The appointed trustee will have a right of choice, which means that the performance of the license agreement will remain on hold until the trustee, having obtained the authorization of the creditors' committee, declares either to take over the agreement on behalf of the bankruptcy by assuming all of the relevant obligations, or to withdraw from it.
In the absence of such a declaration, the counterparty in the license agreement may put the trustee on notice and request that the competent judicial authority assign him/her a term, not exceeding 60 days, after which the agreement shall be deemed to be dissolved.
By contrast, specific rules are provided for a publisher's bankruptcy (see in particular art. 135 of the Italian Copyright Law). In this case, the trustee can alternatively decide to: (i) continue the business's activities (and, thus, also take over the license agreement in place of the bankruptcy); (ii) transfer the business within one year from the publisher's bankruptcy to another publisher; or (iii) terminate the license agreement if, within one year from the publisher's bankruptcy, the trustee has neither continued the business's activities nor opted for its transfer.From a practical standpoint, the licensee should proceed with the recordal of the IP license agreement, at the relevant registry, before insolvency proceedings formally begin.
In this regard, the Italian Industrial Property Code contains specific provisions on recordals and the recordal procedure relating to license agreements. Recordals have a declaratory effect, which means that they make an act enforceable against third parties. In the absence of such a formality, the IP license agreement will be unenforceable against the bankruptcy and the licensee may remain exposed to potential infringement actions brought against him/her by the trustee itself.
By contrast, the Italian Copyright Law does not contain a provision on recordals. However, there is an exception for cinematographic works, for which a recordal procedure was introduced by Law No. 153 of 1 March 1994 (article 22). Specifically, in this case, the recordal will have to take place in the Public Cinematographic Register kept by the SIAE (the Italian Society of Authors and Publishers, established for the collective management of authors' rights).