SPAIN Law and Practice Contributed by: Mario Sol Muntañola, Javier Márquez Martín, Ferran Llaquet Ballarín and Ana Padial, Sol Muntañola Abogados
It will be considered a work of joint authorship (or “ obra en colaboración ”) where multiple authors create an inseparable work together. In those cases, rights are held by all the authors that have participated in the creation of said work, and its disclosure and modifi- cation require the consent of all co-authors. IP rights regarding this type of work shall be determined by them together. Collective works are those created through separate contributions from multiple authors, who assign their rights to the natural or legal person that initiates and co-ordinates the work. Regarding works created by employees, the outcome depends on the specific circumstances. It will depend on factors such as the extent to which working time and company resources have been used. As a general rule, authorship remains with the employee; however, economic rights may be transferred to the employ- er, depending on the terms of the contract and the employment context. As for contractors, the LPI does not foresee work-for- hire. Simply put, the creator-author will retain its eco- nomic rights unless reassigned in writing. However, under Spanish law, moral rights cannot be assigned, and the author will retain them even if he/she decides to waive them. 3.4 Scope of Rights and Moral Rights In Spain, copyright owners have the exclusive right to authorise or prohibit all forms of exploitation, includ- ing reproduction, distribution, public communication, making available online and transformation. These rights may be assigned or licensed. The Spanish Intellectual Property Act recognises strong moral rights for authors. These rights are inalienable and cannot be waived or assigned, and they remain with the author during their lifetime. After death, they may be exercised by the author’s heirs or designated persons, subject to certain limitations. Their purpose is to protect the author’s reputation, the integrity of the work, and the author’s Will. However, the heirs do not, strictly speaking, become the author or acquire ownership of these rights in the same sense as the author held them during life.
These moral rights are: • the right of disclosure (that means the right to decide if the work has to be disclosed and in what form); • the right of attribution (the author has the right to decide if he/she wants to disclose the work under his/her name, under a pseudonym or anonymous- ly); • the right to the acknowledgement of their name; • the right of integrity (object to any modification that may impact its reputation); • the right to modify the work (while respecting the rights acquired by third parties and requirements for the protection of cultural heritage); and • the right to withdraw the work from the market due to a change in its convictions (after paying compensation for damages to the holders of the economic rights). 3.5 Term of Protection and Termination Copyright protection (specifically, the economic rights) lasts for the life of the author plus 70 years. Once that period has elapsed the work enters the public domain. 3.6 Limitations, Exceptions and Defences Spanish legislation provides specific statutory excep- tions to IP rights, including: • temporary and private copy; • public safety and official proceedings; • quotations, reviews, and illustrations for educa- tional or scientific research purposes; • teaching and educational uses; • news reporting; • parody or pastiche; and • use by libraries and archives exceptions. Courts assess these exceptions on a case-by-case basis, interpreting them narrowly in light of the three- step test set out in the Berne Convention and incorpo- rated into Spanish law. This means that the exception must be clearly defined and specific, must not inter- fere with the normal exploitation of the work, and must not cause disproportionate harm to the rights holder.
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