Intellectual property is basically personal and property rights which are attributed to the author of a work. Intellectual property is made up of two categories that of Industrial Property and Copyright. Industrial Property includes patents for inventions, trademarks and industrial designs and Copyright covers literary and artistic work such as novels, poems and paintings, photographs plus performing artists and broadcasters. The World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO) have set up an agreement between over 180 countries to develop and maintain the protection of rights of authors, as uniformly as possible, internationally.
Industrial Property and Copyrights are regulated by the Royal Legislative Decree 1/1996, of 12th April, which approved the revised text of the Copyright Act and the subsequent amendments under the Law 5/1998 of 6th March. This is incorporated in the Spanish Law Directive 96/9/CE, of 11th March 1996, of the European Council and Parliament regarding data base protection, Law 1 / 2000 of 7th January of Civil Procedure Law, the Law 19/2006 of June 5 where there is an extension of the means for enforcing intellectual property rights and where procedural regulations are established to ease the implementation of various community regulations. The Law 23/2006 of 7th July amends various articles.
The author or the owner of the Industrial Property or Copyright is the person who creates the work and he owns it simply because he created it. This authorship cannot be relinquished nor can it be transferred to anyone else either by selling it or by inheritance, which means that the status of author never changes. When a work is anonymous or is written under a pseudonym, the rights correspond to the individual or the legal representative who discloses it, while the actual author remains unknown. The rights of a work created by various people correspond to all of them.
Those who are protected by law and can therefore take the pertinent legal action where required are Spanish authors and those authors who belong to member states of the European Union; nationals from countries outside the European Union who are habitual residents in Spain; nationals from countries outside the European Union who are not habitual residents in Spain, when their work is published for the first time within Spanish Territory or within thirty days as from the date that they are published in another country; all authors of audiovisual work whatever their nationality, have the right to receive remuneration for the projection of their work; nationals from countries outside the European Union will be able to have the corresponding protection that they have under the international conventions and treaties to which Spain is a party, and failing that will be treated as Spanish authors would be treated in the respective country. In any case, the moral right of the author is recognised whatever his nationality.
Intellectual Property is around us all the time and is in almost everything that we do whether it is at home, at school or at work. They are creations of the human mind and can be found in books, computer programmes, inventions, musical compositions, theatrical works, sculptures, symbols, audiovisual works, paintings, plans, maps, designs, photographs or musical adaptations, translations and the transformations of works (for example of literary works into screenplays), which may have their own copyright.
There are two kinds of rights regarding Intellectual Property, personal or moral rights and Property rights. The personal rights are inherent to the author during his lifetime and pass on to his heirs when he dies. These rights include the recognition of the author of the work and the respect for the integrity of the work.
They prevent modifications and determine how the work is to be disclosed. They can also oppose changes that could damage the author’s reputation. Property rights refer to the economic side of the equation and the rights are related to the exploitation of the work and the exclusive rights or the rights of simple remuneration, otherwise known as compulsory licensing. The exclusive rights are where the author receives an amount for authorising the exploitation of his work in a certain way, whereas the simple remuneration is where the author receives an amount from the person who exploits the work.
The rights of exploitation by the author of a work whether written, painted or acted, last all his life and up to 70 years after his death, this includes work done under a pseudonym or anonymously. The rights for performing artists generally last for a period of 50 years after the year following the date of the actuation. The rights for photographic exploitation last normally for 25 years. The protection of rights is regulated by article 138 and the following ones of the mentioned Law.
The infringement of rights which are protected by the intellectual property law can be punished through civil, criminal or administrative action. In these actions and in urgent matters the cessation of activities and both economic and moral compensation, along with the destruction of illegal copies and materials used in their production can be requested.
Compensation rights are regulated by article 140 of the Law and it is understood that:
- Compensation to the owner for damages due to the infringement of rights will not only be to the value of the loss that has been suffered, but also to the loss of earnings due to the violation of his rights. The amount could include costs incurred in the investigation to obtain reasonable proof of the infraction.
- Compensation for damages can be chosen by the injured party, conforming to one of the following:
a) The negative economic consequences, including the loss of benefits by the injured party and the benefits that the offender has gained by illegal use. Where there is moral damage there will be compensation even when there is no proof of financial loss. The amount will be assessed by the circumstances of the offense, the severity of it and the extent of the unlawful dissemination of the work.
b) The amount that the injured party would have received as remuneration, if the offender had requested authorisation to use the rights in question.
- The time period for legal action to be taken to reclaim damages as referred to in this article, elapses after five years from the time that the action could have been taken.
Criminal action can lead to the infringement being punished with a prison sentence of between 6 months and 2 years or a fine from 6 to 24 months.
The Intellectual Property Registry is an administrative organisation which was created to protect Intellectual Property Rights. This registry forms part of the General State Administration and answers to the Ministry of Education, Culture and Sport. There are county registries which are run by the Autonomous Communities which deal with registration applications within the county.
It is not necessary to inscribe the work, but the aim of the registry is to protect intellectual property rights by proving the existence of the work and the author. There are some things that cannot be inscribed and these include ideas, procedures, operating methods or mathematical concepts as these are not protected by the Intellectual Property Law. Normally registration is effective as from the date of filing and all that needs to be presented are two copies of the official application form, a copy identifying the work and of course the fee. The application is presented at any Provincial General Intellectual Property Registry office and this is also where the payment is made. They can also be registered with the Spanish Consulates abroad. The registry is public and this means that anyone can have access to the data inscribed however the direct consultation of the works which are in the registry is reserved to those who have the rights on them.
The symbol © is the copyright symbol and anyone who has the exclusive right of exploitation of a work which is protected by the copyright law can place their name before the symbol, even if the work is not registered. The place and year of publication or production should also be stated.
The Intellectual Property registry aims to protect intellectual property rights and their inclusion in the registry. The Legal Deposit is where all national bibliograpical works are kept; the printers and producers are required to deposit a certain number of works with the Administration. The ISBN (International Standard Book Number) is a numeric code which is internationally used by editors on books and pamphlets to simplify trade relations between booksellers and publishers.