Legislation and enforcement

Relevant legislation

What is the relevant legislation?

The current relevant legislation is:

  • the Royal Legislative Decree 1/1996, dated 12 April, enacting the Consolidated Text of the Intellectual Property Act (SCA), which was last updated by Act 2/2019, of 1 March;
  • articles 270 to 272 of the Organic Act 10/1995 enacting the Criminal Code;
  • article 122 of Act 29/1998, of 13 July, governing Administrative-Contentious Jurisdiction;
  • articles 53 et seq. of the Sustainable Economy Act (Act 2/2011, of 4 March); and
  • Law of Services of the Information Society and Electronic Commerce (Act 34/2002 of 11 July).
Enforcement authorities

Who enforces it?

Mercantile Courts enforce civil actions (foreseen in the SCA). Criminal courts enforce criminal actions (foreseen in the Criminal Code). The Intellectual Property Commission (CPI) handles an administrative procedure for the safeguarding of rights in the digital environment, seeking the ‘restoration of legality’ (ie, the takedown of the illegal copies of the rights holders’ works). This administrative procedure is carried out ex officio by the CPI, although it is required that rights holders submit a formal request (denounce) and provide the CPI with reasonable evidence of the copyright infringement committed and the harm caused, upon which the CPI begins a preliminary investigation of the case.

Online and digital regulation

Are there any specific provisions of your copyright laws that address the digital exploitation of works? Are there separate statutory provisions that do so?

The following examples of the SCA’s specific provisions:

Article 20.1.i of the SCA regulates the act of making works available interactively, in such a way that members of the public may access them from a place and at a time individually chosen by them (ie, the public communication of works via the internet).

Articles 170 to 174 of the SCA regulate multi-territorial non-exclusive licensing of rights over musical works for online use in line with Directive 2014/26/EU of 26 February 2014. According to the SCA, collective management organisations (CMOs) that grant multi-territorial licences for online rights in musical works must have sufficient capacity to process electronically, in an efficient and transparent manner, data needed for the administration of such licences, including for the purposes of identifying the repertoire and monitoring its use, invoicing users, collecting rights revenue and distributing amounts due to rights holders.

Article 24.5 of the SCA includes online resales for the purposes of resale rights that benefit the author of an original work that is resold for at least €800. Prior to the latest SCA update, the author was only entitled to resale rights if the price amounted at least to €1,200.

Article 158-ter of the SCA enables rights holders to initiate the above-mentioned administrative procedure for the safeguarding of rights in the digital environment, seeking the ‘restoration of legality’ (ie, the takedown of the illegal copies of the rights holders’ works). The procedure is aimed against the persons responsible for internet service providers (ISPs) that operate in Spain and infringe copyright on a large-scale basis. The infringing sites can be blocked for a maximum period of one year. Should there be a relapse in the infringement of the same or other works of the same rights holder, significant fines (from €150,001 to €600,000) could also be imposed on the infringing site. Since the SCA’s latest amendment (dated March 2019) former article 158-ter is now article 195 and allows the CPI to directly order the blocking of infringing websites (ie, without judicial authorisation, in the case of repeated and serious infringing activities).

In addition to the SCA, there are separate statutory provisions addressing aspects of the digital exploitation of works, such as articles 53 et seq. of the Sustainable Economy Act (Act 2/2011, of 4 March), regarding ownership of copyright arising from scientific research activities, and Law of Services of the Information Society and Electronic Commerce (Act 34/2002 of 11 July), regarding the safeguard of copyright in the online environment.

Extraterritorial application

Do your copyright laws have extraterritorial application to deal with foreign-owned or foreign-operated websites that infringe copyright?

No. Our copyright laws do not have extraterritorial application.

Agency

Is there a centralised copyright agency? What does this agency do?

The Registro de la Propiedad Intelectual (the Copyright Office or the Intellectual Property Registry) is the entity keeping a registry of the life of a work, from its creation to it entering into the public domain, serving as proof of the existence of a work and the author of the same.

The registration of works is not mandatory, since it does not grant any rights. Rights over the work are granted by its creation.

Subject matter and scope of copyright

Protectable works

What types of works may be protected by copyright?

All literary, scientific or artistic creations if they are original and expressed by any means.

Rights covered

What types of rights are covered by copyright?

Copyright covers the following rights:

  • moral rights (article 14 of the SCA), which include the following rights:
    • to decide how and when the first dissemination of a work will be made and by whom;
    • to be recognised as author of the creation or work (claim of authorship);
    • to demand the conservation of the work’s integrity (ie, to impede third parties to hinder, alter, deform or attempt against the work); and
    • to withdraw the work from the marketplace (some requirements must be met in order to execute this right); and
  • exclusive (economic or patrimonial) rights (articles 17 to 21 of the SCA), which are:
    • to make or authorise (or prohibit) third parties to make copies;
    • to distribute or commercialise a work (selling or rental);
    • to communicate a work to the public (including the making available to the public); and
    • to transform or let a third party transform or modify a work creating a new work (some limitations to these rights is set out by the law).

