission of all authors is needed for a joint exploitation. 112 Since this unanimity rule is prone to create tensions among the joint authors, there are some solutions in place to overcome the lack of consensus. French law, under the broader notion of collaborative works, states that, in the absence of common agreement, it will be up to courts to settle the dispute. 113 German law provides that a joint author cannot refuse the publication, exploitation or alteration against good faith. 114 Italian and Portuguese laws deem the general provisions on common property applicable, 115 which means that the contribution of each author is presumed equal 116 and the disputes among the parties can be settled by the courts. 117 The Software Directive (art.2(2)) and the Database Directive (art. 4(3)) mention "joint works" but do not define it or extract further consequences. The Term Directive (art. 1(2)), as the Berne Convention (art. 7bis), refers to joint authorship but leaves it likewise undefined.

Connected works
Connected works are works which, although independent, are combined to be exploited in common. 118 Classic examples are choreography and music in ballet, text and graphic arts in illustrated books or the junction of music and text in operas or songs. 119 Some copyright statutes have specific provisions to deal with this situation. For instance the German Copyright Act provides that each author must ask for permission of the other for exploitation when according to good faith that authorization is expectable; 120 the authors remain otherwise free to exploit their work independently. 121 Though similar, the Italian regulation for composite works (opere composte) is very detailed and limited to musicdramatic works, musical compositions with words, choreographic works, and pantomimes. 122 The legislation tries to strike a balance by according the right to economic exploitation to the author of the most relevant work 123 and allocating the profits in the proportion of each author's contribution. 124

Collective works
According to French law, collective works are those created by the initiative of one (legal or natural) person who gathers and manages the contributions of several people. 125 In this case the copyright belongs to the organizer. 126 Common examples are dictionaries, 127 encyclopaedias or newspapers. Italian law has the same solution and mentions these works expressly. 129 According to Alessandro Ferreti, 130 the ownership of copyright is a normative attribution of creativity in the collective work. In fact, the copyright in the collective work is independent of the possible copyright of each contributor in his specific contribution. 131 If the contributions are distinguishable and protected by copyright, in order to exploit the collective work, its creator will still need to clear the rights regarding each contribution. 132 As with the notion of joint works, both the Software Directive (art. 2(1)) and the Database Directive (art. 4(2)) mention the term "collective works" but leave it undefined and so does art. 1(4) of the Term Directive.

Copyright in cinematographic works
The protection of cinematographic works under copyright poses several challenges. These difficulties depart from the qualification: how many works are there in a film and how to look at them? 133 As stated in the "Study on the conditions applicable to contracts relating to Intellectual Property in the European Union": 134 "The ownership of rights on audiovisual works (…) raises combined issues of multiple authorships and of creation under employment and/or commission". However, the criterion to define them is different. A collective work is a work which has more than one contributor and a collection is a work which gathers different elements (protected works or not) and "by reason of the selection and arrangement of its contents, constitutes an intellectual creation", art. 2(5) BC; see also recital 13 of the Term Directive. A murky usage of the terms is often found in literature and statutes (e.g. art. 3 ItalCA employs "collective works" (opere colletive) for what is really a collection). 133 On the topic see P Kamina, Film Copyright in the European Union (CUP 2002).

I -The legal framework of ownership and overlaps
The BC addresses the problem briefly in art. 14bis but the provision is of little practical significance. 135 It is nonetheless worth pointing out the limitation contained in art. 14bis(2)(b), according to which: "in the countries of the Union which, by legislation, include among the owners of copyright in a cinematographic work authors who have brought contributions to the making of the work, such authors, if they have undertaken to bring such contributions, may not, in the absence of any contrary or special stipulation, object to the reproduction, distribution, public performance, communication to the public by wire, broadcasting or any other communication to the public, or to the subtitling or dubbing of texts, of the work". This provision aims at strengthening the position of the film producer and to make the exploitation of a film easier. 136 In the EU there was (and still is) a large diversity of national solutions regarding authorship in cinematographic works. 137 Abandoning more ambitious plans of complete harmonization, 138 the Term Directive in its art. 2(1) limits itself to determine that copyright vests, "by operation of the law, directly and originally in the principal director". 139 Member states remain free to designate other co-authors. 140 Regardless of ownership the Directive (art. 2(2)) determines that the duration of copyright is calculated from the death of the last of four people listed therein.

The case of trade marks & designs
The visual appearance of a certain product can, and often is, simultaneously protected by copyright, design and trade mark rights. 141 It is thus easy to understand why this area is such fertile grounds for overlaps. 142 In this section I will focus on the interaction between designs and trademarks, as they provide an example of two unitary regimes overlapping. 143 The protection under both IPRs arises out of registration. The owner of the IPR is the one in whose name the IPR is registered. In the case of designs there is no prior examination 144 and regarding Community trade marks it is limited to absolute grounds for refusal. 145 In this overlap the main criterion to deal with the conflicts is priority in time. 146 Prior design If someone holds earlier rights constituting a relative ground for refusal of a trade mark 147 (s)he might file an opposition. 148 It should however be noted that the earlier rights that can be invoked in an opposition are limited to II A. registered trade marks, applications for registration, 149 non-registered trade marks or "another sign used in the course of trade of more than mere local significance". This applies if the rights to that sign were (1) acquired prior to the date of application for registration of the Community trade mark, or the date of priority, and (2) that sign confers on its proprietor, according to its applicable law, the right to prohibit the use of a subsequent trade mark. 150 As stated in the OHIM Manual Concerning Opposition: 151 "In order for such signs to come within the ambit of article 8(4) they must have an identifying function, that is, they must primarily serve to identify in trade a business (business identifiers) or a geographical origin (geographical indications). (…) it does not cover other types of IPRs that are not 'signs'". Therefore, a prior design does not constitute a relative ground for refusal. It is, nonetheless, a relative ground for invalidity. 152 The scope of the invoked right 153 must cover the trade mark, i.e., the design owner can only invalidate the trade mark if its use would infringe his design right. 154 Pursuant to art. 53(3) CTMR, a CTM "may not be declared invalid where the proprietor of a right referred to in paragraphs 1 or 2 consents expressly to the registration of the Community trade mark before submission of the application for a declaration of invalidity or the counterclaim." In the words of David Keeling: 155 "[the owner] cannot lead the other party on a merry dance by first agreeing to the registration and then asking for it to be cancelled". However, the text is too restrictive as "express" consent is re-  157 It is submitted that although express consent to the registration is required, there might be an implied licence to use the design in commerce. If the design owner consents to the registration of his design as trademark by a third party, it is most likely that the use is also allowed. Any other solution would be illogical and against good faith. If no invalidity proceedings are started within 5 years the use is tolerated and there will be coexistence, unless the registration was done on bad faith. 158 In cases where such an implied license is not accepted it is also possible to draw on the broader notions of good faith 159 to claim abuse of rights. 160 It would constitute contradictory behaviour for a licensor, despite having only assigned design rights, to enforce his copyright against the licensee; an idea akin to licensee estoppel, the doctrine developed in patent law according to which the licensee can be barred from challenging the validity of the 156 Ibid (Although there is not written requirement there are obvious probatory difficulties). 157 It seems that consent is not exactly synonymous with licence. Consent would be broader and less demanding, licence would mean legally granted authorization. 158 Article 54 CTMR, on acquiescence is silent regarding the rights mentioned in art. 53(2) CTMR (D Keeling (n 155 ) 167 considers it puzzling), but art. 110(1) CTMR deems it applicable. It must further be added that proof of knowledge is required but in our scenario that will usually be the case. 159 For a synthesis departing from answers to 30 specific cases see S Whittaker and R Zimmerman, 'Coming to terms with good faith' in S Whittaker and R Zimmerman (eds) Good faith in European contract law (CUP 2000) 654, 697 (after reviewing most legislation's existing notion of abuse, the Author's state that although the English legal tradition is very resistant to the notion of abuse of rights, its reliance on equity, spite "domesticated long ago" still plays a role in the correction of the "harshness of the law" ("…design may arguably protect one appearance regardless of the product embodying it. This goes far beyond any "speciallity of goods" principle").

A. The case of trade marks & designs
vance. 168 Thus, the question will be only similarity of signs; similarity of goods is irrelevant.
The tests differ: whilst under art. 25(1)(b) CDR the perspective is the overall impression of the design as perceived by the informed user, the approach under 25(1)(e) is one of trade mark infringement, using the perspective of the relevant consumer. 169 There is no equivalent provision to article 53(3) CTMR which paradoxically might lead to wider solutions regarding implied licence and consent.
Additionally, if the owner of the trade mark also qualifies as the designer, (s)he has the further possibility of either claiming ownership of the registered design in national courts 170 or, on the basis of a national court ruling, invalidate the design. 171 Summary: The conflicts between community trade marks and community designs are dealt with by the principle of priority in time. If there is a prior design, its owner cannot oppose the registration of the trademark but can file an invalidity action, pursuant to art. 53(2) CTMR. In case there is a prior trade mark, its owner can file an invalidity claim based both on article 25(1)(b) and 25 (1) (e) CDR. Pursuant to arts. 110 and 54 CTMR acquiescence might occur in case no action is taken against the trade mark for five consecutive years and the registration of the second trade mark was not done in bad faith. The text of article 53(3) CTMR seems to constrain the use of implied licences; however it is submitted that express consent is only required for registration, whereas it might be implied for use. There is no equivalent provision in the CDR, which deems it more flexible regarding implied licences.

