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Rights, Subjects and Works

Intellectual property

Intellectual property is the set of rights that correspond to the authors with respect to the works they have created.

Intellectual property according to the World Intellectual Property Organization (WIPO) is essentially divided into two branches:

  • The copyright.
  • Industrial property.

In the European and national continental scope, the concepts of intellectual property and copyright are usually assimilated.

 

In the Spanish legal framework, the Intellectual Property Law (LPI) refers exclusively to copyright and other related rights while industrial property is protected by the laws of patents, trademarks, etc.

Rights

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to the author of a literary, artistic or scientific work by the mere fact of its creation, whether published or unpublished.

Copyright is of two types:

  • The moral rights correspond to the author of the work, are inalienable and inalienable, so they can not be given or renounced. They correspond to the right to:
    • Make the disclosure of the work.
    • Require recognition of authorship ( attribution ).
    • Demand respect for the integrity of the work.
    • Modify the work respecting the acquired rights.
    • Withdrawing the work of commerce for changing convictions, after compensation to the holders of exploitation rights, and recognizing the preference of the previous holders of rights, in the event that it decided to resume the exploitation of their work.
    • Access the unique or rare copy of the work that is in the power of another.
  • The economic rights allow the owner of the work to obtain an economic retribution for the use of his work and may assign them to third parties. The author is empowered to decide on the use of his work, which can not be carried out without his authorization, except in certain cases foreseen in the LPI that are known as limits or exceptions.

We can order them in:

  • Exploitation rights
    • Right of Reproduction: obtaining copies of all or part of the work.
    • Right of Distribution: make the work available to the public through its sale, rental, loan or any other form.
    • Right of Public Communication: act by which a group of people can have access to the work.
    • Right of Transformation: includes the translation, adaptation and any other modification of a work, producing derivative works or not.
    • Right of Collection: the author can publish his works in chosen or complete collection.
  • Rights of simple remuneration

They grant authors the right to request economic compensation for the exploitation of their work, to which they can not oppose. For example, for acts of reproduction such as private copying, for acts of distribution such as loans or for acts of communication to the public such as audiovisual works among other cases.

There are also other related or related rights, which protect creative activities corresponding, fundamentally, to artists, performers, photographers, producers of phonograms and audiovisual recordings and to broadcasting entities.

Subjects

Author of a literary, artistic or scientific work is the natural person who creates it. It has recognized the rights of personal and patrimonial character that attribute the full disposition and the exclusive right to the exploitation of his work, without more limitations than those established in the law.

But it is not the same to be an author as the owner of copyright . The copyright owner may be the author or another person if it comes from a contract of assignment or license with the author.

Legal persons may be owners, have rights and benefit from legal protection. However, authorship may be recognized to legal persons in the case of computer programs and in the performance of collective works. Legal persons may be holders of economic rights, but never of moral rights.

Authorship can be individual, but also plural with the intervention of more than one author. The Law distinguishes three assumptions:

  • The work in collaboration. The work is the unitary result of the collaboration of diverse people. Everyone owns the work as authors with rights to it, not necessarily in the same proportion.
  • The collective work. The work is created with the personal contribution of different authors, under the initiative and coordination of a physical or legal person who publishes and discloses it, corresponding to the latter, the original ownership of intellectual property, while co-authors have no rights, unless otherwise agreed.
  • The composite work. The work is created with the incorporation of a pre-existing work without the collaboration of the author of the latter, without prejudice to the rights that correspond to it and its necessary authorization.

The author of a work is presumed to 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

The WIPO Copyright Treaty provides that "copyright protection shall cover expressions but not ideas, procedures, methods of operation or mathematical concepts per se"

At our LPI , the object of protection of intellectual property "is any original literary, artistic, scientific creation expressed by any means or support, tangible or intangible, currently known or invented in the future"

The protection of copyright protects the originality of the expression of an idea and not the idea itself.

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.

 

 

 

Duration of intellectual property rights

The general term of the rights of exploitation of the work is the life of the author and 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 who died before 1987.

The work will become public domain after 70 years since the death of the author, counted from January 1 of the year following his death or declaration of death. However, if the author has died before December 7, 1987, the term will be 80 years. This rule applies only in relation to economic rights. The work may be exploited, but always respecting the moral rights of paternity and integrity.

If there has been co-authorship, the 70 years will begin to count from the death of the last author. In the case of collective works or works by an unknown author, the term of protection is 70 years from its disclosure. In the case of composite or derivative works, the terms are computed independently for the pre-existing work and for the composite or derivative work.

In posthumous works, their protection is fixed at 70 years from the creation of the work, unless the basic rule can be applied.

The related rights have other terms, most are 50 years since the interpretation computed from January 1 of the year following that of the performance, as well as if a recording of the performance is published or communicated. On the other hand, if the publication or public communication of the recording takes place in a phonogram, the rights expire at 70 years.

The Intellectual Property Law distinguishes between “photographic works” and “mere photographs”. The photographic works are those that present novelty in the sense that they are creative or have been created by a recognized author. It becomes public domain after 70 years of the author's death.
Mere photography is that which is not original in any of the two previous aspects, that is, that lacks any creative or intellectual vision. It is in the public domain 25 years after the author's death.

 

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