Moral rights cannot be waived or assigned, although some of them can be exercised upon the author’s death by his or her heirs or the person designated by the author, and in some cases by the government.

Other secondary copyright owners are not entitled to moral rights, but can hold exclusive rights to the extent agreed between the parties or following legal provisions.

Excluded works

What may not be protected by copyright?

Creations that are not original cannot be protected. Copyright does not protect ideas either. There are some creations that may be original but are excluded from the protection of the SCA under article 13, such as:

  • legal or regulatory provisions and drafts thereof;
  • judgments and decisions of jurisdictional bodies;
  • acts, resolutions, discussions and rulings of public bodies; and
  • the official translation of all such texts.
Fair use and fair dealing

Do the doctrines of ‘fair use’ or ‘fair dealing’ exist, and, if so, what are the standards used in determining whether a particular use is fair?

Fair use is not directly included in the SCA as a limitation or an exception to exclusive rights.

Nevertheless, article 40-bis of the SCA contains the ‘three-steps rule’, which applies to all limitations and exceptions to the exclusive rights. This rule aims to determine the adequacy of an exception by passing it through the following filter:

  • it shall be exceptional (numerus clausus) and substantiated;
  • it should never undermine the normal exploitation of the work; and
  • it could never damage the legitimate interest of the author.
Architectural works

Are architectural works protected by copyright? How?

Architectural works included on the exemplary list of works are protected by copyright (article 10 of the SCA). Protection is granted to construction drawings, plans, designs and to the project or building itself.

Performance rights

Are performance rights covered by copyright? How?

No. They are covered by the ‘related’, ‘ancillary’ or ‘neighbouring rights’ (ie, reproduction, distribution and communication to the public).

Neighbouring rights

Are other ‘neighbouring rights’ recognised? How?

These rights are granted to:

  • companies and persons that produce audiovisual and musical recordings over the said recordings;
  • photographers over their creations or photographs that do not meet all requirements to be considered as work-for-hire;
  • broadcasting companies over their signals;
  • publishers over unpublished works that enter the public domain; and
  • actors over the fixation of their performances.
Moral rights

Are moral rights recognised?

The authors’ moral rights are recognised. (See question 7.)

Copyright formalities

Notice

Is there a requirement of copyright notice?

No.

What are the consequences for failure to use a copyright notice?

It may be more difficult to prove copyright and its ownership in the event of a dispute.

Deposit

Is there a requirement of copyright deposit?

No. Copyright exists by its mere creation. Without prejudice to this, according to Law 23/2011 on legal deposit, there is an obligation to deposit copies of certain types of literary works in order to be able to commercialise the same. However, this obligation is not a requirement to be granted with rights over a work.

What are the consequences for failure to make a copyright deposit?

See questions 16 and 21.

Registration

Is there a system for copyright registration, and, if so, how do you apply for a copyright registration?

Yes. It is set forth at the SCA and the Royal Decree 281/2003, of March 7, approving the Regulation of the General Registry of Intellectual Property or Copyright Office:

  • completing the registration form, which can be obtained at the Copyright Office (Intellectual Property Registry) or found on the Copyright Office’s official website;
  • paying the fees; and
  • filing the form, whether in person or by submitting it via the Copyright Office’s official website (a digital certificate will be needed in order to be able to proceed online).

Further requirements depending on the type of work, may include: providing a copy of the work, and indicating its genre, the frequency or pitch, and the approximate duration.

Is copyright registration mandatory?

No.

What are the fees to apply for a copyright registration?

General fees are approximately €14. It may vary on the number of documents to be provided.

What are the consequences for failure to register a copyrighted work?

A qualified piece of evidence regarding copyright ownership would not exist.

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.)

Duration of copyright

Protection start date

When does copyright protection begin?

When an original work is created and expressed by any means.

Duration

How long does copyright protection last?

As a general rule, the author’s life plus 70 years after his or her death (from 1 January of the following year). There are also particular situations, such as the following.

Works of joint authorship

Works that are the result of a collaboration of two or more authors have the same term of protection, but the term of 70 years after the death of the author is counted after the death of the last living author.

Collective works

Those created under the initiative and under the direction of an individual or a legal person, who edits it and publishes it under his or her name. The term of protection of this work is 70 years since the work is made available to the public.

Does copyright duration depend on when a particular work was created or published?