The case of trade marks & copyright
Reflecting their disparate objectives the configuration of copyright and trade mark laws is significantly different. 172 In many ways trade mark protection is dynamic (the sign as understood at present), 173 whereas copyright protection is static (the work as expressed/fixated at the time of creation). Trade mark protection aims at protecting consumers against confusion in the marketplace 174 and relies on the principle of specialty, 175 so its blocking effect is limited. On the other hand copyright protection does not depend on commercial use and is not limited to a certain field of activity, whilst its infringement, in contrast with the objective protection of trade marks, requires proof of copying. 176 In the EU trade mark rights are acquired through registration 177 whereas copyright comes into existence with the act of cre-

B.
172 G Dinwoodie, 'Trademark and copyright' (n 5 ) 517; C Mende and B Isaac, 'When copyright and trademark rights overlap' in N Wilkof and S Basheer (eds) (n 10 ) 137, 144; A Kur, 'Exceptions to Protection' (n 14 ) 597 fn8. 173 It is very much dependant on the meaning consumers attribute to a certain sign throughout time. This is reflected in notions such as acquired distinctiveness or genericism. 174 A Kur and T Dreier (n 58) 157 ff. 175 Art. 9 CTMR, with the exception for well-known trademarks. On the topic see I S Fhima, Trade mark dilution in Europe and the United States (OUP 2011). 176 n 40 . 177 Without prejudice to the unregistered trademark protection that is granted in some countries, like Germany ( § 4(2) of the MarkenGesetz) on the basis of use. ation 178 or fixation, 179 without any additional formalities. 180 In spite of these remarkable differences, there is a big potential for content overlap. 181 In fact, French courts have gone as far as protecting single words under copyright. 182 Due to the respective operative events (creation or fixation vs. registration) copyright in a very specific work will always be prior in time over trade mark protection. However, the work might be based on a previous trademark, a very common situation when it comes to changing the graphic presentation of a mark (e.g. Google's Doodles), using it in advertisement (like Absolut vodka does) or rebranding. That situation does not constitute a real overlap as the prior trademark will not cover exactly the same object. 183 Nonetheless the trademark right is prior and its scope does cover certain uses of the secondly created work. Within its protective scope, the trade mark can prevent the exploitation of such work. 184 What was said regarding the trade mark/design overlap applies mutatis mutandis to the overlap with copyright. 185 If the owners are different, then the prior right will prevail. 186 In this case, further difficulties accrue as there is no mandatory copyright registration and the copyrightability of specific 178 L-111-1; E Ulmer (n61 ) 129 (the UrhG does not expressly state it). 179 Section 3(2) and 3(3) of the CDPA; W Cornish, D Llewlyn and T Aplin, (n 32 ) 463. This is yet another difference between copyright and droit d'auteur systems (S V Lewinski (n 70 ) 44). See also Y Gendreau 'Le critère de fixation en droit d'auteur' 159 (1994) RIDA 111 (providing an analysis of the two systems in this regard and concluding that the requirement of fixation often leads to contradictory results). It should however be noted that even in droit d'auteur systems some works, like choreography require fixation in order to enjoy protection. signs (like titles, 187 characters, 188 shapes or slogans, 189 and the applied arts in general) 190 is of a dubious nature, varying according to jurisdiction. 191 Assessing if there is copyright and who is its owner will pose additional challenges to someone who wants to use a work as a trade mark.
In the leading case Griggs v Evans,192 Griggs had commissioned an advertising agency to produce a new logo by combining two previously existing ones. This new logo was designed by Evans, a free-lancer, 193 who claimed ownership of the copyright in the logo. Later on Evans transferred his copyright to a competitor of Griggs,Raben. 194  for copyright protection of applied arts ( § 2(1)(4) UrhG). These were distinguished from the fine arts by their intended use (Gebrauchszweck) and their form of production (T Dreier and G Schulze (n 13 ) § 2 rn158). Regarding applied arts there was a stricter requirement of originality (see notably BGH [1995] GRUR 581 Silberdiestel). Hence, it was likely that, unless they were classified as pure art, few logos or slogans would enjoy copyright protection. (E Derclaye and M Leistner (n 10 ) 240). Of course that, as stated in the Silberdiestel decision, the higher requirement of originality was accompanied by a lower threshold in the field of unfair competition: competitive individuality (wettbewerbliche Eigenart) which in some cases led to the same practical result in protecting against imitation). However, on 13 November 2013 the BGH (I ZR 143/12 -Geburtstagzug) abandoned this double standard (Stufentheorie). It justified that change not on the basis of EU copyright law but due to 2004 reform of German design law. Defending the double standard in the context of the design/copyright overlap see E Derclaye and M Leistner (n 10 ) 236. On the debate on originality in the EU see n 225 . 192 n 30 . 193 Ibid [11]. Thus the work for hire provision was not applicable. 194 At [12] it is said "While it might not be strictly accurate to say they are a competitor of Griggs, it is clear that they must be regarded as an enemy". and some litigation in Australia, Griggs started an action seeking an order that the copyright would be formally assigned to him. 195 Applying the copyright statute the Court concluded that Griggs was indeed the owner of copyright, but immediately added: 196 "However, it is well established that this refers to the legal title to the copyright. But it is possible for a person to own the legal title to property, not for his own benefit, but for the benefit of another person. That other person is said to be the owner in equity. It is well established that the section 11 of the Copyright Act does not purport to legislate for equitable ownership, which is left to a wellestablished body of rules that have been built up by the courts over many generations. For example, suppose a free-lance designer orally agrees with a company that he shall create a website for use in its business, for payment, and on terms that the copyright shall belong to the company. Because the designer is not an employee of the company the legal title to the copyright belongs to him, because the Copyright Act says so; but the equitable title belongs to the company. This means that the designer can be called upon to assign the legal title to the copyright to the company; and, if he refuses, the law will compel him to do so" And the Court proceeded to consider the law on implied terms of contract, stating: 197 "It seems to me that when a free-lance designer is commissioned to create a logo for a client, the designer will have an uphill task if he wishes to contend that he is free to assign the copyright to a competitor. This is because, in order to give business efficacy to the contract, it will rarely be enough to imply a term that the client shall enjoy a mere licence to use the logo, and nothing more. In most cases it will be obvious, it will "go without saying", that the client will need further rights. He will surely need some right to prevent others from reproducing the logo".
After analysing the specific circumstances in which the logo had been created Peter Prescott QC gave judgement for Griggs, granting him equitable ownership of the copyright 198 and confessed to be "glad to do so. The proposition that the copyright in this important logo belongs to Raben is one that 195 Ibid [14]. 196  [he] find [s] astonishing". 199 This was deemed to be a "common sense approach". 200 This line of argumentation was recently tested and refused before the Cancellation Division of OHIM in "twin decisions" appreciating the same set of facts in relation to two trade mark registrations. 201 In 1998, Deepend Fresh Recovery, a London based design company, was commissioned to create a brand for Fresh Trading Limited's smoothie products. Mr Streek, an employer of Deepend, came up with this logo: whose copyright, by s.11 CDPA, was owned by Deepend. 202 No written assignment to Fresh Trading had been produced. Nevertheless, in 2001 Fresh Trading registered the work as a trade mark and, in 2009, Deepend filed a request for invalidity on the grounds of 53(2)(c) CTMR.
In its defence Fresh Trading argued on the basis of equitable ownership, acquiescence and estoppel. In just two paragraphs the Cancellation division dismissed the arguments and declared the invalidity of the trade mark. The claim to equitable ownership was rejected on the basis of insufficient evi- dence 203 and the same reason was presented to reject estoppel. 204 It was stated: "according to article 54, acquiescence is not possible in relation to the rights covered by article 53(2) CTMR". 205 This seems wrong as art. 110 CTMR deems acquiescence applicable to earlier national rights. 206 As the OHIM considers national law as an issue of fact 207 it is unclear how willing it will be to accept argumentations justified both on the basis of implied licence or abuse of rights when the national law is proven beyond reasonable doubt.

Summary:
In case a real overlap occurs, copyright is always prior in time due to its operative fact: protection arises out of creation or fixation. There are, nonetheless, relevant cases of prior trade mark conflicting with a later work. Priority in time is the criterion to solve the conflict. The OHIM is apparently hostile to argumentation relying on ownership in equity or estoppel.

