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FAQs on General Aspects

 

Intellectual property

  • What is intellectual property?

In general terms, intellectual property is understood as all creation of the human intellect and is essentially divided into two branches:

- Author's rights, which covers literary works (such as novels, poems and plays), films, musical works, works of art (such as drawings, paintings, photographs and sculptures), and architectural designs, etc.

- Industrial property, which includes inventions, patents, trademarks, industrial designs and geographical indications of origin.

  • Which laws regulate intellectual property?

In the Spanish legal framework, the Intellectual Property Law (LPI) refers exclusively to author's rights while industrial property is protected by laws of patents, trademarks, etc. The main law in Spain is the Revised Text of the Intellectual Property Law, approved by Legislative Royal Decree 1/1996, of April 12, with different subsequent amendments.

Defence of author’s rights

  • Who is responsible for the defence of intellectual property?

The author is entitled to defend the authorship of his work by filing the corresponding legal actions against anyone who has infringed his author rights.

In case of exclusive transfer of rights, the transferee is entitled, independently of the author, to pursue the violations of the rights that have been transferred to him/her. However, this legitimation does not include the defence of moral rights , which are unwaivable and inalienable for the author.

  • What can an author do to defend their rights?

The rights holder may request, without prejudice to other actions, the cessation of the unlawful activity and demand compensation for material and moral damages incurred. Also and previously, they may require the adoption of precautionary measures for immediate protection.

  • Can a criminal action be taken to protect intellectual property?

Protection of intellectual property against criminal actions is compiled on Articles 270, 271 and 272 of the Penal Code of 1995 , being Art . 270 which sets out the prohibited conduct and the conditions for its infringement be subject to criminal matters.

Rights

  • What are author's rights?

Author's rights are moral and exploitation faculties, that are recognized to the author of a literary, artistic or scientific work by the mere fact of its creation, whether published or unpublished.

There are two types of author's rights:

  • Moral rights correspond to the author of the work and are unwaivable and inalienable, so they can not be transferred or surrendered.
  • Property or exploitation rights empower the author to decide on the use of his work, which can not be carried out without his authorization, except in certain cases under the Spanish Intellectual Property Act, known as limits or exceptions.
  • What is the duration of intellectual property rights?

The general term of the rights of exploitation of the work is the life of the author plus seventy years after his death or declaration of death. There are other deadlines according to types of works or rights, as well as for the works of authors deceased before 1987.

  • Can intellectual property rights be transferred or assigned?

The exploitation rights of a work may be transmitted 'mortis causa' by any means acceptable in law and in other cases by a written document.

Subjects

  • Who is the author of a work?

The natural person who creates a work is considered the author of it. However, the authorship of legal persons is also recognized in case of computer programs and collective works.

  • Is it the same to be an author as a copyright holder?

It is not the same to be an author as the copyright holder. The copyright holder may be the author or another person. If it is the author, we will speak of an original holder, since his ownership was born when the work was created. If the author transfers his rights to another person, we speak of the derivative holder .

  • And legal persons, can they be copyright holders?

Legal persons can be holders of economic rights , but never of moral rights .

  • Can you presume the authorship of a work?

It is presumed that the author of a work is whoever appears as such in it, by means of his name, signature or sign that identifies him. Anyone who discusses the authorship of a work must prove that the person who claims to be the author is not.

Works

  • What works are subject to intellectual property?

All original literary, artistic or scientific creations expressed by any medium or support, tangible or intangible, that currently exists or is invented in the future are the subject of intellectual property. The works subject to intellectual property are defined in articles 10, 11 and 12 of the Intellectual Property Law.

  • What kind of works are excluded from protection?

Intellectual property does not extend to "ideas, procedures, methods of operation or mathematical concepts as such" (Article 2 of WIPO Copyright Treaty ), but it extends to the form of their expression.