Yes. (See question 33.)

Renewal

Do terms of copyright have to be renewed? How?

No, as a general rule. Exceptionally, there are particular situations in which terms of copyright have to be renewed (eg, in cases where author’s remuneration becomes disproportionate in connection with returns of exploitation of the work).

Government extension of protection term

Has your jurisdiction extended the term of copyright protection?

Yes. Since the Berne Convention establish a minimum duration of the life of the author plus 50 years after his death, Spanish government has decided to extend such terms by 20 more years (ie, life of author plus 70 years after his or her death).

Copyright infringement and remedies

Infringing acts

What constitutes copyright infringement?

Unauthorised reproduction, distribution, public communication (including making available to the public), and transformation of copyrighted works.

Vicarious and contributory liability

Does secondary liability exist for indirect copyright infringement? What actions incur such liability?

Yes, second liability for indirect infringement was added to the SCA in 2014 (by Law 21/2014) to include those who ‘indirectly’ infringe copyright via the internet (eg, internet service providers that knowingly provide the means - by providing links or organising content uploaded by users - for their users to share and use illicit content), especially those that:

  • knowingly induced the infringing conduct;
  • cooperated with the infringer, knowing that the content would infringe the rights of other parties, or having reasonable indications to know it;
  • had a direct economic interest in the results of the infringing conduct; and
  • had the capacity to control the behaviour of the offender.
Available remedies

What remedies are available against a copyright infringer?

The following remedies are available:

  • the publication, in part or in full, of the judicial resolution, at the infringer’s expense;
  • suspending the infringing exploitation or the infringing activity;
  • prohibiting the infringer from developing or resuming the infringing exploitation or activity;
  • withdrawing and destroying unlawful copies and equipment used for the infringing activity;
  • removing instruments used for unauthorised suppression or neutralisation of any technical device used to protect works; and
  • damages for:
    • the loss suffered due to the infringement;
    • loss of profits; and
    • expenses incurred by the rights holder to secure reasonable evidence of infringement.
Limitation period

Is there a time limit for seeking remedies?

Yes. The statute of limitations is five years.

Monetary damages

Are monetary damages available for copyright infringement?

Yes.

Attorneys’ fees and costs

Can attorneys’ fees and costs be claimed in an action for copyright infringement?

Yes.

Criminal enforcement

Are there criminal copyright provisions? What are they?

Yes, Criminal Code punishes the following criminal activities against the copyright of exclusive owners:

  • The reproduction, plagiarism, distribution, public communication or, in any other way, the economic exploitation, in whole or in part, of a work or performance, fixed in any type of form or communicated through any means, without the authorisation of the intellectual property rights holders or their assignees, with the aim of obtaining a direct or indirect economic benefit, and to the detriment of a third party.
  • To provide access to, or the location of, intellectual property on the internet in an active and non-neutral way, without the provider limiting itself to a merely technical treatment and without the authorisation of the rights holders or their assignees - in particular, obtaining a direct or indirect economic benefit by offering classified lists of links to the works and contents referred to above, even if said links were provided by the users of its services - all to the detriment of a third party (rights holders).
Online infringement

Are there any specific liabilities, remedies or defences for online copyright infringement?

Yes. (See questions 3 and 39.)

Prevention measures

How may copyright infringement be prevented?

It may be prevented by requesting an injunction by which the alleged infringed is ordered not to carry out specific acts of copyright exploitation. It also may be prevented by the installation of technical protection measures.

Relationship to foreign rights

International conventions

Which international copyright conventions does your country belong to?

Spain is party to the following international agreements:

  • the Berne Convention for the Protection of Literary and Artistic Works (5 December 1887);
  • the Convention Establishing the World Intellectual Property Organisation (WIPO) (26 April 1970);
  • the Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of their Phonograms (24 August 1974);
  • the Convention concerning the Protection of the World Cultural and Natural Heritage (4 August 1982);
  • the Protocol to the European Agreement on the Protection of Television Broadcasts (1983);
  • the European Agreement for the Prevention of Broadcasts Transmitted from Stations Outside National Territories (11 March 1988);
  • the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (14 November 1991);
  • the Protocol to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (26 September 1992);
  • the Protocol to the Agreement on the Importation of Educational, Scientific or Cultural Materials (2 April 1993);
  • the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights 1994 (1 January 1995);
  • the WIPO Copyright Treaty (14 March 2010); and
  • the WIPO Performances and Phonograms Treaty (14 March 2010).

What obligations are imposed by your country’s membership of international copyright conventions?

Namely, and among many other things, to apply the minimum rules established in all international conventions and treaties signed by Spain, and more specifically to consider the national treatment rule when dealing with authors and performers belonging to the conventions’ member states.