The case of registered designs & copyright
The interaction of designs and copyright is one of the most controversial and explored overlaps, a truly vexed question. Nevertheless, in the field of designs, "issues of cumulation or convergence of rights are with us as never before". 208 Article 2(7) BC states: "it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected." The extent of this overlap is mainly determined by copyright legislation. In the EU the legislator has stated in article 17 of the Design Directive (and similarly in art. 96(2) CDR) that: C. "A design protected by a design right registered in or in respect of a Member State in accordance with this Directive shall also be eligible for protection under the law of copyright of that State as from the date on which the design was created or fixed in any form. The extent to which, and the conditions under which, such a protection is conferred, including the level of originality required, shall be determined by each Member State." Up until now, the national attitudes in this regard have differed to a considerable extent. The existing approaches are usually divided in three categories: -No cumulation, relying on a requirement of separability, according to which only the separate ornamental elements can be protected by copyright but not a piece that is simultaneously aestethic and functional. This was the old Italian approach of scindibilitá 209 and is the current position in the US. 210 -Partial cumulation, requiring additional "filtering requirements" such as an higher threshold of originality and/or artistic quality, 211 registration or a maximum number of reproductions, 212 for the design to be protected The extension to which this decision imposes a European "unity of the art" and requires Member-States to adopt the full cumulation approach is still very uncertain. 223 In the past it was believed that even though the principle of cumulation had been adopted, Member-States could still decide on the conditions of protection for applied arts in their respective copyright laws. 224 As the CJEU has undertaken an ongoing interpretation of the notion of originality on the basis of Directive 2001/29, most notably in Infopaq, these debates remain linked and thus an area of incognita. 225 However, neither the copyright directives, nor the design regulation (or directive) or CJEU's case-law provide much guidance on how to solve the problem at hand. Under the CDR the creator of the design is designated 'designer', 226 and has the right to be mentioned in the register, regardless of ownership. 227 Pursuant to art. 14 CDR, the right to the design shall be vested in the creator (or joint creators) of the design, unless the "design is developed by an employee in the execution of his duties or following the instructions given by his employer" (art. 14(3) CDR). If someone other than the owner has registered the design, the latter will have the option to either invalidate the design 228 or to claim it as his own. 229 In this last case, third parties exploiting the design in good faith (prior to the ownership challenge) can continue their exploitation on the basis of a non-exclusive statutory licence. 230 In FEIA 231 the CJEU drew on the chosen terms employer and employee, 232 to hold that article 14(3) CDR was to be interpreted restrictively and did not cover designs produced under commission. 233 The Court emphasised, nevertheless, that a design can be transferred by contractual assignment, 234 subject to the national applicable law. 235 It is not clear whether the CJEU considers implied terms of assignment admissible. It is submitted that the decision refers only to the notion of employee and Courts remain free, per art. 14(3) in fine, to consider implied licences or transfer. Furthermore, Member-States retain the possibility to establish a legal presumption of assignment.
At first sight this decision might seem to promote convergence with copyright ownership. And it is so, if we consider the droit d'auteur paradigm: a restrictive interpretation of article 14(3) CDR will tend to concentrate the copyright and the design right in the same person, the creator. However, it 226 D Stone, European Union Design Law (OUP 2012) 90 "…the designer is the person who designs the design". 227 Art. 18 CDR. This is a limited (the provision only refers to the register) moral right of paternity (D Musker in C Gielen and V Bombhard (n 155 ) 387). 228 Art. 25 (1) is also possible that by application of certain provisions of copyright law we will end up with a situation where the copyright is owned by the commissioner or organizer of a collaborative work and the design right belongs to the designer. In any case, if there is overlap, split ownership still occurs in the context of an employment situation in countries where there is no work for hire doctrine.
In these situations it could be argued that the unitary right provisions prevail (as they are EU law) and the acquisition of copyright is meaningless. This does not seem to be a sound reasoning because the hierarchical principle has no application in this context. As seen the rule is coexistence. 236 Thus, in case of split ownership of copyright and design the rule will still be priority in time. The owner of prior copyright can invalidate the design in proceedings before the OHIM on that ground. 237 Like the owner of a prior trade mark, 238 the owner of a prior design can prevent the exploitation of a work inasmuch it falls within its scope.
Most of the times the split ownership will happen after creation, resulting from the transfer of just one of the IPRs.
If a designer has granted her design rights but not the copyright she surely cannot claim the design as her own, but can she still make use of her copyright? It seems abusive and against good faith. In those cases it might be argued that the transfer in title of design rights by the designer implies at least a copyright licence or even that it is (or should be) impossible to transfer the rights separately. This last solution is found in countries following the theory of the unity of the art, either developed by jurisprudence 239 or in specific legislative provisions. 240 The implied licence solution is probably the "lowest common denominator" among the European jurisdictions for this scenario.
Another rule found e.g. in France 241 or in the Netherlands 242 is the presumption of ownership of copyright in favour of the (legal or natural) person that exploits the work. 243 This is a practical and important way to overcome the burdensome proof of ownership in infringement actions. The rule can have the equivalent effect to granting ownership, 244 at least against third parties. It is nonetheless a rebuttable presumption and will not be of great use in situations of conflict between the different IPRs' owners.

Summary:
Concerning the cumulation of design and copyright there are still very different solutions among Member-States, although the CJEU might be developing a "european unity of the art" on the basis of its interpretation of EU copyright. Art 14 CDR establishes a work for hire doctrine regarding the design right which, according to the CJEU, is to be interpreted restrictively. That will tend to concentrate initial ownership. Thus split ownership will mainly be the result of contractual arrangements. The criterion for conflicts is still priority in time. However, at least in the case of contractual arrangements referring to just one of the cumulated right there might be an implied licence regarding the other.

The case of databases: sui generis right & copyright
In 1996, a Directive on the legal protection of databases was adopted. According to that Directive, a database can be protected by two rights: copyright, if the database constitutes the author's own intellectual creation 245 and a sui generis right, if substantial investment was put into its creation. 246 Though the object of protection differs -copyright focuses on the original selection or arrangement whereas the sui generis right protects the invest-

D.
243 This is to be distinguished from the presumption of authorship found in art. 15 BC stemming from the display of a name in the work. In this case the significant event is the exploitation and not the display of a name. 244 J Seignette 'Authorship' (n 92 ) 135("…creating a de facto allocation rule for copyright in commissioned works…"). 245 Art. 3 DatD. 246 Art. 7 DatD. ment in the gathering of data 247 and its presentation 248 -the potential for overlaps is almost unlimited. 249 Pursuant to article 4, copyright will be vested in the creator of that database, a natural person unless the national law of the Member State allows for legal persons to acquire copyright. 250 The rule has no "hard" content, it only suggests a solution but Member-States retain their freedom to regulate the matter. 251 If the work has been created by a group of people then these will be joint owners. 252 In case the national legislation has specific provisions to deal with collective works, the economic rights shall be owned by the person holding the copyright. 253 Unlike the Computer Programs Directive's art. 2(3) and the Initial Proposal's art. 3(4), there is no provision dealing with databases created by employees. 254 The harmonizing effect of these rules is therefore minimal. 255 According to article 7 and Recital 41, the maker of the database, the person (quite often a company) who takes the initiative and the risk of investing is the owner of the sui generis right. 256 247 But not in the creation of data as results from the CJEU decision in Case C-203/02 BHB  Art. 4(3) DatD. B Hugenholtz ibid 320 ("The wording of art. 4(1) suggest that a group of natural persons may also qualify as the author, but as para. 3 clarifies, what is meant here is joint authorship."). 253 Art. 4(2) DatD. 254 B Hugenholtz in T Dreier and B Hugenholtz (eds) (n 136) 320. 255 Nevertheless it had some effects. V.g. Belgium has a "work for hire" provision for databases (art. 20ter of the Belgian copyright act). Similar provision is art. 12bis ItalCA (creating a presumption of transfer for databases). 256 Laddie, Prescott and Vitoria (n 97 ) 1287 ("It should be noted that this need not be the person who actually does the work. Indeed it often will not be.").
Although this framework regarding the ownership of both rights is fertile ground for different ownerships of different rights in the same database, it seems that the legislator has not predicted the problem. 257 Thus situation poses difficulties not only for the owners of the rights who want to exploit it but also for users, who might only have obtained a licence from one of the two relevant rightholders. 258 Even though that was not the main object of the dispute (nor the preliminary ruling), in Directmedia 259 there was a copyright owner in an anthology of German poetry, Mr. Knoop, working for the University in Freiburg, and the database right, owned by the University, who had spent €34.900 throughout the two and half years it took to compile the database. 260 A third party (Directmedia) was sued on the basis of infringement of both copyright and the sui generis right. As the applicable law to determine copyright ownership was German law, the owners were different.
In this case, there is no prevalence in time as both IPRs are born simultaneously in the sphere of the two subjects. 261 There seems to be no hierarchy or precedence either. According to the law as it is, the investor and the copyright owner would need to get permission from each other in case they want to exploit the database. 262 Most of the times this will mean that the owner of the sui generis right will need to bargain a license anew.
Normally, the copyright owner is either an employee or a commissioned person; thus it can be argued that the original creation has already been remunerated. Such payment was part of the substantial investment; hence (at 257 A Quaedvlieg, 'Overlap/relationships' (n 63 ) 516. 258 Laddie, Prescott and Vitoria (n 97 ) 1287 ("Users of a database must take great care to consider (…) whether a licence would be required from both owners").

C-304/07 Directmedia Publishing GmbH v Albert-Ludwigs-Universität Freiburg
[2008] ECR I-7565. 260 Ibid paras 9-15. 261 F Macrez (n 11 ) 103 (stating without elaborating on the consequences : "in case of conflict, the balance should tilt in favour of copyright"). There seems to be no justification for such solution. Lucas and Lucas (n 71 ) 953 state twice that "It is enough to apply in a distributive fashion the rules which do not have the same scope of application". This enigmatic sentence can be seen as a timid suggestion of prevalence. 262 "This may enable either party to prevent the other from making commercial use of the database, unless either or both can rely on lawful user rights to disable the other's controls or on some other legal principle" (S least) a license is implied. 263 This argumentation will face some obstacles, such as formalities, 264 burden of proof, specific legal provision on the contrary 265 and a general attitude favor auctoris, 266 regarding the author as the weakest party 267 and ownership rules as imperative. 268 In the judgement Ray v Classic FM, 269 Mr. Robin Ray, "nationally famous for his encyclopaedic knowledge of classical music", 270 had concluded a consultancy agreement with Classic fm to advise on the programming and repertoire of the broadcaster. This agreement was silent on the subject of 263 Making that argument see A Bertrand, Droit d'auteur (3 rd edn, Dalloz 2010) 185.
Against it see Lucas and Lucas (n 71 ) 180 ff. This has been followed in some decisions (Y Gaubiac (n 213 ) 14 ff). In Germany the BGH in Wetterführungspläne [2001] GRUR 155, seems to have followed that logic by holding that "when a computer program is developed in the framework of a worker's duties he shall not be entitled to additional remuneration if that is patented". As seen, under UK law, the extent of this problem seems to be minimal. Either by operation of the work for hire doctrine or due to implied terms, including equitable ownership of copyright or an implied licence, the database maker will not have problems. A similar effect can be achieved in Germany through an implied licence (see below A counter-argument is that the same effect (protecting the author's interest) can be achieved (maybe in an even more efficient way) by guaranteeing the author equitable remuneration and the maintenance of his moral rights (cf. 165(3) PTCA). This represents a certain convergence with the employee's invention logic. Pointing out, in the wider context of imperative contractual laws protecting authors, that often these authors do not "dare to insist on the application of such provisions" see S V Lewinski, 'Collectivism and its role in the frame of individual contracts' in in J Rosén (ed) (n ) 117,118 stating the same for the model adopted by German Law (at 120 Intellectual Property. 271 Ray developed a star system to rate the items in the playlist which was to be managed by means of a computer program (Selector) aimed at optimizing the selection of music played. 272 Throughout the duration of his contract Mr. Ray individually classified 50,000 items of music according to his star system. 273 The system worked so well that Classic fm wanted to licence the database. 274 Mr. Ray considered that constituted infringement of his copyright -not on the database but on documents contained in it -and sued Classic fm. After having dismissed the Defendant's claim to ownership under s.11(2) the Court proceeded to analyse the issue of ownership in equity beginning with a thorough review of the law. In face of the facts Justice Ligthman found implied a licence "for the purpose of enabling the Defendant to carry on its business" 275 and thus upheld the claim for infringement. The issue of estoppel was dismissed as unfounded. 276 Summary: The sui generis right protecting investment and copyright can and very often will cumulate in a certain database. When that happens, although some authors suggest prevalence of the copyright owner, it seems that there is a blocking situation as there is no priority in time (both rights arise simultaneously). In case the copyright owner is commissioned or an employee there might be an implied licence. However such an argumentation will face obstacles due to laws driven by the protection of the author.

