SPAIN Law and Practice Contributed by: Rafael Mateu de Ros, Patricia Fernández Lorenzo, Javier Fernandez-Lasquetty and Luis Rodríguez-Ramos, Ramón y Cajal Abogados
butions of different authors whose personal contribu - tion is based on a single and autonomous creation, for which it has been conceived without it being possible to attribute separately to any of them a right over the whole of the work. Unless otherwise agreed, the rights in the collective work shall belong to the person who publishes and disseminates it under their name. This allows legal entities to hold the copyright on the work. A collaborative work is the unitary result of the col - laboration of several authors – although the different contributions can be identified and differentiated so that, unless otherwise agreed or with prejudice to the common exploitation, each author may separately exploit their contribution. The exercise of the rights in collaborative works must be made by common agree - ment, and the participation of each author shall be in the agreed proportion. The rules of co-ownership shall apply subsidiarily. 3. Protection Against Plagiarism 3.1 Legal Consequences of Copyright Infringement Copyright infringement may be considered a violation of civil and criminal law. The Spanish Copyright Law establishes rules for the cessation of the infringing activity, including the removal of infringing products or services and of the means used for the infringement, including their destruction. In addition, the damages caused must be compensated, using one of the following criteria: profit obtained by the infringer, profit lost by the right- holder, or theoretical royalty that the infringer would have had to pay were they an authorised licensee. In addition, moral damages may be claimed, depending on the circumstances and gravity of the infringement. The criminal code establishes penalties of between two and four years for the infringement of rights over a work, including plagiarism. When there are special cir - cumstances, such as the seriousness of the infringe - ment or its commission by criminal organisations, the penalty may be increased to six years. In any of the above-mentioned cases, fines are also imposed on
the infringer. The civil liability derived from the offence is governed by the rules of the IP Law indicated earlier. 3.2 Registering Artwork The Copyright Registry allows the registration of any work protected by copyright. It is a public office, under the Ministry of Culture, with offices in the different regions of Spain. In the case of works of art, the author must identify themselves and provide a photographic copy of the work to be protected. The registration can be done in person at any of the territorial offices of the Copyright Registry or the work can be registered online. It is a simple and inexpensive procedure for the author. 3.3 Resale Right The authors of works of art of all kinds, as well as their heirs, have a recognised right of participation in the price of the resale of their works. The right applies to all resales involving professionals such as sales or auction rooms, art galleries, art dealers, and – in gen - eral – anyone engaged in intermediary operations in this market, either in person or online. The amount of the author’s participation is between 4% for the first EUR50,000, up to 0.25% for sales prices in excess of EUR500,000. The maximum amount may not exceed EUR12,500. Exceptions are made for the value of the resale (less than EUR800) and for time (ie, resale made by a gallery owner who has purchased the work within a period of less than three years, for an amount of less than EUR10,000). The right is extinguished 70 years post mortem aucto - ris and must be exercised through collecting societies. 3.4 Using Copyrighted Images In principle, it is the author who must authorise the use of images. If the owner of the work has this right assigned by the author, the owner could be the one that gives the authorisation. However, the author may have entrusted the management to a collective man - agement entity. In Spain, it is VEGAP ( Visual Entidad de Gestión de Artistas Plásticos ) who does it – glob - ally – in collaboration with other collecting societies in other countries, in the same way that it manages the rights of foreign authors in Spain.
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