Spanish Copyright Law

IPR Intellectual Property Rights

The Spanish "copyright" is regulated in the Intellectual Property Law formulated in 1987. The copyright is for the lifetime of the author plus 70 years. It always assigns copyright to the author and he or she is not allowed to disclaim it.

Spanish copyright law governs copyright (Spanish: derechos de autor), that is the rights of authors of literary, artistic or scientific works, in Spain. It was first instituted by the Law of 10 January 1879, and, in its origins, was influenced by French copyright law and by the movement led by Émile Zola for the international protection of literary and artistic works.

The principal dispositions are contained in Book One of the Intellectual Property Law of 11 November

The concept of a "protected work" (objeto de propiedad intelectual) covers "all original literary, artistic or scientific creations expressed in any medium or support".

Works are protected by "the sole fact of their creation", regardless of the nationality of the author or the place of publication. Corporate persons can only be authors of collective work.

Collections of works (e.g. anthologies) and other collections of data which, by reason of the selection or arrangement of the contents, constitute intellectual creations are also protected.

The following official works are not covered by copyright protection:

Laws and reglementary dispositions (disposiciones legales o reglamentarias), either approved or awaiting approval (y sus correspondientes proyectos)

Court judgements (resoluciones de los órganos jurisdiccionales)

Acts, agreements, deliberations and rulings of public bodies (actos, acuerdos, deliberaciones y dictámenes de los organismos públicos)

Official translations of any of the above (las traducciones oficiales de todos los textos anteriores)

Images are only concerned by this exception to copyright protection when they form an integral part of any of the above, for example the diagrams in a patent: otherwise the copyright is held by the author of the image (e.g. the photographer).

Duration of the rights of exploitation

In general, copyright protection in Spain lasts for the life of the author plus seventy years. Collective works are protected for seventy years following publication, as are pseudonymous and anonymous works unless the identity of the author becomes known. It always assigns copyright to the author and he or she is not allowed to disclaim it.
Posthumous works are protected for seventy years following publication provided they are published within seventy years of the death of the author. All of these time periods are calculated starting from 1st January following death or publication.

Copyright management societies

As in other countries, there are a number of societies which collectively manage the licensing of different types of work and the collection of royalties on behalf of copyright holders.

Moral rights (Derecho moral)

The moral rights of the author go beyond the minimum requirements of the Berne Convention.

the right to decide whether the work should be published and in what form;
the right to publish the work under his/her real name, pseudonymously or anonymously;
the right to be identified as the author of the work
the right to insist on the respect of the integrity of the work and to prevent any distortion, modification, alteration or derogatory action in relation to the work which would be prejudicial to his/her legitimate interests or reputation; the right to modify the work in the respect of the rights of third parties and of the protection of "Works of Cultural Interest" (Bienes de Interés Cultural)
the right to withdraw the work from commercial exploitation, with compensation to the holders of the rights of exploitation
the right to access to the single copy or a rare copy of the work in order to exercise any of the other rights. This right does not include the right to displace the work, and must be exercised with the minimum of inconvenience to the legal owner of the copy and with compensation for any prejudice.

The right to the respect of the integrity of the work is limited in the case of computer programs, where the author cannot object to the production of future versions or derived works except with a specific agreement to that effect (art. 98). The author of a work cannot renounce his/her moral rights, nor transfer them to another person during his/her lifetime.

Duration of moral rights

The rights to be identified as author and to the respect of the integrity of the work are perpetual, and may be exercised after the author's death by his/her executors, heirs or (by default) by the State.. The rights to modify the work and to withdraw the work from commercial exploitation may only be exercised by the author during his/her lifetime.

Computer programs

The work is only protected to the extent that it is the author's own intellectual creation, and the ideas and principles underlying any of the elements of the program, including those underlying its interfaces, are not protected by copyright (under certain circumstances, they may be protectable by patent law). An employer is assumed to have an exclusive grant of the rights of exploitation of computer programs written by employees in the course of their work.

Related rights (Otros derechos de propiedad intelectual)

A number of "related" rights are detailed in Book Two of the Intellectual Property Law: these are similar in form to the rights of Book One, but may not directly concern the author of the work. They are independent of the rights of the author of the work: this is especially important for photographs and audiovisual works, which are automatically protected by related rights regardless of their copyright status but which may also enjoy the greater protection provided by copyright. The limitations to copyright protection also apply to these related rights.

Rights of performers

A performer is any person who "presents, sings, reads, recites, interprets or exercutes a work in any form," including the stage director and the conductor of an orchestra. Performers have the exclusive rights to authorize:

the recording and/or reproduction of the performance;
the communication of the performance to the public;
the distribution of recordings or reproductions of the performance.