The case of software and computer implemented inventions
The protection of software was and still is a very controversial issue. 277 After much debate, at the European level, it was decided to bring it under copyright 278 by means of a Directive, 279 the first on copyright matters. This solution was later incorporated in the TRIPS Agreements, art. 10 (1), which states: computer programs whether in source or object code, shall be protected as literary works under the Berne Convention.
At the same time Patent Offices around the world issue the so-called software patents or, in EPO's terminology, "computer implemented inventions". 280 To be accurate, one has to distinguish between the objects of protection: software, i.e. only source and object code, protected under the copyright for software, 281 and computer implemented inventions, which differ from software. 282 These patents do not directly protect software or the al- gorithms (computer programs as such), 283 they aim at the technical function(s) performed by the program. 284 The object of protections is clearly different. As stated by the CJEU in SAS Institute: 285 "neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression of that program and, as such, are not protected by copyright in computer programs". There is no coincidence in the criteria for infringement, and there are no rules dealing with the conflict neither in copyright nor in patent laws.
If the scope of the patented computer implemented invention covers the one present in the software but was achieved by independent conception, there was no copyright infringement, for this requires copying. 286 Even when copyright predates patent protection, 287 its protection is not dependent on an act of publicity. Therefore the patent requirement of novelty 288 is not necessarily affected. If a person who has independently reached the same technical solution succeeds in obtaining a patent for a computer implemented invention which also covers the solution found in the pre-written software there is not much left for the copyright owner. 289 Depending on as such" and "further technical effect" cf Opinion of the Enlarged Board of Appeal of 12 May 2010 (G3/08) (finding the referral not admissible but expending relevant considerations on the topic). 284 On the requirements and particularities of Computer Implemented Inventions see C Schwarz and S Kruspig, Computerimplementierte Erfindungen -Patentschutz von Software? (Carl Heymanns 2011). 285 Case C-406/10 SAS Institute Inc. v World Programming Ltd (CJEU 2 May 2012) para 46. 286 Even an independent invention might have involved copyright infringement in a certain intermediate step of its conception, like in certain cases of reverse engineering that fall out of the restrictive conditions of art. 6 CPD. In this situation the copyright protected code was just a starting point for the inventor, the performance of the invention, i.e. the exploitation of the patent, involves no copyright infringement, so there is no dependency. 287 That will always be the situation in case of a real overlap (n 12). 288 Art. 54 EPC contains what is called "an absolute requirement of novelty", any enabling disclosure to the public is enough to deny patentability (A Kur and T Dreier (n 58 ) 111). 289 F Macrez (n 11 ) 101 ("…the legal protection through copyright will not have any utility. If not in principle at least in fact, copyright is hierarchically inferior to a patent.").
the jurisdiction, (s)he might benefit from prior user rights. 290 This constitutes nothing but a defence, a limitation to the effects of the patent: the patent owner can forbid everyone but the prior user from using his invention. A different situation arises when a computer implemented invention can be induced from certain copyright protected software and this involves no further inventive activity. In that case the patented solution is not autonomous. 291 The creative process is simultaneously inventive activity. The creator, owner of the prior copyright, is also the inventor, entitled to a patent himself.
When the person applying for the patent 292 is not entitled to it, its legitimate owner can claim it in national courts. 293 Determining who is an inventor constitutes a reasoning akin to determining who is/are the author(s). 294 The rules according to which the patent owner is determined have not been harmonized but they converge to a significant extent. 295 Pursuant to art. 2(3) CPD: "Where a computer program is created by an employee in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all economic rights in the program so created, unless otherwise provided by contract". 290 See n 43 . 291 This is not synonymous with dependency as in "dependent patents". As copyright only protects a certain expression (art. 9(2) TRIPS) it will be relatively easy to practice the invention (defined by its function) with a different code. Even if a very similar code is written independently there will be no infringement. Hence, due to the broader scope of patent protection and the subjective requirement for copyright infringement the situation of patents dependent on copyright mentioned by C Le This provision only requires a presumption of an exclusive licence regarding economic rights. 296 Although a broader solution covering commissioned works was to be found in the Initial proposal, it was eschewed to the benefit of freelance programmers. 297 Nonetheless some countries, like Germany, 298 when transposing the Directive extended the application of this solution to commissioned works. 299 Curiously, the UK did not, 300 but the implied terms solution has been used. 301 Summary: Although copyright and patents often overlap in computer programs, split ownership of those rights will not generate particular problems. In case copyright predates patent protection, a patent can still be obtained if there was no enabling disclosure and the other requirements of patentability are met. If the patentee copied the invention from the creation, he cannot be deemed the inventor and, simultaneously is infringing copyright. If the patentee has achieved the same technical solution independently (most probably with a different code) he has not infringed copyright and will be able to patent his invention. The prior copyright owner can have prior rights inasmuch the applicable law allows them.

-Possible solutions to the problem
The extent of the problem The previous analysis clearly shows that the extent of the problem is smaller than what might initially seem. Not all cases of different ownerships in overlaps generate an unjustified blocking effect or remain unregulated. As seen, if the specific overlap regards cumulation with copyright, if there is an independent creation, there is no infringement. In cases of registered IPRs priority in time is the criterion: if there is a right prior in time the registration is invalid. As copyright arises out of creation or fixation and trade mark or designs out of registration, copyright will trump registration. The requirements of novelty and individual character in design law lead to a similar result. 302 The blocking effect arising out of split ownerships depends on the extent a certain activity constitutes infringement. One will have to determine if the exploitation of the object falls within the scope of the IPR. This operation involves not only the infringement analysis but also an assessment of the interactions with freedom of expression and artistic creation, which might constitute important exceptions to infringement. 303 Another clear principle is: one cannot legitimately register an achievement of someone else. 304 In those cases, usually the real owner will be able to claim the respective IPRs as its own in national courts or revoke it. These rules are logically conceived but need to be tempered with other considerations, otherwise they will fail to solve the blocking effect arising out of split ownerships, leading not only to unfair results but to granting rights without any real utility, frustrating the very justification for such concessions.
Implied licences and good faith/estoppel are two recurring approaches to our problems in the previously analysed cases. Those, among other possible solutions, will be considered below.

A general solution?
As seen, in the EU overlap is the norm. One notable example of limiting copyright's action in light of other interests 305 is found in the CJEU decision Dior v Evora. 306 The Court held in a laconic statement 307 that a trade mark holder who also owned copyright in the bottles and packaging of his goods (Dior) could not enforce its copyright against a retailer where trade mark exhaustion had already operated. The reasoning, albeit inspiring, 308 has no direct utility to our problem, since exhaustion can only operate in regard to the same "origin" ("the proprietor or with his consent") 309 and our scenario is characterised by different ownership. Thus, unless some other solution operates, the actions by a certain IP right owner will violate the right of the other.
Avoiding the problem Avoiding overlaps?
One obvious solution to the problems created would be to avoid overlaps. Even though there are "channelling" provisions, 310 rules that reduce the extent of the overlap such as a demanding copyright standard of originali-

B.
1. a) 305 A Quaedvlieg 'Concurrence' (n 9 ) 28-29, presents the case as an example of negative convergence, a limitation of both right due to the "overriding interest of the free movement of goods within the internal market and the purpose of the exhaustion rule". 306 C-337/95 Parfums Christian Dior SA [1997] ECR I-06013. 307 Ibid para 58 "…there being no need to consider the question whether copyright and trade mark rights may be relied on simultaneously in respect of the same productit is sufficient to hold that (…) the protection conferred by copyright as regards the reproduction of protected works in a reseller's advertising may not, in any event, be broader than what is conferred on a trade mark owner in the same circumstances". 308 Proposing legislative changes to copyright in the aftermath of the case see A  in J Drexl, R Hilty, L Boy and C Godt (eds) (n 16 ) 139, 149 ("…separating between the different regimes is not an aim in itself, in the sense that the system of intellectual property law must be kept in an 'orderly' state. Instead, [the exclusion] draws its justification from the balance that must be achieved between the protection of creations, innovations and the informational value of distinctive signs, on the one hand, and free competition on the other."). See also J-C Galloux (n ) 89 (overlaps are an unavoidable consequence of the diversity of IPRs); G Dinwoodie 'Trademark and copyright' (n 5 ) 521 "such grand plans for a unified system of intellectual property are (like a general rule governing cumulation) too grand, and perhaps too fundamental, a response to the problem". 314 A Quaedvlieg, 'Concurrence' (n 9 ) 26 ("Concurrent protection might in fact prove to be a sophisticated legal answer to the insatiable and multiform needs of an information and marketing economy"). In the same vein see also T Cook, 'How IPrs, like Nature, Abhor a Vacuum, and What Can Happen When They Fill it -Lacunae and Overlaps in Intellectual Property' (2012) 17 JIPR 296. 315 As mentioned above (n 249 ) the database maker right was to have a subsidiary nature, which would have avoided the problem of ownership altogether. G Dinwoodie 'Trademark and copyright' (n 5 ) 519 ("We should (…) be hesitant to impose an overarching "cumulation principle""); A Kur 'Exceptions' (n 14 ) 597 fn9 mentions critically the Danish solution according to which there could be no copyright in an object created with the intention to be used as a trademark.

