INTELLECTUAL PROPERTY

FAQ on intellectual property: Ownership and assignment of rights

The acts of exploitation (reproduction, distribution, public communication and transformation) of the works of which we are not the owners of the rights can be done as long as:

  • The act of exploitation to be done is seen as one exception allowed by the Intellectual Property Law

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  • The authorization of its authors or holders of the rights is available.

It is important to keep in mind that when the authors publish their works they often cede part of the exploitation rights to publishers, producers, etc.

  • You must contact the author or the individual or legal entity that holds the rights of a work (claim) to request authorization or information about who is the current holder of the rights. However, if contacting has not been possible, the Intellectual Property Registry It may be useful to get this information.
  • In case the work that you want to use forms part of the repertoire of a collective rights management entity (CEDRO, EGEDA, etc.), you must contact the same to agree on the payment of a License of use. Once this payment has been made, the work can be used according to the conditions established in the mentioned license.
As set forth in thearticle 15 LPI, At the death of the author, the exercise of the rights mentioned in sections 3r and 4t of the14 article It corresponds, without limit of time, to the natural or legal person to which the author has been expressly trusted by disposition of last will. If there is no case, the exercise of these rights corresponds to the heirs.
  • To demand the recognition of the condition of author of the work (art. 14.3)
  • Demand respect for the integrity of the work and prevent any deformation, modification, alteration or attack on it that would harm its legitimate interests or impair its reputation (art. 14.4)
The same persons indicated in the previous number and in the same order that they are indicated may exercise the right provided in section 1r of the14 article, in relation to the work not disclosed during the life of the author and for a term of seventy years from its death or death declaration, notwithstanding the provisions of the40 article:
  • Decide if your work should be disseminated and in what form (art. 14.1)
  • If, at the death or declaration of death of the author, his claimants exercise the right to non-disclosure of the work, in conditions that violate what is available to them,44 article of the Constitution, the judge may order the appropriate measures at the request of the State, the Autonomous Communities, local corporations, public institutions of a cultural nature or any other person with a legitimate interest (Art 40)

Is considered Orphan work the one with copyright (or related rights) in force but none of which is the owner of the exploitation rights, or, if none of them is found, none is located despite their being do a diligent search

For example, this would be the case of a work whose author has been transferred and it is not known if there are heirs.

The Orphan works They should not be confused with works exhausted, since these are works from which all copies have already been sold or distributed, with no foresight of a new impression or reissue by the corresponding publisher.

In relation to this topic, it is remarkable Memorandum of Understanding (MoU) on Key Principles on the Digitization and Making Available of Out-of-Commerce Works , an agreement promoted by the European Union and negotiated between several representative entities of libraries, on the one hand, and of publishers, authors and entities of collective management of rights on the other, which includes the main elements that both parties must have Consider for licensing the digitization and making available books or magazines that are exhausted.

As established by articles 48 / 50 of the LPI, cessions of the exploitation rights of a work can be done exclusively or not exclusively:

Cessions in exclusive
  • The transfers exclusively attribute to the transferee the power to exploit the work with the exclusion of any other person (including the own assignor) and, except for a pact against, the granting of non-exclusive authorizations to third parties.
  • The transferee may exclusively transfer to others their right with the express consent of the transferor.
  • This consent is not necessary when the transmission is carried out by a dissolution or change of ownership of the cessionary company.
Non-exclusive assignments
  • The non-exclusive assignee may use the work according to the terms of the assignment and in concurrence with both the other transferees and the transferor themselves. Your right is non-transferable, except in the case of a dissolution or change of ownership of the cessionary company.
  • Non-exclusive authorizations granted by management entities for the use of their repertoires will, in any case, be unviable.
Wage earners

In relation to salaried authors and as established by thearticle 51 LPI :

  • The transfer to the employer of the exploitation rights of the work created under a labor relationship shall be governed by what has been agreed upon in the contract, which must be made in writing.
  • In the absence of a written agreement, it is presumed that the rights of exploitation have been granted exclusively and with the necessary scope to carry out the habitual activity of the employer at the time of delivery of the work carried out in virtue of this labor relationship.
  • The employer can never use or have the work in a sense or for purposes other than those derived from what is established in the previous points.

    There are currently 8 management entities, each specialized in a type of work or act of exploitation. Among these, the collective rights management entities AGEDI, AIE, CEDRO and SGAE have created the IBERCREA association.

