SPAIN Trends and Developments Contributed by: Mario Sol Muntañola, Sol Muntañola Abogados
The Challenges of Intellectual Property in the Modern Environment The intangible assets addressed by intellectual prop- erty – in its broadest sense – can be divided into three main groups. • The first, closely linked to the world of culture, encompasses those objects in which form takes precedence (works of authorship, related rights and design). The last one, design, is located between this group and the third. Perhaps we should also place the right to one’s own image (publicity right) in this group. • The second group, closer to the commercial sphere, consists of creations that serve to distin- guish, in all their forms (trade marks, trade names, domain names, and appellations of origin). • And the third group, closer to industry, would con- sist of those inventions where utility, application or practical implementation take precedence (patents, designs, plant varieties, and topographies). In this article, the authors provide a brief overview to contextualise the treatment received by each of these areas of intellectual property in Spain. Authorship The ability to express oneself is a quality of every human being. When this capacity takes original form, whatever the language used, a work is born: literary, musical, photographic, pictorial, computer-generated, audiovisual... The person who created it is an author, and the law recognises him or her as having a spe- cific status, limited in time and involving economic and moral rights. In Spain, we collectively refer to copyright and related rights as “intellectual property”, while we group the other categories under the heading “industrial proper- ty” (designs, trademarks, patents, topographies, etc). This is a historical legacy derived from the Italian tradi- tion of treating signs and inventions as industrial prop- erty, while copyright – linked to the term “literary or intellectual property” – dates back to the Royal Order of 1763, considered the first legislation that sought to protect intellectual property in Spain. The 1879 Act was known as the “Intellectual Property Act”, a name it still retains today.
The Spanish Intellectual Property Law is clearly inspired by the continental model, with economic rights and moral rights of the author, the latter closely linked to the fundamental rights of personality. The current Spanish legislation on copyright is the Revised Text of the Intellectual Property Law 1/1996 of 12 April, which regulates original creations. Authorship arises upon creation; no registration is required. The Law dis- tinguishes between moral rights and economic rights, recognising four main rights in favour of the author: reproduction, distribution, public communication and adaptation. Each of these rights is exercised through multiple forms of exploitation. These rights may be assigned or licensed by contract but never sold. They remain permanently linked to their authors. Its term of protection is, generally, the life of the author plus 70 years. The legislation establishes specific rules for collabo- rative, collective, anonymous and pseudonymous works. It also recognises related rights for artists, per- formers, producers, and broadcasting organisations. In addition, it protects computer programs, databases and photographs. The Act provides for limitations on copyright in the public interest. These include quo- tation, educational use, private copying, or parody, among others. Collective rights are regulated through authorised collective management organisations that manage those rights that rights-holders cannot man- age themselves or that, by law, prevent them from managing, such as private copying, which generates financial compensation for rights-holders. Finally, the Law establishes defence mechanisms against infringements and seeks to balance the protection of authors with access to culture and other fundamental freedoms. In addition to the transposition of legislation, the Court of Justice of the European Union (CJEU) has been working intensively to unify and harmonise the basic elements and concepts of the field, and inter- national diplomacy (starting with the Berne Conven- tion of 1886) has been bringing order in this field; as has the Universal Copyright Convention, administered by UNESCO, which Spain ratified in 1955 (a treaty of great historical importance for countries not party to the Berne Convention). Similarly, Spain is also a party to the 1994 Agreement on Trade-Related Aspects
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