Avoiding differences in ownership?
Another way of looking at the issue is from the ownership perspective. Developing parallel rules of ownership in the cases of overlaps would also solve the problem. There are different rules regarding copyright ownership throughout the EU and these remain deeply entrenched in national traditions. It seems unnecessary (and probably unfeasible) to undertake such a deep harmonization effort. 316 A less drastic solution like the one found in the computer program directive has the potential to achieve the same goals. Furthermore, even in countries, like the UK, with work-for-hire provisions, the problems are still occurring. The equitable ownership of copyright is a solution very specific to common law 317 and in clear contradiction both with the formal requirements -and, in monistic systems, the possibility -of assignment. An interesting solution found in the Wittem's group proposal for a European Copyright Code 318 consists in a work for hire provision (limited to economic rights) 319 combined with an implied licence approach to commissioned works. 320

Prevalence
To solve some problems posed by overlaps some commentators submit the prevalence of the regime with the most significant relation with the case. 321 Finding which regime that is -in a private-international law like reasoning -requires systematic and teleological considerations, considering b) 2. 316 Lucas and Lucas (n 71 ) seem to suggest that harmonization might follow from the notion of originality adopted in Infopaq. the essential function of each IPR. Even if such approach is adopted, it does not solve all cases as two or more rights might be on equal proximity to the case. Antoon Quaedvlieg calls this "cases of perfect concurrence" and though he finds them rare he also admits "in those cases only hierarchy can solve the problem". 322 If this might be an efficient solution when dealing with questions of infringement and exceptions (the use of several rights by the same owner in a combined way to strengthen her position); in our case, allowing the prevalence of one right would mean the total irrelevance of the other. It would be meaningless to hold copyright if the design right belonging to someone else would prevail. 323 It is conceivable that this prevalence would only turn one right from property into liability, 324 the owner of the "losing" right would only be entitled to remuneration but would not be able to exclude the owner of the "winning" right. This is in line with the solution found in Italy for connected works. 325 Unless the hierarchy, or at least some criteria for the qualification are expressly stated (or developed by jurisprudence) the outcome is excessive legal uncertainty. 326

Implied licence
In the context of a contract, it is possible to extract consequences even though they are not expressly mentioned. Under English law, these are called implied terms, which can be implied by law, in fact and on the basis of custom or trade usage. 327 For terms to be implied, as summarized by the Privy Council in BP refinery (Westernport) Pty LTd v Shire of Hastings, 328 they must: "(a) be reasonable and equitable; (b) be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (c) be so obvious that 'it goes without saying'; (d) be capable of clear expression; (e) not contradict any express term of the contract.". 329 This is somehow a functional equivalent to a general criterion of commercial good faith. 330 In the IP field the implied terms can be either an assignment or a licence. Due to the reluctance of most author's rights systems to deprive authors from their copyright and the usual formal requirements for assignment, the notion that is more apt to be considered is the one of implied licence.
In certain situations even though no express authorization is granted, it results from the circumstances that specific acts, which would otherwise be infringement, were authorized. For instance, if a reader writes to a newspaper, it can be presumed that the publication is authorized. 331 Along the same lines, if an investor pays the employee to create a database or the company commissions a designer to produce a logo, it can be said that a licence results from the circumstances. 332 Under German Law, according to the "purpose of transfer" doctrine (Zweckübertragunsgslehre) 333 a licence might be implied if it results from the objectives of a certain contract. This rule has a big practical significance and often leads to results equivalent to the work for hire doctrine. 334 The thesis of implied licences in the context of employment, limited to the needs of the employer is contentious. In France, despite having some 328 180 CLR 266 (1977). defenders 335 this thesis is denied by the majority 336 for it would, as Strowel points out, deprive L 111-3 of meaning. 337 In Germany an implied licence is normally accepted inasmuch the creation results from the nature of the contract. 338 In the different context of exhaustion the CJEU has dealt with the concept of implied licence. The issue in Davidoff 339 was whether the consent of the trade mark holder could be implied or had to be explicit. The Court held that the licence "may be implied, where it is to be inferred from facts and circumstances prior to, simultaneous with or subsequent to the placing of the goods on the market", 340 however it could not be inferred just from the absence of action by the owner. 341 According to Taina Pihlajarinne, 342 implied licence "has been seen more like an act similar to assignment and declaration of intent, on the basis of which the other party can act in good faith".

Abuse of rights
As Lenaerts writes: "the concept of abuse of rights refers to situations in which a right is formally exercised in conformity with the conditions laid down in the rule granting the right, but where the legal outcome is against b) the objective of that rule". 343 The notion is strongly related to the concept of good faith. 344 This argument, explored earlier, goes: it is against good faith, constitutes contradictory behaviour and defeats the purpose of IPRs to use their blocking effect in certain situations of split ownership of overlaps. 345 If that was the circumstance in several of the analysed scenarios, it is nonetheless true that the application of this doctrine is very much dependent on the specific facts of each case. 346 Furthermore, even in blatant cases of "contradictory behaviour" there might be some reluctance to use this mechanism. 347 Nonetheless, Axel Metzger 348 rightly points out that there is normative support in articles 8(2) and 41(2) TRIPS and article 3(2) of Directive 2004/48 on the enforcement of intellectual property rights to hold that under certain conditions (such as the one under scrutiny) the doctrine of abuse might trump the exercise of IPRs.

Expanding copyright-internal solutions by analogy
Although there are no provisions regulating inter-IPRs conflicts of ownership, some regimes, most notably copyright and patents, have mechanisms to deal with conflicts resulting from joint ownership. 349 Often this is also achieved by applying the general rules of private law on common property or common tenancy. As Antoon Quaedvlieg 351 puts it "…cases of negative convergence will not always result in simple allowing one regime to take priority over another. Their effects can be much more subtle and sophisticated. For example, the weight of the core regime can result in the provisions of other regimes being subject to a different interpretation." In this section I shall consider the applicability of copyright specific solutions to the split ownership problem of overlaps by means of analogy. I do not regard patent provisions as a possible general solution since the potential of cumulation for patents is rather low 352 and there are more sensibilities regarding copyright that need to be accommodated.

On Analogy
Whenever there is a loophole in the law, an unforeseen situation which requires intervention of the law, legal doctrine speaks of gaps or lacunae (Lücken in German). 353 Claus-Wilhem Canaris defined it as "incompleteness contrary to the plan of the positive law (i.e. the law within the inner limits of the possible meaning of its text and customary law)". 354 The means to fill these gaps or lacunae rely mainly on analogy. 355 There is a deep debate among legal philosophers on the extent to which these happen. 356  common lawyers (who, when applying precedent, reason by analogy) 357 and civil lawyers (who usually depart from codified law and employ analogy mainly as a means to fill the gaps of the statute). 358 Nonetheless both systems are faced with scenarios which demand a legal answer although such an answer is not directly given. 359 It can be added that, whenever a civil lawyer reasons on the basis of precedent or a common lawyer interprets statute, their methodologies might to a certain extent converge or even swap. The first challenge in dealing with these situations lies in identifying them. There are cases in which the law is silent on the matter precisely because it chose to do so. Leaving the matter unregulated was a conscious and deliberate choice. 360 Then, there is there is no gap, it's a space "free from the law". 361 Other instances occur when the law bars the use of analogy, as regarding criminal sanctions, tax incidence and other limitations of fundamental rights. 362 No matter how logical it might seem to extend the law to those 357 D Hunter, 'Reason is too large: Analogy and precedent in law' 50 Emory Law Journal (2001) 1197, 1222. This is contested by F Schauer, 'Why Precedent in Law (and Elsewhere) is Not Totally (or Even Substantially) about Analogy' KSG Working Paper No. RWP07-036 (2007) 3 <http://ssrn.com/abstract=1747148> ("An argument from precedent does require an initial determination of relevant similarity, but from there the paths diverge, and the typical use of precedent, especially by judges, bears far less affinity to analogical reasoning than most psychologists and perhaps even some lawyers appear to believe"). 358 J Holland and J Webb, Learning Legal Rules (7 th edn, OUP 2010) 381; K Langenbucher, 'Argument by Analogy in European Law' 57 (2008)  situations, reasoning by analogy is not allowed. 363 Thus, the gap is left unfilled.
If one has identified a (real) gap and there is no impediment to analogy, the next step will be identifying a similar case which has a defined solution in the law and, on the basis of that similarity, extend the application of such solution in order to fill in the gap. It should be stressed that this determination of similarity has always to be done with the ratio legis in mind. 364 One needs to interpret the law in order to find out why it contains a certain command and, only after such an interpretation has been done, can one ascertain if the case at hand bears or not the similarity that justifies analogy. 365 Sometimes it is not possible to find a comparable solution in the law and, as the judge cannot excuse himself from deciding, 366 the Court will have to create a legal solution for the case. But even then the idea is that the legal solution to create is to be taken from the system, to establish a rule as the legislator would have established.
When one extends the application of a single norm to a case, it is said to be analogia legis (Gesetzanalogie), in case there is the need to create a rule, building on legal principles, then it is called analogia iuris (Rechtanalogie). 367 In the situation under analysis, there is an unforeseen situation which requires the intervention of the law. It is unforeseen for no specific regulation of ownership in the case of overlaps is found in statutes. Although some channelling provisions partially avoid overlapping protection, these do not 363 A much debated issue (with different outcomes in different jurisdictions) was whether the taking of electricity amounted to theft and if the prohibition of analogy in criminal law barred it. On the topic see C W Maris, 'Milking the Meter.' in P Nerhot (ed), Legal Knowledge and Analogy (Springer1991) 71-106. 364 Ibid 488. Article 10(2) of the Portuguese Civil Code puts it rather clear, stating: "There is analogy whenever the justifying reasons for the solution found in the law are also to be found in the unforeseen case". This was inspired by art. 1 of the Swiss Civil Code. 365 As follows from the definition given by Canaris, the difference between analogy and interpretation is the text of the law. If the solution can still be found in the text, it is interpretation, if not then we enter the realm of lacunae and its filling, C-W Canaris ( ban overlaps and there are provisions in the law that specifically allow it. 368 It is submitted that the situation is problematic and there was no intention to leave it unregulated. Furthermore, this is not a space outside the realm of law. The problem exists precisely due to imperfect interaction of the existing laws.
It can be argued that a proposal that extends copyright solutions by analogy can represent a limitation of the IPR of these people and limitations, as exceptions, should be limited to the minimum and respect the three-step test. 369 Additionally, it can be argued that there should not be room for analogy in exceptional cases.
This whole construction does not seem to hold true. The only question to be answered is whether, according to the ratio legis of a certain legal solution one considers applying by analogy, there is room for due differentiation or, on the other hand, the situation under analysis fits well and is similar, in its relevant aspects, to the situation explicitly considered by the lawmaker. If the latter is verified then one can proceed with the analogy. One good way of measuring the solution is considering how it works and whether the results achieved seem fair and sensible.

