Ownership and transfer

Eligible owners

Who is the owner of a copyrighted work?

Primarily, the author or authors.

Secondarily, by way of assignment or legal provision:

  • the legal person which makes the work available to the public; and
  • the author’s assignees, heirs, licensors, publishers (sub-publishers or co-publishers); and
  • producers (or co-producers).
Employee and contractor work

May an employer own a copyrighted work made by an employee?

Yes. The SCA establishes a presumption in favour of the employer whereby he or she becomes owner of all exploitation rights over works created by employees if the works are created as part of an employment contract and the execution of employees’ duties. In these cases the employer is only entitled to exploit the works within the activity of the company.

May a hiring party own a copyrighted work made by an independent contractor?

Yes. However, the hiring party must enter into an agreement with the independent contractor to get all rights over the copyrighted work granted on an exclusive basis.

Exceptionally, there is a case whereby the rights are presumed to pertain to the hiring party, namely works created for promotion or publicity purposes. In this case, according to Law 34/1988, of 11 November, on advertising and publicity, it would be presumably that the hiring party (advertiser) would have all exclusive rights over the works made by an independent contractor (agency), unless otherwise agreed by contract.

Joint and collective ownership

May a copyrighted work be co-owned?

Yes. In case of co-ownership, the SCA establishes that the rights pertain to all authors in the proportion determined by them or, in absence of agreement, the proportion will be based on the number of co-authors.

Transfer of rights

May rights be transferred?

Yes, they can be assigned exclusively to one person or company, for the duration of copyright (ie, life of the author plus 70 years after his or her death).

Licensing

May rights be licensed?

Yes, on both an exclusive and on a non-exclusive basis.

Are there compulsory licences? What are they?

Yes, following the Berne Convention and similar agreements entered by the Spanish government (see question 46), the SCA provides that users must enter into compulsory licences when the right to remuneration is present. For example, article 90.3 of the SCA provides a remuneration right for the authors of cinematographic works, when such work is exhibited in theatres. Consequently, the SCA provides several compulsory licences that shall be granted by CMOs.

Are licences administered by performing rights societies? How?

Yes. CMOs grant licences related to rights subject to mandatory collective management (eg, public communication rights in establishments open to the public) and can also grant licences over exclusive rights (if they are authorised by the corresponding contract with the rights holder).

Termination

Is there any provision for the termination of transfers of rights?

Yes, depending on the type of works.

Recordal

Can documents evidencing transfers and other transactions be recorded with a government agency?

Yes, at the Copyright Office. (See question 18.)