SPAIN Law and Practice Contributed by: Rafael Mateu de Ros, Patricia Fernández Lorenzo, Javier Fernandez-Lasquetty and Luis Rodríguez-Ramos, Ramón y Cajal Abogados
Ramón y Cajal Abogados Calle de Almagro 16‒18 28010 Madrid Spain Tel: +34 91 576 19 00 Email: ramonycajalabogados@ramoncajal.com Web: www.ramonycajalabogados.com
1. Art Law Framework 1.1 Relevant Authorities and Legislation Authorities According to the distribution of powers established in the Spanish Constitution, the Ministry of Culture plays a central role in the protection, promotion and regu - lation of Spain’s cultural heritage, and holds exclu - sive competence in the export and import of cultural goods. It is involved in enforcing laws related to art and cultural property, managing museums, and sup - porting the visual arts. The 17 autonomous communities (regions), on the other hand, have competence in cultural policies and the procedures for declaring goods located in their respective territories as part of the protected catego - ries of historical or artistic heritage. Thus, in the event that the Ministry of Culture denies an export permit for an artwork, it is the competent autonomous commu - nity that must initiate the procedure to include the item in an inventory of protected goods; this can generate some conflicts. Regulations With regard to regulations, the Cultural Heritage Pro - tection Law (Law 16/1985) and its implementing regu - lations (Royal Decree 111/1986) define and protect Spain’s historical and cultural heritage, including art objects, museums, and collections. The law address - es issues such as the export of artworks, the protec - tion of national treasures, and the role of public and private institutions in preserving cultural heritage. In addition, there are 17 regional heritage laws in each of the 17 autonomous communities – each with distinct
characteristics and applicable within their respective territories.
2. Rights to Artworks 2.1 Artists’ Rights Over Their Art
The author of an artwork is entitled – by the mere fact of creation and as the author of other works – to the rights established in the Spanish Copyright Law, which are: • economic rights – reproduction, distribution, public communication and transformation; and • moral rights – acknowledgment of authorship, pub - lication of the work, respect for the integrity of the work and withdrawal from the market. Moral rights are unwaivable and non-transferable and may be exercised by the artist’s heirs upon the artist’s death. Specifically, the authors of works such as sculpture, painting and photography have the resale right ( droit de suite ) and the right to fair compensation for private copying. 2.2 Copyright in Collaborative Artworks The Spanish Copyright Law regulates collective works and collaborative works. A collective work is a work created by the initiative and under the co-ordination of a natural person or legal entity that publishes and disseminates it under its name and is constituted by the gathering of contri -
156 CHAMBERS.COM
Powered by FlippingBook