Whereas in other parts of Europe the civil process of defending oneÂ’s rights to intellectual property may be cumbersome and usually very costly, in Spain it is much simpler and it could even be dealt with under criminal law.
How to define Intellectual Property?
The creation of a new name, an invention, the writing of a book or an article, a song, are the property of their creator so long as the work so created is original.
This refers to the actual product and not the idea behind it. For instance, one may want to write an article about copyright, the idea to want to write on that subject cannot be classed as intellectual property but the article itself could. As long as it is original in its form, in the literary sense, it belongs to the person that created it. There is a difference between writing about something, especially if it has been written about by many, and the actual written text used.
LetÂ’s clarify this further with another example. The idea to create a new name or definition is not intellectual property, but the actual name created is, as long as it is original and has not existed before.
The creation of such works needs protecting to stop it being exploited by others for their own financial benefit at the expense of the true author.
Trade marks and similar original identifying names or marks are usually registered and become protected under Â“Trade MarksÂ” legislation; however they are also protected under copyright law. The Berne Convention of 1886, which was finally also adopted by the USA with the Berne Convention Implementation Act of 1988, quite clearly states that the owner of intellectual property must be protected from others copying it and that Â“such protection should not need to be purchased or paid for and does not require registration or the inclusion of a copyright notice for the copyright to existÂ”.
Â“CopyrightÂ” is distinct from Â“PatentÂ” which is another form of intellectual property protection in respect of a tangible type of creation (ie: ball point pen, typewriter). Copyright has been devised to protect the intangible property such as a painting, literary works, music, songs, poems, photos, computer programs, films, maps, etc. The list is endless.
It is worth to note that the use of a copyrighted work, altered by another to disguise it, does not result in the creation of a new, distinct work and it does not prejudice the authorÂ’s right of ownership. This means that translations, adaptations, and the general transformation of an original work of a literary, artistic or scientific nature, qualifying as intellectual property, remains the property of the original author. Certainly in Spain! The exception is the reproduction and translation of political and legal material published without gain for the benefit of the public at large.
Although Spain, as part of the EU is a signatory to the Berne Convention, each state is governed by its own type of legislation and in this instance the amendment approved by Â“The Royal Legislative Decree 1/1996 of April 12, 1996Â”, (http://www.wipo.int/clea/en/text_pdf.jsp?lang=EN&id=1358 ) where among others, Art. 14 states Â“that the author is vested with the following un-renounceable and inalienable rights:
1. The right to decide whether his work is to be disclosed, and if so in what form.
2. The right to determine whether such disclosure should be effected in his name, under a pseudonym or sign or anonymously.
3. The right to demand recognition of his authorship of the work.
4. The right to demand respect for the integrity of the work and to object to any distortion, modification or alteration of it or any act in relation to it that is liable to prejudice his legitimate interests or threaten his reputation.
5. The right to alter the work subject to respecting the rights acquired by third parties and the protection requirements of goods of cultural interest.
6. The right to withdraw the work from circulation due to changed intellectual or moral convictions, after indemnification of the holders of exploitation rights for damages and prejudice. If the author later decides to resume exploitation of his work, he shall give preference, when offering the corresponding rights, to the previous holder thereof, and shall offer terms reasonably similar to the original terms.
7. The right of access to the sole or a rare copy of the work, when it is in another personÂ’s possession, in order to exercise the right of disclosure or any other applicable right. This right shall not allow the author to demand the moving of the work, and access to it shall be had in the place and manner that cause the least convenience to the possessor, who shall be indemnified where appropriate for any damages and prejudice caused him.Â”
The rights of Copyright are granted to the author for the duration of his life plus 70 years after his death, during which period the rights are passed on to the estate.
The recourse against infringement of intellectual property rights in Spain by a prejudiced person can be through civil action via the Courts or in some instances criminal action.
Compensation for damages may take the form of compensation in respect of loss of sales and the granting of injunctions to stop the manufacturing and distribution of the offending material and even its confiscation as well as that of the tools needed for its production.
In the case of criminal action penalties may include fines and even imprisonment for a period ranging from 6 months to 2 years.
NB: This is just for general guidance. If you require further information on this matter please contact your lawyer.