Connected works
As seen, connected works are works which, albeit independent, are combined for joint exploitation. 370 The situation envisaged is slightly different from the problem in hand. In the overlap situation there is no act of combination and the different IPRs are not independent, i.e. capable of separate exploitation. But there also significant commonalities: the use of the combined object is only possible in common and each of the authors has the power to prevent exploitation. Since the commercial interest will often lie only in the exploitation of the common object 371 such difference plays no significant role. The solutions found in the national legislation seem to provide a good basis for solving conflicts. The German solution, relying on good faith, allows for a great deal of flexibility. 372 The Italian solution promotes legal certainty in the cases where it designates the "prevailing" work. 373 When applying such solution by analogy, although a similar reasoning is possible, it faces most of the obstacles of the prevalence approach. 374 It is nonetheless better in comparison because, unlike prevalence, it safeguards the interests of the "eschewed" owner, which will still be entitled to payment. This represents the equivalent to a compulsory licence or a levy. The "eschewed" owner's right in that situation is reduced to a remuneration right.

Joint works
The qualification of joint works requires a tighter collaboration. 375 This is also due to the impossibility of exploiting each author's contribution separately. It is precisely this aspect that renders the concept of joint works particularly suitable to regulate the phenomenon of split ownership in cases of overlaps. 376 Even in face of those situations where unanimity is still required 377 there are mechanisms in place, such as court mediation, to overcome the blocking situation.
It must be added that in several jurisdictions there will be no real difference concerning joint works and connected works, since their respective regimes will lead anyhow to the general rules of private law on common property, common tenancy 378 or joint collaboration. 379 Applying the general rules of civil law might be another way of achieving a similar result. As said by Peukert 380 "the specific problem posed by joint ownership pertains to internal disputes. The necessity to agree on a mode of exploitation increases c) transaction costs and can prevent desirable uses. Therefore, the law should help to coordinate the internal operations of the group".

-Conclusion
As we have seen, there are no specific rules governing overlaps. The potential for different ownerships is high and most frequently these situations are not regulated by explicit contractual provisions. Beyond the mutual blocking situations, applying the priority in time principle can lead to unfair and difficult results. That's why a different number of strategies might and have been used.
This problem can be tackled by means of interpretation or analogy. The use of general concepts of private law such as implied contract/authorization and abuse of law/estoppel -the ultimate stronghold of every lawyer -faces some obstacles in the present legal framework.
Extending copyright solutions by analogy seems thus to be the best option in face of the law as it stands. Nonetheless, a combination of these methodologies is to be expected and should be explored.
It is submitted that it would be useful to have general provisions dealing with overlaps and particularly one addressing this problem. In the absence of a general regulation of overlaps, this rule can be systematically placed either on copyright ownership rules -preventing the different ownership or deeming the joint works/connected works solutions applicable to the problem -or as a limitation to the scope of rights -reducing them to a mutual remuneration right. 381 According to the latter solution, either of the overlapping IPRs owner's would be able to exploit the object independently and would owe the other his share of the profits, presumed equal. This can obviously lead to discussions -which are not alien to IP; for instance when it comes to damage calculation -on how much of a profit is due to a specific IPR and how much is a result of other efforts, investment and intangibles. 382 That is indeed discussing a wider and more fundamental question: how relevant is Intellectual Property?
IV 381 This has an equivalent effect to statutory cross-licensing. The solution is already found v.g. in art. 18(1) PTCA regarding connected works. 382 This is why B E Cookson (n 3 ) writes that a business has only one goodwill.

Annex
The interface of designs and copyright under Russian law * Under Russian Law, works of applied art can be protected both under copyright and design patents. 383 There seems to be no single filtering requirement, 384 but the system cannot be characterized as one of full cumulation. 385 Pavel Savitsky briefly describes case law as inconsistent; some decisions requiring registration for copyright protection and other relying on a teleological notion of IPRs (right A for x and right B for y) . 386 The interface between the two types of protection in matters of enforcement was clarified by the Resolution of the Plenum of the Supreme Court. 387 According to paragraph 24 of the Resolution, if the object of the author's rights is registered, with the consent of the right holder, as an industrial design, the means of enforcement of the exclusive rights shall depend on the nature of the infringement (emphasis added) . 388 If cumulation occurs and the plaintiff claims protection from both regimes in the same action one distinction will be drawn. In particular, if the alleged infringer performs actions using the industrial design by means affecting exclusive rights in the industrial design, the plaintiff can only invoke industrial design rights. In case of the violation of exclusive rights in the copyrighted work by means not related to the use of the industrial design, the copyright holder can invoke her exclusive right.
The boundary between acts that only are copyright infringement and not design infringement is very hard to draw and the Resolution provides no guidance in this respect. Even though copyright and design deal with commercial exploitation, the difference might lie in the mass reproduction (design-type infringement) vs. "plagiarism"/isolated copying (copyrightkind) . 389 Even if that is a distinction that might have some bearing in applied arts if we think of copyright in books, music or computer programs it loses its meaning as these works also aim at mass reproduction. Order 1989 (providing: "An article is to be regarded for the purposes of section 52 of the Act (...) as made by an industrial process ift is one of more than fifty articles") .
Precisely because of such objection the Order excludes "printed matter primarily of a literary or artistic character, including book jackets, calendars, certificates, coupons, dress-making patterns, greetings cards, labels, leaflets, maps, plans, playing cards, postcards, stamps, trade advertisements, trade forms and cards, transfers and similar articles.".
Design law scope is wider than copyright, as its protection is objective, there is no need to prove copying. 391 There are, nonetheless, certain actions covered by copyright and not by design law. 392 For instance, most copyright laws, including Russian law, establish moral rights 393 that give the author 394 certain powers and prerogatives. Moreover, the reproduction of a 3d design in two dimensions is clear copyright infringement, whereas it constitutes a debatable issue in the case of designs. 395 What seems to result from the Resolution is: in the overlapping area design patents prevail. But that prevalence does not preempt copyright in the design because there are other areas where there is no overlap. And in those areas copyright exists and might act without being hindered by design law.
The Resolution is silent in the matter of exceptions but they seem to have to be considered only in the context of the applicable regime. If the infringement is characterized as "design-type" and is later excused under a certain design specific defence, it does not seem possible for the owner to claim copyright additionally.
This constitutes an example of prevalence. 396 The Resolution of the Plenum of the Russian Supreme Court does not address directly the ownership problem but mentions the consent of the right holder. As the applicant for a design patent needs not to prove entitlement 397 this does not filter legitimacy of ownership. It is also not clear what are the consequences of a registration without the consent of the right owner. Most likely he will be able to claim entitlement to the design patent, pursuant to art. 1357(1) Civil Code of the RF.