Intellectual property will not be applied to the news of the day or events that have the character of simple press information (Article 2.8 of the Berne Convention ).

In addition, legal or regulatory provisions, resolutions of judicial bodies and acts, agreements, deliberations and opinions of public bodies, as well as their official translations (Article 13 of the Intellectual Property Law) are excluded.

  • What are the so-called "orphan works"?

These are works whose rights holders are not identified or can not be located through a diligent search (Article 37bis of the Intellectual Property Law). It happens, for example, in case that the author's name is missing from the document, the work has been published anonymously or the heirs of the author's rights are unknown, in case of death.

  • Is it obligatory to register the works in the Intellectual Property Registry?

No. The registration of works is voluntary. Author's rights are born when the work is created. The Registry is only a means of protection and proof of rights.

Protection and management of author’s rights

  • What are management entities?

The management entities are non-profit associations of intellectual property rights holders that are responsible for the management of economic rights on behalf of these owners. They need the authorization of the Ministry of Culture and Sports for its operation.

  • What are independent management operators?

Independent management operators are legally constituted entities that are responsible for the management of copyright on behalf of the corresponding rights holders. Unlike the management entities, they are for-profit organizations.

  • Does the use of works and services without authorization have consequences?

The use of works and services without the authorization of copyright holders may imply the infringement of intellectual property rights. Faced with an infraction, the holder may exercise criminal and / or civil actions provided for in the law.

  • Do I need authorization to use published works and services?

Yes, the authorization of the copyright holder is necessary, since they are exclusive rights. However, in some specific cases established in Title III, Chapter II (articles 31 to 40 bis) of the LPI , a work may be used without requesting authorization.

  • Do I need authorization to use works and features published on the Internet?

Yes, as for the rest of works. When disseminating a work on the Internet, the right to authorize the exploitation of the work or to receive remuneration for it is not lost, therefore, to use works and services available on the Internet, authorization must be requested from the rights holder.

  • How do I get the authorization?

Authorization must be requested from the copyright holder (author, publisher, etc.), either by contacting directly or, as the case may be, through a collective rights management entity. You must indicate the material you want to use and for what purpose and it is convenient to keep the response received as proof.

The cases established in the law in which limited use of work is permitted without the consent of the copyright holder are excluded.

  • What is the Copyright?

Copyright is the term with which the Anglo-Saxon legislation designates exploitation rights. The copyright symbol © details who is the owner of the exploitation rights. Frequently the terms "copyright" and "author's right" are used as synonyms, although legally they are not exactly the same.

The LPI (Article 146) recognizes the copyright symbol © as an indication of rights reservation.

  • Is a work that does not have the copyright symbol exempt from copyright protection?

In no case the work is unprotected. It is not obligatory for the protection of copyright putting the symbol © before the author's name. When a work does not contain any symbol or indication, it does not mean that it does not require the prior authorization of the author.

Other concepts

  • What is public domain?

It is understood as the situation in which the works are at the expiration of the term of protection of exploitation rights and they can be used by anyone provided that their authorship and integrity are respected.

  • What is private copying?

It is a limit to the right of reproduction held by the holders of intellectual property rights. It allows a natural person, for his / her private use, to reproduce the published works that have been legally accessed and from a lawful source, except electronic databases and computer programs. The copy obtained can not be used collectively or for profit.

  • What is plagiarism?

Plagiarism consists of copying other people's works, giving them as their own. In this way, both moral and exploitation rights corresponding to the author of work are undermined, as well as the public deception that occurs.

  • What is piracy?

Piracy" is a term used to describe any infringement of copyrights, such as illegal copies or theft of intellectual property rights.

  • How is piracy punished?

Piracy can be punished with imprisonment and a fine as established in articles 270, 271 and 272 of the Penal Code .

  • Can intellectual property be mortgaged?

The exploitation rights of works protected by the Intellectual Property Law may be subject to mortgage.

 

 

 

University library - Intellectual Property


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