Intellectual Property. Must-have guide in 2021

Concepts such as intellectual property, author’s rights, copyright or industrial property are terms commonly and erroneously understood to be the same. While it is true that there is a connection between them, the reality is that they are concepts that vary from one country to another. This post aims to provide a brief guide on how intellectual property works in Spain. As well we discuss what are its main characteristics and the legal routes that the system offers us to defend ourselves against possible infringements.  Ways that Lexidy can put into practice for you.

Areas we will cover:

1. Intellectual Property, Industrial Property and Copyright
2. Intellectual property in Spain. Concept. How long does it last? What does it imply?
3. Moral Rights on Intellectual property
4. Economic rights on intellectual property
5. Copyright infringement 
6. What tools are available to protect intellectual property?
7. Legal assistance for protecting intellectual property

Intellectual Property, Industrial Property and Copyright

Before going into details, it is important to point out that there are two main systems. They approach the protection of these type of rights in different ways. The Anglo-Saxon system (comprising the USA and the countries that make up the Commonwealth) and the continental system (comprising the remaining European countries, including Spain).

In the past, the term copyright was used generically. It was described to encompass both industrial property and intellectual property under the same legal framework. Likewise, another of the main differences between the Spanish and European systems is their non-recognition of the moral rights of authors and creators.

In comparison, the continental system establishes a differentiation between intellectual property and industrial property rights. It recognizes the existence of the aforementioned moral rights.  In this system, Industrial and Intellectual Property are regulated in different normative and their registration is entrusted to different bodies.

A clear example is Spain, where the registration of patents and utility models is carried out at the Patent and Trademark Office. The recognition of copyrights is entrusted to the Intellectual Property Registry.

Intellectual property in Spain. Concept. What does it imply?

Also known as author’s rights, it has its main legal and juridical reference in the Royal Legislative Decree 1/1996, of April 12, 1996, which approves the revised text of the Intellectual Property Law (hereinafter, IPL). Article 10 sets that we are dealing with the legal discipline in charge of the protection of original creations and “of the spirit”. It can be literary, artistic or scientific and be expressed in both tangible and intangible formats.

Some examples of these creations are books, poems, films, plays, movies or computer games, among many other options. The announced right is derived from the mere creation of the work. The registration of the same (voluntary) must be made before the Intellectual Property Registry.

How long does it last?

As for the duration of these rights, the IPL establishes a minimum term. Time coincides with the life of the author and up to 70 years after the creator’s death (article 15, IPL).

On the other hand, the Royal Decree distinguishes between two subtypes of intellectual property rights: moral rights and economic rights.

Moral Rights on Intellectual property

These seek to protect the identity and reputation of the author of the work and their main characteristic lies in their unavailability, in the impossibility of their transfer, seizure or alienation. Some examples would be:

• Paternity Right. The right of the author to recognize himself or herself as the legitimate author of the work of creation.
• Disclosure right. The capacity of the author to decide to disclose work or not.
• Modification Right. The right of the author to modify the work created by himself, always respecting the rights granted to third parties.

Economic rights on intellectual property

These basically include those rights that allow the author of the work to obtain some kind of economic return as a result of authorizing the use and reproduction of the work. In turn, within this category, two authorities distinguished two subtypes: exclusive rights (those that allow the author to authorize or prohibit the use or reproduction of his work) and simple remuneration rights (the most relevant: they entitle the author to allow the use of his work upon remuneration). Six types:

• Reproduction Right. Implies the fixation of the work in tangible and reproducible support, which allows its reproduction with the prior authorization of its creator.
• Distribution Right. This involves making the work available to the public either in the form of sale, rental or lending.
• Public Communication Right. Of strong presence in the audiovisual sector (television or radio). It covers the right by means of which a large number of persons may have access to work without proceeding to its sale or lending.
• Right of transformation. It is the right of the author of a work to authorize, against payment, or prohibit the modification of his work. (e.g. translations)
• Collection Right. That which allows the author to publish his work and its corresponding modifications in a collection.
• Compensatory Right. This refers to those rights that allow the author to obtain remuneration as compensation for the profits lost when the person authorized to copy his work reserves them for his private use.

Copyright infringement 

As a conclusion to this post, we will analyse the different ways in which the Spanish legal system makes available to creators and artists the enforcement of their rights. An infringement of intellectual property rights occurs when original works and creations are used, reproduced, or distributed without the proper consent of their owners, generating economic and cultural damage both to their owners and to society as a whole.

The current legislation provides for actions in both criminal and civil proceedings. It installs when the intellectual property of the creator received the act of change by the actions of third parties.

Crimes against intellectual property are typified in articles 270 to 272 of the current Penal Code and it establishes penalties which end in prison sentences of 6 months to 4 years and a fine of 12 to 24 months for all those who infringe intellectual property rights to the detriment of their creators with the intention of obtaining the direct or indirect benefit. These must be denounced by means of a lawsuit following the ordinary channels for this jurisdictional order.

Special attention should be paid to article 271 which registers the aggravated type of this crime, provided that, if it is demonstrated that the consequences derived from the same are of important economic transcendence and the facts are of special gravity, among other requirements. In these cases, the penalties increase from 2 to 6 years of imprisonment and a fine of 18 to 36 months plus disqualification if the crime had been committed taking advantage of a special position.

What tools are available to protect intellectual property?

As regards civil liabilities, it is the Criminal Code itself that refers creators to the IPL.

The aforementioned legislation, in its articles 139 and 140, empowers creators, artists and authors of original works to, firstly, request before the judge the so-called action of cessation with the aim of interrupting the infringer’s activities and, secondly, to file the corresponding claim for damages, leaving the criteria for fixing the amount of such damages to be decided by the injured party. These criteria are basically two:

• To take into account the negative economic consequences, establishing a weighting between the money foregone by the creator/author and the money obtained by the infringer.
• Or the amount of money that the author would have received if the infringer had requested the corresponding authorization and had proceeded to pay it, may be taken as a reference.        

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