Selected Legislative Provisions
The provisions presented are those cited in the text and which are not of usual access. Therefore international treaties, directives and regulations in force are not shown. Unless otherwise noted the translation are the author's responsibility.
UK Copyright, Designs and Patents Act 1988 9 Authorship of work.
(1) In this Part "author", in relation to a work, means the person who creates it.
(2) That person shall be taken to be-(aa) in the case of a sound recording, the producer; (ab) in the case of a film, the producer and the principal director; (b) in the case of a broadcast, the person making the broadcast (see section 6(3) ) or, in the case of a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast; (c) ……………….. (d) in the case of the typographical arrangement of a published edition, the publisher.
(3) In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.
10 Works of joint authorship.
(1) In this Part a "work of joint authorship" means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.
Annex II: Annex (1A) A film shall be treated as a work of joint authorship unless the producer and the principal director are the same person.
(2) A broadcast shall be treated as a work of joint authorship in any case where more than one person is to be taken as making the broadcast (see section 6(3) ) .
(3) References in this Part to the author of a work shall, except as otherwise provided, be construed in relation to a work of joint authorship as references to all the authors of the work.
11 First ownership of copyright.
(1) The author of a work is the first owner of any copyright in it, subject to the following provisions.
(2) Where a literary, dramatic, musical or artistic work or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.
(3) This section does not apply to Crown copyright or Parliamentary copyright (see sections 163 and 165) or to copyright which subsists by virtue of section 168 (copyright of certain international organisations) .
51 Design documents and models.
(1) It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work or a typeface to make an article to the design or to copy an article made to the design.
(2) Nor is it an infringement of the copyright to issue to the public, or include in a film or communicate to the public, anything the making of which was, by virtue of subsection (1) , not an infringement of that copyright.
(3) In this section-"design" means the design of any aspect of the shape or configuration (whether internal or external) of the whole or part of an article, other than surface decoration; and "design document" means any record of a design, whether in the form of a drawing, a written description, a photograph, data stored in a computer or otherwise.
52 Effect of exploitation of design derived from artistic work.
(1) This section applies where an artistic work has been exploited, by or with the licence of the copyright owner, by-  (2) After the end of the period of 25 years from the end of the calendar year in which such articles are first marketed, the work may be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work.
(3) Where only part of an artistic work is exploited as mentioned in subsection (1) , subsection (2) applies only in relation to that part.
(4) The Secretary of State may by order make provision-(a) as to the circumstances in which an article, or any description of article, is to be regarded for the purposes of this section as made by an industrial process; (b) excluding from the operation of this section such articles of a primarily literary or artistic character as he thinks fit.
(5) An order shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(6) In this section-(a) references to articles do not include films; and (b) references to the marketing of an article are to its being sold or let for hire or offered or exposed for sale or hire.
173 Construction of references to copyright owner.
(1) Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of copyright in a work, the copyright owner for any purpose of this Part is the person who is entitled to the aspect of copyright relevant for that purpose.
(2) Where copyright (or any aspect of copyright) is owned by more than one person jointly, references in this Part to the copyright owner are to all the owners, so that, in particular, any requirement of the licence of the copyright owner requires the licence of all of them. 2. An article is to be regarded for the purposes of section 52 of the Act (limitation of copyright protection for design derived from artistic work) as made by an industrial process if-(a) it is one of more than fifty articles which-(i) all fall to be treated for the purposes of Part I of the Act as copies of a particular artistic work, but (ii) do not all together constitute a single set of articles as defined in section 44(1) of the Registered Designs Act 1949; or (b) it consists of goods manufactured in lengths or pieces, not being handmade goods.
3.-(1) There are excluded from the operation of section 52 of the Act-(a) works of sculpture, other than casts or models used or intended to be used as models or patterns to be multiplied by any industrial process; (b) wall plaques, medals and medallions; and (c) printed matter primarily of a literary or artistic character, including book jackets, calendars, certificates, coupons, dress-making patterns, greetings cards, labels, leaflets, maps, plans, playing cards, postcards, stamps, trade advertisements, trade forms and cards, transfers and similar articles.
(2) Nothing in article 2 of this Order shall be taken to limit the meaning of "industrial process" in paragraph (1) (a) of this article.
Ireland Copyright and Related Rights Act, 2000 23.-(1) The author of a work shall be the first owner of the copyright unless -(a) the work is made by an employee in the course of employment, in which case the employer is the first owner of any copyright in the work, subject to any agreement to the contrary, (b) the work is the subject of Government or Oireachtas copyright, (c) the work is the subject of the copyright of a prescribed international organisation, or (d) the copyright in the work is conferred on some other person by an enactment.

Annex II: Selected Legislative Provisions
(2) Where a work, other than a computer program, is made by an author in the course of employment by the proprietor of a newspaper or periodical, the author may use the work for any purpose, other than for the purposes of making available that work to newspapers or periodicals, without infringing the copyright in the work. (3) Im übrigen ist das Urheberrecht unübertragbar.
(4) If the copyright is transferred to more than one person, the rules regarding coauthorship are applicable with the necessary adaptions.

Section 8 Joint authors
(1) If several persons have jointly created a work that is not seperatley (individually) exploitable, they are joint authors of the work.
(2) Das Recht zur Veröffentlichung und zur Verwertung des Werkes steht den Miturhebern zur gesamten Hand zu; Änderungen des Werkes sind nur mit Einwilligung der Miturheber zulässig. Ein Miturheber darf jedoch seine Einwilligung zur Veröffentlichung, Verwertung oder Änderung nicht wider Treu und Glauben verweigern. Jeder Miturheber ist berechtigt, Ansprüche aus Verletzungen des gemeinsamen (2) The right of publication and of exploitation of the work is owned jointly by the joint authors; alterations to the work shall be permissible only with the consent of the joint authors. However, a joint author may not refuse his consent to publication, exploitation or alteration contrary to the principles of good faith. Each joint author shall be entitled to assert claims arising from violations of the joint copyright; he may, however, 398 A translation by Ute Reusch can be found at http://www.gesetze-im-internet.de/ englisch_urhg/index.html. The translation provided here is however mine. demand performance only to all of the joint authors.
(3) Profits resulting from the use of the work are due to the joint authors in accordance to the extent of their involvement in the creation of the work, unless otherwise agreed between the joint authors.
(4) A joint author may waive his share of the exploitation rights (Article 15) . He shall make a declaration of waiver to the other joint authors. Upon his declaration his share shall accrue. § 9 Urheber verbundener Werke Haben mehrere Urheber ihre Werke zu gemeinsamer Verwertung miteinander verbunden, so kann jeder vom anderen die Einwilligung zur Veröffentlichung, Verwertung und Änderung der verbundenen Werke verlangen, wenn die Einwilligung dem anderen nach Treu und Glauben zuzumuten ist.

Section 43 Authors in employment or service relation
The provisions of this Subsection are applicable if the author has created the work in the fulfilment of duties resulting from an employment or service relationship, unless it results otherwise from the terms or nature of the employment or service relationship. § 69b Urheber in Arbeits-und Dienstverhältnissen (1) Wird ein Computerprogramm von einem Arbeitnehmer in Wahrnehmung seiner Aufgaben oder nach den Anweisungen seines Arbeitgebers geschaffen, so ist ausschließlich der Arbeitgeber zur Ausübung aller vermögensrechtlichen Befugnisse an dem Computerprogramm berechtigt, sofern nichts anderes vereinbart ist.

Article 69b Authors in employment or service relation
(1) If a computer program is created by an employee in the execution of his duties or following instructions by his employer, the employer is exclusively entitled to exercise all economic rights in the computer program, unless otherwise agreed.
(5) If the types of exploitation have not been specifically designated when an exploitation right was granted, the types of use to which the right extends shall be determined in accordance with the purpose envisaged by both parties to the contract. A L'existence ou la conclusion d'un contrat de louage d'ouvrage ou de service par l'auteur d'une oeuvre de l'esprit n'emporte pas dérogation à la jouissance du droit reconnu par le premier alinéa, sous réserve des exceptions prévues par le présent code. Sous les mêmes réserves, il n'est pas non plus dérogé à la jouissance de ce même droit lorsque l'auteur de l'oeuvre de l'esprit est un agent de l'Etat, d'une collectivité territoriale, d'un établissement public à caractère administratif, d'une autorité administrative indépendante dotée de la personnalité morale ou de la Banque de France. (…)

L-111-1
The author of an intellectual work enjoys, by the mere fact of its creation, a right of intellectual property exclusive and opposable to everyone. That right comprises attributes of moral and intellectual nature as well as the ones of economic nature that are established in the first and third chapters of the present Code. The existence or the signing of a commissioning or labour contract by the author does not imply any derogation of the right recognised in the first paragraph, unless otherwise provided in the code. Under the same conditions that right is also not affected when the author is a State agent or worker of a local entity or a public establishment of administrative nature, of an independent administrative authority with legal personality or the Bank of France. (…) Article L113-2 Est dite de collaboration l'oeuvre à la création de laquelle ont concouru plusieurs personnes physiques. Est dite composite l'oeuvre nouvelle à laquelle est incorporée une oeuvre préexistante sans la collaboration de l'auteur de cette dernière. Est dite collective l'oeuvre créée sur l'initiative d'une personne physique ou morale qui l'édite, la publie et la divulgue sous sa direction et son nom et dans laquelle la contribution personnelle

L -113-2
The work in whose creation several natural persons took part is called a collaborative work. The new work which incorporates a previous work without the collaboration of the author of the former is called a composite work. The work created by the initiative of a legal or natural person that edits it, publishes it and discloses it under its direction and name and in which the personal contributions of the several Annex des divers auteurs participant à son élaboration se fond dans l'ensemble en vue duquel elle est conçue, sans qu'il soit possible d'attribuer à chacun d'eux un droit distinct sur l'ensemble réalisé.
authors that took part in its elaboration is merged in a unity without being possible to attribute each of them a distinct right on the unity created is called a collective work. Article L113-3 L'oeuvre de collaboration est la propriété commune des coauteurs. Les coauteurs doivent exercer leurs droits d'un commun accord. En cas de désaccord, il appartient à la juridiction civile de statuer. Lorsque la participation de chacun des coauteurs relève de genres différents, chacun peut, sauf convention contraire, exploiter séparément sa contribution personnelle, sans toutefois porter préjudice à l'exploitation de l'oeuvre commune

L-113-3
The collaborative work is common property of the co-authors. The co-authors must exercise their rights in mutual agreement. In case of disagreement, civil court shall rule. When the contributions of each of the co-authors belongs to different genres, each of them can, unless otherwise agreed, exploit his contribution separately, without however harming the exploitation of the common work Article L113-4 L'oeuvre composite est la propriété de l'auteur qui l'a réalisée, sous réserve des droits de l'auteur de l'oeuvre préexistante.

L 113-4
The composite work belongs to the author that has created it, without prejudice to the rights of the author of the previous work.