These rights last for fifty years from either the date of the performance or the date of publication of a recording of the performance, whichever is the later. The period of protection runs to 31 December of the relevant year. Performers also have the moral right to have their name associated with their performances, and to object to distortion or mutilation of their performances: these moral rights last for the life of the performaer and for twenty years after his or her death.

Rights of producers of sound recordings

The person who makes a sound recording has the exclusive right to authorize the reproduction, the communication to the public and the distribution of that recording.. These rights last for fifty years after the date of the recording or the date of publication, whichever is the later, and run to 31 December of the relevant year. Corporate persons can be the holders of these rights if the recording was first made under their "initiative and responsibility".

Rights of producers of audiovisual recordings

An "audiovisual recording" (grabación audiovisual) is any recording of a scene or sequence of images, with or without sound, whether or not it counts as an "audiovisual work" (obra audiovisual) (art. 120): an example would be the images from a security camera. The person who takes the "initiative and responsibility" to make such a recording has the exclusive right to authorize its reproduction, communication to the public and distribution (arts. 121–123). These rights extend to photographs taken during the production of an audiovisual recording (art. 124), and last for fifty years after the production of the recording or its publication, whichever is the later, running to 31 December of the relevant year (art. 125). They are independent of the copyright in the audiovisual work. Corporate persons can be the holders of these rights.

Rights of broadcasting organisations

Broadcasting organisations have the exclusive right to authorise:

the recording of their broadcasts in any form;
the reproduction of their broadcasts in any form;
the retransmission of their broadcasts;
the communication of the broadcasts to a paying public.
the distribution of recordings of their broadcasts.
These rights last for fifty years from the date of broadcast, running to 31 December of the relevant year.

Database rights

Database rights specifically protect the "substantial investment" in the form of "finance, time, energy or effort", assessed "either qualitatively or quantitatively", which was necessary to create the database.

The maker of the database, who may be a corporate person, can prevent a user from extracting "all or a substantial portion, evaluated qualitatively or quantitatively," of the contents of the database, either through a single access or through multiple accesses.

The user may not do anything which "conflicts with the normal exploitation of the database" or which "unreasonably prejudices the legitimate interests of the maker of the database".

There are (limited) exceptions for the private use of non-electronic databases, for teaching and research and for public security and for administrative or judicial procedures.

Database rights last for fifteen years from the completion of the database or from its publication, whichever is the later, although "substantial changes" to the database start a new period of protection: the protection runs to 31 December of the relevant year

Database rights are independent of any copyright which might exist in the database or its contents.

Right to the private use of private property

The law explicitly allows the right to make private copies of copyrighted work without the author's consent for published
audiovisual works if the copy is not for commercial use.

Some lawyers contend that the current legislation allows file sharing (as with p2p networks) as this is not for profit and is for private use. Additionally, the Penal Code explicitly requires the intention of commercial profit in order to commit a crime against the Intellectual Property.

Right to receive and to impart information

Lectures, addresses, judicial proceedings and other works of the same nature may be reproduced or communicated for the sole purpose of reporting on current events.

The proceedings of parliament and of public corporations may be reproduced or communicated for any purpose.

Works of news reporting may be reproduced in other news media, with identification of the author and remuneration..

Any work which can be seen or heard may be reproduced, distributed and publicly communicated for the purpose of, and only to the extent necessary for, providing information thereof in the context of reporting on current events.

Use for education and research

Museums, libraries and similar public or cultural institutions may make reproductions of works for the purposes of research.

"Fragments" of written, sound or audiovisual works or "isolated" plastic, photographic, figurative or analogous works may be included in another original work for the purposes of teaching or research (fines docentes o de investigación) if the following conditions are met:

the source work has been published;
it is included for citation or for analysis, commentary or critical judgement;
it is included with a citation of the source and the name of the author;
it is only included to the extent justified by the purposes of teaching or research.

Press reviews and collections are expressly covered by the provisions of article 32.

Public policy limitations

Works may be reproduced for judicial and administrative actions.

Musical works may be performed at at official public ceremonies and religious services, if these are free of charge to the public and if the musicians are not specifically paid for performing the protected works.

Transcription of works may be made into Braille or another medium specific for the use of the blind, provided that the use of the copies is non-lucrative.

The executors or heirs of a deceased author can be forced to publish the works which remained unpublished during the author's lifetime if their refusal to do so is judged contrary to article 44 of the Constitution (art. 40, Intellectual Property Law).

Other limitations

Works which are permanently situated in parks, streets, squares or public routes may be reproduced in paintings, drawings, photographs and by audiovisual means.

Parodies of a work are permitted without the consent of the original author
provided that there is no risk of confusion with the original work and that no damage is caused (ni se infiera un daño) to the original work or to its author.

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