Hogan Lovells

Hogan Lovells' LimeGreen IP

The site will give you an overview of Intellectual Property law and related procedures, and how these may differ from country to country.

Copyrights - Copyright protection - Spain

Overview

Copyright is governed in Spain by Law 1/1996, of 12 April, on Copyright (the "Spanish Copyright Act" or "SCA"), where it is referred to as intellectual property (patents and trademarks being the subject matter of industrial property).  On 14 February 2014, the Spanish Government approved the draft for the partial amendment to the SCA, which was published on 21 February 2014. The draft will now move to Parliament to be discussed and approved which should take between approx. 5-12 months.

Copyright protection is awarded to artistic, literary (including software) and scientific works by the mere fact of their creation.

The SCA also protects a number of copyright-related rights such as the rights of performers, phonograph producers, audio-visual recordings producers, broadcasting organizations, ordinary photographs and sui generis rights in databases.

The Spanish legal framework stems from the continental tradition that divides copyrights along moral rights and patrimonial or exploitation rights. Moral rights are personal rights granted to the author over the work from the moment of its creation, and are inalienable; they cannot be waived, and are perpetual. Exploitation rights are on the other hand freely transmissible and last for a limited term.

Frequently Asked Questions

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-What are the works that can be protected?

Pursuant to Article 10 of the Spanish Copyright Act, the subject-matter of copyright comprises all original literary, artistic or scientific works expressed in any mode or form, whether tangible or intangible, known at present or that may be invented in the future. These creations must be human, excluding those fully created by a machine or an animal.

The SCA provides the following non-exhaustive list of works:

  • Books, pamphlets, printed matter, correspondence, writings, speeches and addresses, lectures, forensic reports, academic treatises and any other works of the same nature
  • Musical compositions with or without words
  • Dramatic and dramatic-musical works, choreographic works and entertainments in dumb shows and theatrical shows in general
  • Cinematographic works and any other audiovisual works whatsoever
  • Sculptures and works of painting, drawing, engraving and lithography, picture stories, cartoon or comics, including drafts or sketches therefore, and other works of three-dimensional art, whether applied or not
  • Projects, maps, models and drawings of architectural works and works of engineering
  • Illustrations, maps and sketches relating to topography, geography and science in general
  • Photographic works and works expressed by a process analogous to photography
  • Software.

Derivative works such as translations, adaptations, revisions, summaries, musical arrangements and other kinds of transformations of literary, artistic or scientific works are also protected by the SCA, as well as databases - following certain specific requirements. However, legal and regulatory provisions, judgments and orders issued by the courts and decisions issued by public authorities are expressly excluded from protection.

While not specifically explained in the SCA, it is widely agreed by legal commentators and Spanish courts that the work needs to comply with the originality and creativity requirements in order to deserve copyright protection, including both objective (known as "objective novelty") and subjective (i.e. the work being an expression of the author's personality) originality. However, the extent of the minimum threshold of originality has not yet been unanimously defined by the courts (e.g. there is case law which establishes protection for instruction manuals and classified ads).


-Will the work be protected in other countries?

Pursuant to the Spanish Civil Code, the principle of territoriality applies to intellectual and industrial property rights, as those rights shall be protected within Spanish territory in accordance with Spanish law - without prejudice to the provisions of international treaties and conventions to which Spain is a party.

The SCA provides that Spanish nationals, EC nationals, nationals of third countries ordinarily residing in Spain, or having published in the Spanish territory for the first time or within thirty days of having been published in another country benefit from copyright protection established by Spanish law. Third country authors also benefit from the reciprocity principle when their countries award protection to Spanish nationals.

Spain is a party to most of the international treaties and conventions on copyright protection, namely:

  • Berne Convention for the protection of Literary and Artistic Works (1971 Paris revision)
  • Universal Copyright Convention (1952)
  • Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961)
  • Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms (1971)
  • World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights - TRIPS (1994)
  • World Intellectual Property Organization Copyright Treaty (1996)
  • World Intellectual Property Organization Performances and Phonograms Treaty (1996).

-What are the requirements for copyright protection?

Accrual

The SCA specifically provides that copyrights are compatible with other IP rights, in particular, with any right relating to the physical object supporting the work (such as designs), as well as with patents and utility models (for example, where software -protected by copyright- is attached to an invention) and other IP rights.

