Intellectual property

What is intellectual property?

The term ‘intellectual property’ covers all rights belonging to authors and other right holders (artists, producers, broadcasters, etc.) over the works and performances they have created.

The Ministry of Culture is the authority tasked with proposing the measures, regulatory or otherwise, to ensure intellectual property is adequately protected.

Holders of intellectual property rights

It is necessary to distinguish between copyright holders and the holders of other intellectual property rights (also referred to as related or associated rights):

• Copyright holders: an author is considered to be a natural person who creates any literary, artistic or scientific work. All original literary, artistic or scientific creations expressed through any medium, whether tangible or intangible, currently known or that may be invented in the future, come under intellectual property. The intellectual property of a literary, artistic or scientific work belongs to the author purely by virtue of having been created. The status of author cannot be taken away; it cannot be transferred ‘inter vivos’ or ‘mortis causa’, it does not lapse with the passage of time, it does not enter the public domain and is not subject to any time limit.
• Holders of other intellectual property rights:
  • Performers or performing artists: a person who depicts, sings, reads, recites or interprets a work in any way. A stage director or orchestra conductor is considered such a person.
  • Producers of phonograms: a natural person or legal entity under whose initiative and responsibility a work or other sounds are captured, exclusively in terms of audio, for the first time.
  • Producers of audiovisual recordings: a natural person or legal entity behind an initiative for and taking the responsibility for an audiovisual recording.
  • Broadcasters: legal entities under whose organisational and economic responsibility programmes or transmissions are broadcast.
  • Takers of ordinary photographs: a person who creates a photograph or other reproduction obtained by a similar process, where neither is qualified as a ‘work’ protected under Book I of the consolidated Intellectual Property Law (TRLPI).
  • Protection of certain editorial productions: refers to unpublished works in the public domain and certain works not protected under the provisions of Book I TRLPI.

Moral and economic rights

With intellectual property rights, a distinction is made between moral rights and economic rights:

• Moral rights: unlike the legal systems in English-speaking countries, Spanish legislation provides clear protection for moral rights, recognised as belonging to authors and performers or performing artists. These rights cannot be waived or assigned and are held by the author or performer throughout their lifetime, and by their heirs or successors upon their death. They include the right to recognition as the author of the work or recognition of the name of the artist for their interpretation or performance, and the right to demand respect for the integrity of the work or performance, and the non-alteration thereof.
• Economic rights, with a distinction being made between:
  • Rights relating to the exploitation of the protected work or performance, which in turn are subdivided into exclusive rights and remuneration rights:
    • Exclusive rights are rights that entitle the holder to authorise or prohibit acts of exploitation of their protected work or performance by the user, and to demand payment from the user in exchange for granting authorisation.
    • Unlike exclusive rights, remuneration rights do not entitle the holder to authorise or prohibit acts of exploitation of their protected work or performance by the user, although they do oblige users to pay a sum of money for any exploitation of the work or performance, this sum being determined either by law or, alternatively, by the normal fees charged by management entities.
  • Compensatory rights, such as the private copying right that provides entitlement to compensation for the intellectual property rights no longer received for the reproduction of the protected works or performances for the exclusive private use of the copyist.

• Holders of intellectual property rights may entrust the management of their rights to collective management organisations or independent management operators. The aim is to ensure effective use and proper control of how their rights are used. These kinds of organisations and operators are regulated under Title IV of Book III of Royal Legislative Decree 1/1996 of 12 April, which approves the consolidated text of the Intellectual Property Act. They are responsible for granting licences, collecting relevant royalties, and distributing sums received among the rights holders that they represent within their respective areas of competence.
• Collective Management Organisations : these are private non-profit organisations or associations, (authorised by the Ministry of Culture) which either on their own behalf or on behalf of another specialise in managing property in the form of intellectual property rights for their lawful owners. Their main functions are described here.
  • Addresses and fees of intellectual property collective management organisations: the addresses of management organisations authorised by the Ministry of Culture can be found here, along with the normal fees applicable to users of the rights managed by these organisations. The Ministry is not involved in setting these fees.
• Independent management operators : these are private, for-profit organisations that exercise the exclusive intellectual property rights granted to them by rights holders under a management agreement. However, they must not be owned or controlled, directly or indirectly, in whole or in part, by rights holders. Their main functions are described here.
• Independent management operators wishing to operate in Spain must notify the Ministry when commencing their activities in Spain. A list of the independent management operators who have notified the authorities of the commencement of their activities in Spain can be found here . 

• Section I of the Intellectual Property Commission , responsible for mediation, arbitration and setting of rates.
• Section II of the Intellectual Property Commission , responsible for protecting intellectual property rights online.

The purpose of the General Intellectual Property Register is to register or annotate the rights relating to the works, performances or productions protected by the consolidated Intellectual Property Law, and by the other legal provisions and international treaties ratified by Spain in relation to the protection of intellectual property. It also handles the registration or annotation of acts and contracts establishing, transferring, amending or extinguishing rights in rem and any other facts, acts and titles, both voluntary and necessary, affecting those registrable rights.

There is a single General Intellectual Property Register for the whole of Spanish territory and it is made up of the local registers created and managed by the autonomous communities and the Ministry of Culture's Central Register.