INTELLECTUAL PROPERTY

FAQ on intellectual property: Generalities

La intellectual property refers to works that are the result of human intellect. It is a form of property that has the creator of an artistic, scientific or literary work or that which belongs to the inventor for the inventions that he has created and which includes:

Copyright Moral and exploitation rights of creators of artistic, scientific or literary works.
Industrial property rights

A set of rights that inventors or creators of products and procedures (patents and utility models) have, distinctive signs (trademarks and trade names), external appearance of products (industrial designs) and schemes of integrated circuits (semiconductor topographies) to exploit them exclusively.

The owner of the industrial property rights of a creation is the person who legally protects it through a patent, trademark, etc.

Therefore, the industrial property rights, granted by the company,SPTO, allow the person who decides who and how to use them.

In the Spanish legal framework the Intellectual Property Law (LPI) It refers exclusively to copyright, while industrial property is protected by patent laws, trademarks, etc.

The creations must be protected legally, before its dissemination, by means of the title of corresponding industrial property (patent, trademark, industrial design, etc.).

As it is collected in Cercaterm, the Copyright They are the moral rights and rights of exploitation that the author of a literary, artistic or scientific work has:

Moral rights Author's rights, inalienable and inalienable, contemplate the right of the author to be recognized as such as other guarantees such as the right of the author to respect his work and can not be modified without his authorization
Exploitation rights Rights that, as available, are negotiable and allow the author to influence the publication, distribution or exploitation of his work, as well as to certify copyright. Mainly the rights of reproduction, distribution, public communication or creation of derivative works, acts of exploitation that can only be done with the consent of the corresponding owner or respecting the exceptions established by law.

In addition to moral and exploitation rights, there are other intellectual property rights (known as related rights, neighbors or connected), which protect the effort and the creative, technical and organizational contribution of the people or institutions that put the works to the public, participate in the cultural industries and in their relation with the public.

These rights affect artists or performers, producers of phonograms and audiovisual recordings, broadcasters, creators of mere photographs and certain publishing productions (unpublished works in the public domain and others not protected by the LPI).

The 10, 11 and 12 articles of the LPI define the works subject to copyright. In general, the law protects the vast majority of documents that we usually use in an academic and educational environment.

The examples that enumerate the law are not exhaustive, that is to say, although a specific document type does not appear in the list that is proposed does not imply that it is outside the protection.

According to theart. 13 of the LPI, They are not copyrighted:

  • the legal or regulatory provisions and their corresponding projects
  • the resolutions of the jurisdictional bodies and the acts, agreements, deliberations and opinions of the public bodies
  • The official translations of all the previous texts are not copyrighted.

As detailed in Laws, acts, rulings and intellectual property (Jorge Rodríguez-Zapata Pérez, p. 76), "eThe acts that conclude the activity of the different public powers are the laws, for the legislative powers, the regulations and acts for executive powers, and judgments and decisions for resolutions of the judiciary. "

Any of these documents may be reproduced, distributed, publicly communicated or modified freely without prior authorization by the rights holder. It should be noted, however, that this is the case only if you have the original official texts or sources, not the texts extracted from other publications or databases.

The works of public domain These are those whose exploitation rights have been extinguished and which, therefore, can be used freely by any person provided that the authorship and the integrity of the work are respected.

All of them rights reserved to the authors (reproduction, distribution, public communication, ...) are still reserved in the Internet environment, despite the ease with which the information can be copied or disseminated.

Therefore, texts, images, photographs, design, musical sequences, videos or audiovisuals, ... from any website, are protected by legislation.

Although free content can be accessed, this does not authorize the appropriation of the information contained in the website at all, much less to use it contrary to the legislation.

Intellectual property rights are territorial in nature, that is, each country regulates them with their laws and only guarantees their protection within their own borders.

Spanish authors and national authors of the EU
  • As set forth in the199 article of the LPI, the Spanish legislation protects the Spanish authors as well as the national authors of other countries member states of the European Union.
  • Therefore, when Spanish authors want to use works by foreign authors who are members of the European Union, Spanish legislation must be applied (although the legislation of the original country is more or less permissive).
Non-EU national authors, with the same rights as the Spaniards

They enjoy the same rights as Spanish authors:

  • The national authors of third countries (not members of the EU) with habitual residence in Spain
  • The national authors of third countries (not members of the EU) who do not have their habitual residence in Spain, in relation to their works published for the first time in Spanish territory or during the 30 days after they have been published in a other country However, the Government may restrict the scope of this principle in the case of foreigners who are nationals of states that do not sufficiently protect the works of Spanish authors in analogous cases.
Other non-national authors of the EU
  • The national authors of third countries (not members of the EU) will enjoy the protection that corresponds to them international agreements and treaties in which Spain is a party and, failing that, will be equated with the Spanish authors when they are also nationals in the respective country.
  • The works whose country of origin is a third country according to it Berne Convention and whose author is not a national of a member state of the EU, have the same term of protection as that granted in the country of origin of the work (without, in any case, being able to exceed the term foreseen in the LPI).
In all cases
  • Regardless of their nationality, it is always recognized moral right of the authors.
  • All authors of audiovisual works, regardless of their nationality, have the right to receive a proportional remuneration for the projection of their works in the terms of the "90 article, sections 3 and 4. However, in the case of nationals of states that do not guarantee a right equivalent to Spanish authors, the Government can determine that the amounts paid by the exhibitors to the management entities for this concept are destined for the purposes of cultural interest that is 'set by regulation.

Raw data is not copyrighted and, therefore, not subject to intellectual property.

However, it must be kept in mind that it is the databases where these appear. As set forth in the133 article of the LPI and the Law 5 / 1998 of 6 of March, of incorporation into the Spanish Law of the 96 / 9 / CE Directive, of the European Parliament and of the Council, of 11 of March of 1996, on the legal protection of the databases:

  • The "sui generis" right on a database protects the substantial investment, qualitatively or quantitatively evaluated, made by its manufacturer either through financial means, investment of time, effort, energy or others of a similar nature, for the obtaining , verification or presentation of its content.
  • By virtue of this right, the manufacturer of a database may prohibit the extraction and / or reuse of all or a substantial part of its contents (as long as the obtaining, verification or presentation of this content It represents a substantial investment from a quantitative or qualitative point of view). This right may be transferred, ceded or licensed.
  • Nor is the repeated or systematic extraction and / or reuse of non-substantial parts of the contents of the database supposed to be acts contrary to a normal exploitation of it or that cause unjustified damage to the legitimate interests of its manufacturer.
  • The "sui generis" right on the data base is applied without prejudice to the possible existing rights over its content (copyright of the works included or others).

Last update: 20 / 05 / 2019