Registration

Registration of works with the Intellectual Property Registry is possible under Spanish law. However, as works are protected by the mere creation, their registration is not required for obtaining copyright protection. There are, however, certain advantages of registration, as it constitutes a presumption of the existence of the right and that it pertains to the recorded right-holder. Recordal is also requested in order to constitute guarantees (i.e. chattel mortgages) over copyrights.
The use of the copyright symbol © is permitted by the SCA for the author and exclusive licensee, however it does not confer any right whatsoever.

Term of protection

The term of protection under the Spanish Copyright Act depends on the set of rights concerned. While moral rights are perpetual, exploitation rights last, as a matter of principle, for 70 years from the death of the author or from the legal publication of the protected work in the case of anonymous, pseudonymous or collective works - including those works performed by companies.
The SCA also provides for specific rules on the term of protection of copyright-related rights, such as the right of performers, phonograph producers, audio-visual recordings producers, broadcasting organizations, ordinary photographs and sui generis right in databases.


-What are the author's rights under the national law?

Spanish copyright law confers to authors moral and exploitation rights.

Moral rights are closely linked to the author's personality, and thus cannot be waived or transferred. The SCA sets out the following specific rights under the heading of "moral rights" of authors:

  • The right to decide whether to make a work available or not, and in what form
  • The right to claim authorship of the work
  • The right to claim respect for the integrity of the work
  • The right to alter the work
  • The right to withdraw the work from circulation.

Even if not specifically expressed in the SCA, it is understood that moral rights are perpetual and survive the author's death. They may however be transmitted to the author's heirs upon his/her death.

Exploitation rights include every mode of exploitation or economic use of the protected work. These rights may, unlike moral rights, be freely assigned and have a limited duration in time.

The Spanish Copyright Act specifically sets out a list with the patrimonial or exploitation rights, which are:

  • Reproduction;
  • Distribution;
  • Communication to the public; and
  • Transformation.

The SCA sets out limits to exclusive exploitation rights, which are specifically listed in the law, as no "fair use" doctrine is usually applied by Spanish courts - although the Supreme Court held in 2012 that certain "innocuous" uses of protected content would not amount to copyright infringement (for more information, please visit: http://ehoganlovells.com/rv/ff000843795db37b328eb2de98439207f37a9d7a/p=9638820 and  http://ehoganlovells.com/rv/ff000843795db37b328eb2de98439207f37a9d7a/p=7923853).

These limits include the right of private copying; the reproduction of works meant for the disabled; the reproduction of works for public security purposes or for carrying out administrative, judicial or parliamentary proceedings; quoting and summarizing with teaching or investigation purposes; news reporting; the reproduction of works located in public thoroughfares; the reproduction, lending and consultation in public establishments; the execution of protected works in official acts and religious ceremonies; and parodies. The law also provides that upon the death of the author, the courts may limit the heirs' right to non-communication of the works, should this hinder access to culture.

It may be noted that private copying of copyrighted work, even if permitted, allows for a fair compensation to the authors of protected works. Up until now, private copying gave rise to copyright levies managed by collecting societies, but as a consequence of the "Padawan decision" issued by the Court of Justice of the European Union, copyright levies were abolished by the Spanish government and, from 01 January 2012, the compensation to authors is charged to the National budget.


-How do you assign copyrights / author rights?

Under Spanish law, exploitation rights can be freely transmitted, unlike moral rights that cannot be assigned or waived.

The Spanish Copyright Act tends to be protective so for instance, the assignment of the works that the author may create in the future is void, as is the undertaking not to create in the future.

In addition, clauses of assignment or license agreements need to be accurately drafted in order to expressly reflect their exclusive or non-exclusive character, term, means of exploitation and the territorial scope. Failure to mention these elements results in the assignment being non-exclusive, for a 5-year term, restricted to Spanish territory and to the mode of exploitation necessarily deduced from the agreement.

The SCA provides that compensation to the author will in principle be proportional to the profit obtained by the assignee as a result of the exploitation of the assigned copyrights. Payment by lump sum is possible but limited to certain restricted circumstances and the author may apply for a review of the remuneration within ten years of the assignment in case the compensation was disproportionate with the profit obtained by the assignee.