A Guide to Intellectual Property in Spain

Concepts such as intellectual property, copyright, copyright or industrial property are terms usually and erroneously understood as. While it is true that there is a relationship between them, the reality is that they are concepts that vary. This article aims to elaborate a brief guide about how intellectual property is articulated in Spain, what are its main characteristics and the ways that the legal system puts at our disposal to defend ourselves against possible infringements. Ways LawyersBay can put into practice for you

Intellectual Property, Industrial Property and Copyright

Before going into details, it is important to note that there are two major systems that visualize the protection of this type of rights differently: the Anglo-Saxon (integrated by the USA and the countries that make up the Commonwealth) and the continental (integrated by the remaining European countries, Spain among them).

In the first, the term copyright is used generically and is used to encompass both industrial property and intellectual property under the same regulatory umbrella. In the same way, another of the main differences with the Spanish and European system consists in its non-recognition of the moral rights of authors and creators.

In contrast, the continental system establishes a differentiation between copyright and industrial property rights, in addition to recognizing the existence of the aforementioned moral rights. In this system, Industrial and Intellectual Property are regulated in different normative texts and their registration is entrusted to different bodies. A clear example is Spanish, where the registration of patents and utility models is carried out in the Trademark Patent Office and the recognition of copyright is entrusted to the Intellectual Property Registry.

Intellectual property in Spain. Concept. How long does it last? What does it involve?

Also known as copyright, it has its main legal and legal reference in Royal Legislative Decree 1/1996, of April 12, which approves the revised text of the Intellectual Property Law (hereinafter, LPI). Article 10 establishes that we are facing that legal discipline responsible for the protection of original creations and “of the spirit”, which can be literary, artistic or scientific and be expressed in both tangible and intangible supports.

Some examples of these creations are elements such as books, poems, films, plays, films or computer games, among many other options. This right arises with the mere creation of the work and the registration of the same (voluntary) must be made before the Intellectual Property Registry. As for the duration of these, the LPI establishes a minimum period that coincides with the life of the author and up to 70 years after the death of the author (article 15).

On the other hand, the current Consolidated Text distinguishes between two subtypes of well-differentiated rights in the field of intellectual property: moral rights on the one hand and economic rights on the other.

• Moral rights. They seek to protect the identity and reputation of the author of the work and their main characteristic lies in its inalienability, in the impossibility of its assignment, seizure or alienation. Examples would be the right of paternity (right of the author to be recognized as the legitimate author of the work or creation), the right of disclosure (ability of the author to decide whether the work should be disclosed or not) or the right of modification (right that assists the author to modify the work created by himself, always respecting the rights granted to third parties) among others

• Economic rights. They mainly include those that allow the author of the work to obtain some type of economic return as a result of authorizing the use and reproduction of the same. In turn, within this category two subtypes are distinguished: exclusive rights (those that allow the author to authorize or prohibit the use or reproduction of his work) and simple remuneration (the most relevant: they empower the author to allow the use of his work after remuneration). Five types:

• Reproduction. It necessarily implies the fixation of the work on a tangible and reproducible medium, which allows its reproduction with the prior authorization of its creator.
• Distribution. It involves the making available of the work to the public either in the form of sale, rental or loan.
• Public communication. Strong presence in the audiovisual sector (television or radio). It covers the right where where where a large number of people may have access to a work without its sale or loan.
• Right of transformation. It is the one who assists the author of a work to authorize prior payment or prohibit the modification of his work. (e.g. translations)
• Right of collection. The one that allows the author to publish his work and its corresponding modifications in a collection

The set of moral rights has a duration that covers the entire life of the author (article 15 LPI) and extends 70 years after the death of the author.

• Countervailing duties. They refer to those rights that allow the author to obtain remuneration as compensation for the benefits left to be obtained when the authorized to copy his work reserves them for private use.

What is an infringement of an intellectual property right? What tools are available to protect our creative interests?

An infringement in the field of intellectual property occurs when original works and creations are used, reproduced or distributed without the adequate consent of their owners, generating economic and cultural damage both to their owners and to society as a whole.

The current regulations provide for actions in both criminal and civil and criminal proceedings when the intellectual property of the creator is clouded by the actions of a third party.

Crimes against intellectual property are typified in articles 270 to 272 of the current Criminal Code and establish penalties that amount to prison sentences of 6 months to 4 years and a fine of 12 to twenty-four months to all those who infringe intellectual property rights to the detriment of their creators and with the intention of obtaining direct or indirect benefit. These must be denounced via lawsuit according to the ordinary channels for this jurisdictional order.

Article 271, which records the aggravated type of this crime, deserves special attention, provided that it is demonstrated that the consequences derived from it are of important economic significance and the facts are of special gravity, among other requirements. In these cases, the penalties increase from 2 to 6 years in prison and a fine of 18 to 36 months plus disqualification if the crime had been committed taking advantage of a special charge.

With regard to the civil liabilities derived, it is the Criminal Code itself that refers the creators to the LPI.

Articles 139 and 140 of the aforementioned legislation empower creators, artists and authors of original works to, first, apply to the court for the so-called injunction with the aim of interrupting the activities of the infringer and, secondly, to bring the corresponding claim for damages, leaving the criteria for determining the amount of the damaged party to the decision of the injured party. These criteria are basically two:

• Attend to the negative economic consequences, establishing a balance between the money left to be received by the creator/author and that which has been obtained by the infringer
• Or the amount of money that the perpetrator would have received if the offender had requested the corresponding authorization and had proceeded to pay it may be taken as a reference.

Finally, from LawyersBay we hope that this post has contributed to solving your doubts about how intellectual property works in Spain and how its protection is exercised work with which, we emphasize, the lawyers of LawyersBay will be happy to help you.