1. Overview of Spanish IP Law
Intellectual property means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields.
Intellectual property includes the exclusive right to exploit any literary, artistic or scientific creation within the limits provided by law.
Intellectual property is traditionally divided into two branches, “industrial property” and “copyright“.
2. Who must be considered the author of the work created?
The author is the creator of literary, artistic or scientific creations. The intellectual property right of any work created corresponds to its author.
- The author of the work created cannot waive such authorship.
- The author may not transfer the intellectual property by means of an act “inter vivos” acts (i.e. sale, donation) or “mortis causa” acts (i.e. inheritance).
When the work was made available to the public anonymously or under pseudonym, the intellectual property rights are held by the physical or juridical person that makes it public, as long as the author does not disclose his identity.
All intellectual property rights upon a joint work belong to its co-authors.
3. The object of Intellectual Property
The object of Intellectual Property are the original works in the literary, artistic or scientific field, regardless of the specific form of expression, such as the following:
- Literary and publicists works, conferences, lectures and any other written or oral similar works.
- Musical compositions, with or without text.
- Films, as well as any other audiovisual works.
- Dramatic works, musical dramas, choreographic operas, pantomimes and any other theatrical works.
- Works of art such as sculptures, paintings, graphics, engravings, lithography, comics.
- Architecture works, including the plates, models or technical drawings.
- Maps and drawings from the field of topography, geography and science in genera.
- Computer sotfware.
Without prejudicing the rights of the authors of the original works, any translations, adaptations, annotates, musical arrangements and transformations of a literary, artistic or scientific work that represent an intellectual work, are also the object of intellectual property.
4. Rights of the author of a work
The author of a work has two types of rights:
a) Personal or moral Rights
The author of a work has the following moral rights:
- To claim the acknowledge of the quality of author of the work.
- To claim respecting of the integrity of the work.
- To avoid any modification or harm brought to the work, if it prejudices the author’s honor or reputation.
- To modify the work, respecting the rights that third parties have acquired.
- To decide in what way and when the work will be made available to the public.
- To decide under what name the work will be communicated to the public.
- To take back the work, compensating if necessary, the owners of the exploiting rights, prejudiced by this taking.Moral rights cannot be object of a repealing. After author’s death, moral rights are transmitted through inheritance.
b) Patrimonial rights
The author of a work has the exclusive patrimonial right to decide in what way and when the work will be used or exploited.
The author has the exploitation rights of his work during his whole life plus 70 years.
In the case of works made for hire: a work prepared by an employee within the scope of his or her employment, or a work especially ordered or commissioned for use, it is the employer and not the employee who is considered to be the author.
5. Infringement of the intellectual rights legally protected
Infringement of intellectual property rights can be prosecuted, the prejudiced may bring civil, criminal or administrative action before Spanish Courts.
a) Civil action:
Actions for intellectual property rights’ infringement are taken through the Civil Ordinary Procedure as stated by the Spanish Civil Prosecution Act (Ley de Enjuiciamiento Civil). The court may award damages in respect of the infringement, i.e. compensation for lost sales and markets as a result of the infringing activity.
The prejudiced may claim compensation for damages within 5 years from the date which he could bring legal action.
The person or legal entity claiming to be injured or threatened by injury may request, previous initiation of court proceeding, precautionary measures, provided that the existence on the market of the unlawful copies can cause considerable damages. Such measures are intended to protect the author’s rights, preventing the committing, or the continuation of the committing of acts of piracy.
Such measures may consist of:
- Ordering the termination of the manufacture or distribution of the unathorized copies.
- Seizure of the goods suspected to be unathorized copies.
- Seizure of the tools that could be used to manufacture or package the unauthorized copies.
b) Criminal action
Besides civil action, criminal action can be brought against infringements of intellectual property rights such as reproduction or distribution of the work without the author’s authorization. Penal sanctions may include imprisonment by a term from 6 months to 2 years, or fines.
6. The Intellectual Property Registry
6.1. General Information
The Intellectual Property Registry (Registro de la Propiedad Intelectual) is an administrative body which protects the intellectual property rights from authors of literary, artistic or scientific works. It is attached to the Ministry of Education, Culture and Sports (Ministerio de Educación, Cultura y Deporte).
Although registration of the works is not a condition for the author to benefit from copyright protection, it is a formality intended to make a public record of the basic fact of a particular copyright, this may serve to prove the existence of the work and its ownership.
The following cannot benefit of legal protection, and therefore cannot be registered: ideas, theories, concepts, operation proceedings, official texts of politic, legal, administrative or judiciary nature and their official translations.
6.2. Registration Procedures
The authors or the owners of intellectual property rights, may apply for the registration of their works, the registration is effective since the date of application. Applications may be filed to any Provincial Office of the General Registry of Intellectual Property (Oficina Provincial del Registro General de la Propiedad Intelectual) or to the Spanish consular offices (oficinas consulares de España) abroad.
Application requirements: In order to register a work, a completed official application form and specific documentation will be required. A non refundable fee must also be paid.
This is a public registry; any person may apply to checking details of the works registered, however, you cannot have a look at the work recorded, it is only allowed to the authors or intellectual property rights’ owners.
6.3. The © symbol
The owner of the work protected by the intellectual property law may put the world on notice about it by attaching a copyright notice, the symbol ‘©’, to the work although it is not registered.
No authorization is needed to attach this symbol to your work.
7. The Intellectual Property Registry, the legal deposit and the I.S.B.N.
The Intellectual Property Registry serves to protect the intellectual property rights. Registration is not a condition to be legally protected.
The Legal Deposit holds the national bibliographic production.
The I.S.B.N. (International Standard Book Number) is an international numerical code that editors must indicate in books and leaflets in order to simplify the statistical and commercial operations among editors and booksellers.
8. Getting legal help
We can help you solve your IP-related issue or case in Spain.