    Definition
    • The entities of management of intellectual property rights are private non-profit associations that are dedicated to the defense and collective management of the exploitation rights of the works of its associates.
    Articles of the regulatory LPI
    Outstanding aspects of regulatory articles
    • La Intellectual Property Commission You can address against the infringers of intellectual property rights against those services (links pages) that facilitate the description or location of works offered without authorization, carrying out an active activity not neutral (without limitation to activities merely of technical intermediation). Additionally, it is not taken into account if these links are initially provided by the recipients of the service.
    • Repeated breach (two or more times) of requirements for withdrawal of content declared violators may be sanctioned with a fine between 30.000 and 300.000 euros.
    • The rights management entities are subject to more comprehensive control by the Public Administration.
    • A model of "single window"With which the billing and payment of the amounts that the users have to pay to the entities of collective management of rights is centralized.

      Use licenses are private contracts between the owner or producer of a work (computer program, database, electronic journal, etc.) and the user or subscriber of the work. The use license regulates what uses are allowed or excluded (reproduction, public communication, etc.).

      • Through the granting of licenses or authorizations prior to payment, third parties are allowed to use the works of their repertoire, whose regulation is marked by legislation, Subsequently, the money obtained by the granting of authorizations, is They distribute between the owners of the works they represent.
      • For example, CEDRO offers the portal Con licence , from which you can pay an annual license or for occasional use to be able to reproduce, distribute and communicate pieces of works from its repertoire (it also offers a payment service for the intermediation and location of the owners of works that do not form part of its repertoire).

      Consult the authorized uses of the resources contracted by the UPC

      If the author has granted the exploitation rights of a published document (postprint) exclusively, it may only be deposited on a website or institutional deposit if he obtains the express written authorization of the person or entity currently holder of the rights (editor, magazine, etc.).

      In the case of not obtaining this permission, alternatively, the draft of the document could be deposited, without the modifications proposed by the review committee (preprint), as long as this was not a restriction pre-established by the publishing entity.
      Transfer of rights exclusively
      • The author has all the moral and exploitation right and therefore can deposit his work, unless he has ceded exclusively to a third person the right of exploitation of that work (for example, to a magazine editor).
      • In general, when it is published in a magazine, the right of reproduction and distribution to the publisher is transferred. Most international commercial publishers, however,self archiving in digital deposits with possible limitations (for example, it is not allowed to upload the pdf version published in the journal, or it is only allowed once a specific time limit has expired).
      • If the author has transferred his exploitation rights exclusively to a third person (publisher), the author can not upload the document to the repository without his permission. When submitting an article to a periodical publication, authors should be aware of whether at any time they have accepted the assignment of some of their rights to the editor of the magazine, especially the right of public communication, which is what would allow you to upload your article to the web or deposit you deem most appropriate. If the opposite is not expressly stated, the exploitation rights are the author's.
      Disclaimer of ownership
      • In case the author does not know in what situation he has transferred his exploitation rights, you must consult the Acceptance sheet of the publication rules or the assignment sheet of rights, in the case of magazines or congresses, or the editing contract in the case of monographs.
      authorship

      As set forth in the97 article of the LPI:

      • The person or group of natural persons who created it, or the legal entity that is contemplated as the holder of the copyright in the cases provided by law, is considered author of a computer program.
      • If it is a collective work, it is considered author, unless otherwise agreed by the natural or legal person that edits it and disseminates it under its name. On the other hand, if the computer program is a unitary result of the collaboration between several authors, the copyright corresponds to all of them in the proportion that they determine.
      Wage earners

      If a salaried worker creates a computer program, in the exercise of their functions or under the instructions of their employer, the ownership of exploitation rights (both of the source program and the object program) correspond exclusively to the " businessman unless otherwise agreed.

      Assignments of rights The GNU licenses They are free software licenses with which the corresponding owners of the rights have a tool to authorize the execution of their software in a free manner.
      More information

      For more information about works in collaboration and the collective works , you can consult the following sources

      In the event that any person has plagiarized a work or any other use not permitted by law, without the consent of the corresponding holder, the immediate cessation of the illegal activity may be requested and / or a legal suit, such as as detailed to articles 138 / 143 LPI. In this case, any proved Ownership can be useful.

      At the decision of the injured party, compensation may be demanded for damages, which requires the prior lifting of a notarial act of illegal use.

      In order to detect the possible unauthorized uses made of the work itself, several resources can be used (plagiarism detection programs ...).


      Last update: 28 / 04 / 2020