L-113-5
The collective work, unless proven otherwise, belongs to the legal or natural person under the name of which it is disclosed. That person owns the copyright. (…)

L-132-31
In the case of a commissioned work used in advertising, the contract between the producer and the author implies, unless otherwise stated, an assignment to the producer of the exploitation of the work (…)

Annex II: Selected Legislative Provisions
Italian Copyright Act

Art 2.
Among others are protected by copyright the: (10) works of industrial design that have creative nature and artistic value.

Art 3
Collective works, resulting from the gathering of works or part of works, that constitute an autonomous creation, as a result of selection and combination in order to achieve a certain literary, scientific, teaching, religious, political or artistic goal, like encyclopaedias, dictionaries, anthologies, magazines and newspapers, are protected as original works independently and without prejudice to the copyright in the elements that constitute it.

Art. 6
The original title of copyright is acquired by the creation of the work as a particular expression of intellectual labour.

Art. 7
It is considered the author of a collective work the one who organizes and directs its creation. (…) Art. 10. Se l'opera è stata creata con il contributo indistinguibile ed inscindibile di più persone, il diritto di autore appartiene in comune a tutti i coautori. Le parti indivise si presumono di valore eguale, salvo la prova per iscritto di diverso accordo.

Art. 10
If the work has been created with the indistinguishable and indivisible contributions of several persons, the copyright is owned jointly by all coauthors. The undivided parts are presumed to be of equal value, unless otherwise agreed in writing.
The rules that regulate co-ownership are applicable. Each author can always exercise his moral rights individually and the work cannot be published, if unpublished, cannot be modified or used in a different way than the one according to which it was in its first publication, without the agreement of all the coauthors. However, in case of unjustified refusal by one or more co-authors, the publication, modification or new use of the work can be authorized by the judicial authorities and used accordingly.

Art. 11
All the State administrations, provinces and communes own the copyright in the works created and published on their behalf and at their expenses. The same applies to the not for profit private entities, unless otherwise agreed with the authors of the published works, and to all universities and other public cultural entities on the collections of their proceedings and publications Art. 12bis. Salvo patto contrario, il datore di lavoro è titolare del diritto esclusivo di utilizzazione economica del programma per elaboratore o della banca di dati creati dal lavoratore dipendente nell'esecuzione delle sue mansioni o su istruzioni impartite dallo stesso datore di lavoro. (…)

Art 12bis
Unless otherwise agreed, the employer is the owner of an exclusive right of economic use of the computer programs and the databases created by his employee in the context of his employment, according to instructions given by the employer. (…) Art. 34. L'esercizio dei diritti di utilizzazione economica spetta all'autore della parte

(…)
part, except for the rights arising out of the joint ownership between the parties. The profits of the economic use are shared according to the value of the literary and musical contribution. In the lyrical works the contribution of the musical part is considered to be three quarters of the overall value of the work. In the operette, melologues, musical compositions with words, balls and musical ballets, the value of the two contributions is considered the same. Any of the contributors has the right to use his own work separately and independently, except in the cases provided in the following article. (…)

Art. 37.
In the choreographic or pantomimic works and in other works which have music, words or dance, like the revue and similar works, in which the music does not have the main function or value, the exercise of the rights of economic use, unless otherwise agreed, belong to the author of the choreographic or pantomimic part and, in the musical revue, to the author of the literary part. (…) Sezione II Opere collettive, riviste e giornali Art. 38. Nell'opera collettiva, salvo patto in contrario, il diritto di utilizzazione economica spetta all'editore dell'opera stessa, senza pregiudizio del diritto derivante dall'applicazione dell'art. 7. Ai singoli collaboratori dell'opera collettiva è riservato il diritto di Section II Collective works, magazines and newspapers Art. 38. In the collective work, unless otherwise agreed, the right of economic use belongs to the editor of the work, without prejudice to the right resulting from article 7.
The contributors to the collective work retain the right to use their own work separately, in accordance to what has been established and, in absence of agreement, according to the following rules.

Section II Of copyright ownership Art 11 Ownership
Copyright belongs to the intellectual creator of the work, unless otherwise stated.

Art 13 Subsidized work
Whoever pays or subsidizes in any way, totally or partially, the preparation, conclusion, disclosure or publication of a work does not, by that reason, unless agreement in writing to the contrary, any copyright.
Art. 14 Determining ownership in exceptional cases 1 -Without prejudice to article 174, the ownership of copyright either in a commissioned work or a work created in fulfilment of duties arising out of a labour contract is to be determined according to what has been established.
3 -The absence of the name of the creator according to common usage establishes a presumption that the copyright is owned by the entity for whom the work was created.
4 -Even when the copyright belongs to the entity for whom the work was created, its intellectual creator can demand, on top of the established compensation and independently of disclosure or publication, an equitable remuneration: a) When the intellectual creation clearly exceeds the performance, even if zealous, of the function or task that was attributed to him; b) When out of the work's exploitation result advantages that were not foreseen or predicted in the remuneration established.
Artigo 16.º Noção de obra feita em colaboração e de obra colectiva 1 -A obra que for criação de uma pluralidade de pessoas denomina-se: a) Obra feita em colaboração, quando divulgada ou publicada em nome dos colaboradores ou de algum deles, quer possam discriminar-se quer não os contributos individuais; b) Obra colectiva, quando organizada por iniciativa de entidade singular ou colectiva e divulgada ou publicada em seu nome. 2 -A obra de arte aleatória em que a contribuição criativa do ou dos intérpretes se ache originariamente Art. 16 Definition of collaborative work and collective work 1 -The work created by several people is called: a) Collaborative work, if it has been disclosed or published under the name of the collaborators or one of them, independently of the possibility to differentiate individual contributions: b) Collective work, when organized by the initiative of a singular or collective entity and disclosed or published under its name. 2-The aleatory work, in which the creative contribution of one or several interpreters is predicted is considered a collaborative work.

Art. 17
Collaborative work 1 -The copyright in a collaborative work, in its entirety, belongs to all that took part in its elaboration and the rules on common property are applicable to the common exercise of copyright. 2 -Unless otherwise agreed in writing, the collaborator's contributions are presumed equal. 3 -If the collaborative work is disclosed or published under the name of only one or some of the collaborators it is presumed, unless otherwise stated, that the remainder have given up their rights to the ones under whose name the work is published or disclosed. (…) Artigo 18.º Direitos individuais dos autores de obra feita em colaboração 1 -Qualquer dos autores pode solicitar a divulgação, a publicação, a exploração ou a modificação de obra feita em colaboração, sendo, em caso de divergência, a questão resolvida segundo as regras da boa fé. 2 -Qualquer dos autores pode, sem prejuízo da exploração em comum de obra feita em colaboração, exercer individualmente os direitos relativos à sua contribuição pessoal, quando esta possa discriminar-se.

Art. 18
Individual rights of the authors of the collaborative work 1 -Any of the authors can demand the disclosure, publication, exploitation or modification of the collaborative work and, in case of divergence, the dispute shall be settled according to the rules of good faith. 2 -Any of the authors can, without prejudice to the joint exploitation of the collaborative work, exercise his own individual rights in the contribution inasmuch it is distinguishable. deve pagar ao autor uma remuneração equitativa.
Greek Copyright Act 399 Article 8: Employee -Created Works Where a work is created by an employee in the execution of an employment contract the initial holder of the economic and moral rights in the work shall be the author of the work. Unless provided otherwise by contract, only such economic rights as are necessary for the fulfilment of the purpose of the contract shall be transferred exclusively to the employer. The economic right on works created by employees under any work relation of the public sector or a legal entity of public law in execution of their duties is ipso jure transferred to the employer, unless provided otherwise by contract.

Dutch Copyright Act 400
Article 5 1. If a literary, scientific if artistic work consists of separate works by two or more persons, the person under whose direction and supervision the work as a whole was made or, if there is no such person, the compiler of the various works, is taken to be the maker of the whole work, without prejudice to the copyright in each of the separate works. 2. Where a separate work in which copyright subsists is incorporated in a whole work, the reproduction or communication to the public of any such separate work by any person other that its maker or his successor in title is regarded as infringement of the copyright in the whole work.
3. Unless otherwise agreed between the parties, if such a separate work has not previously been made public, the reproduction or making public of that separate work by its maker or his successor in title is regarded as an infringement of the copyright in the whole work of which it is part.

Article 7
Where labour which is carried out in the service of another consists in the making of certain literary, scientific or artistic works, the person in whose service the works were created is taken to be the maker, unless the parties have agreed otherwise.

Article 8
A public institution, an association, a foundation or a company that makes a work public as its own, without naming any natural person as the maker, is taken to be the maker of that work, unless it is proved that in the circumstances the making public of the work was unlawful.
First Proposal for a Council Directive on the legal protection of databases COM (92) 24 final, 13 May 1992 Art. 2 (…) (5) Member States shall provide for a right for the maker of a database to prevent the unauthorized extraction or re-utilization, from that database, of its contents, in whole or in substantial part, for commercial purposes. This right to prevent unfair extraction of the contents of a database shall apply irrespective of the eligibility of that database for protection under copyright. It shall not apply to the contents of a database where these are works already protected by copyright or neighbouring rights. Art. 3 (…) (4) Where a database is created by an employee in the execution of his duties or following the instructions given by his employer, the employer exclusively shall be entitled to exercise all economic rights in the database so created, unless otherwise provided by contract.

Art. 2.5 -Works made in the course of employment
Unless otherwise agreed, the economic rights in a work created by the author in the execution of his duties or following instructions given by his employer are deemed to be assigned to the employer.

Art. 2.6 -Works made on commission
Unless otherwise agreed, the use of a work by the commissioner of that work is authorised to the extent necessary to achieve the purposes for which the commission was evidently made.