How to protect your creations: Be aware of your IP rights

Copyright is defined by the World Intellectual Property Organization (“WIPO”) as the legal term used to describe the rights that creators have over their literary and artistic works. It covers, however, a wide range of works, including books, music, paintings, sculptures and films, but also computer programs, databases, advertisements, maps, and technical drawings.

Unlike patents and most of the trademarks, which require a previous registration in order to be legally protected, copyrightable works are automatically protected, with no further formalities, by virtue of the mere fact of its creation, and such protection lasts until 70 years after the death of the creator.

In the European Union, copyright regulations have been harmonized by a number of directives, which the Member States are obliged to enact into their national laws. The key piece of legislation as regards copyright in the EU is Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (hereinafter, the “Directive”).

The Directive focuses on the economic rights. Before turning to those rights, though, I’d like to highlight that creators also have another type of rights, the so-called moral rights, which protect their non-economic interests and cannot be waived or assigned. Moral rights are left outside the scope of the Directive but can be exercised by their rightholders according to the legislation of the Member States. By way of example, the Spanish Copyright Act (approved by Royal Legislative Decree 1/1996, dated 12 April) foresees the following moral rights for creators:

    • The right to decide whether his work is to be made available to the public, and if so in what form;
    • The right to determine whether such communication should be effected in his name, under a pseudonym or sign or anonymously;
    • The right to claim authorship of the work;
    • 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 may be prejudicial to his legitimate interests or to his reputation;
    • The right to alter the work subject to respect for the acquired rights of third parties and the protection requirements of goods of cultural interest;
    • The right to withdraw the work from circulation due to changes in his intellectual or ethical convictions, after paying damages to the holders of the exploitation rights;
    • The right of access to the sole or a rare copy of the work, when it is in another person’s possession, for the purpose of the exercise of the right of communication or any other applicable right.

    As far as the economic rights are concerned, they can be defined as those rights that allow their holder to derive financial reward from the use of his works by others. In other words, creators have the right to authorize or prevent certain uses in relation to their work or, in some cases, to receive remuneration for the use of his work by third parties (such as through collecting societies). The main economic rights can be classified as follows:

      • Reproduction right”: It refers to the fixation, directly or indirectly, permanently or temporarily, by any means and in any form, of a whole work or part thereof, enabling it to be communicated or copied (e.g. a printed publication or a sound recording). The exclusive right of authorizing or prohibiting reproduction is granted to authors (as regards their works), performers (as regards their performances), phonogram producers (as regards their phonograms), producers of the first fixations of films (in respect of the original and copies of their films) and broadcasting organisations (as regards fixations of their broadcasts).
      • Right of communication to the public”: it refers to the making available to the public of a work in such a way that members of the public may access it from a place and at a time individually chosen by them. This economic right is granted to authors, performers, phonogram producers, producers of the first fixation of films and broadcasting organisations. A few examples: stage performances, recitations, dissertations and public performances of dramatic, literary and musical works, the public projection or showing of cinematographic and other audiovisual works, the broadcasting or communication to the public by satellite of any work, etc.
      • Distribution right”: the making available to the public of the original or of copies of the work, in a tangible support, by means of sale, rental or lending or in any other manner whatsoever. Once the first sale or first other transfer of ownership in the EU of a copy has been made by its rightholder or with his consent, this distribution right is deemed to be exhausted.
      • Transformation right”: it includes the translation, adaptation and any other alteration of the form of a work from which a different work is derived. Although this right is not expressly regulated in the Directive, it is foreseen in article 12 of the Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886, as well as in the legislations of some Member States.

    In some cases, creators cannot prohibit the use of their works by third parties. In those cases, exceptions or limitations to the abovementioned economic rights apply. Those limitations are regulated by copyright legislation of the Member States and may include, among others:

      • Certain temporary acts of reproduction which are integral to a technological process;
      • The use of works for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author’s name, is indicated;
      • Those uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability;
      • Quotations for purposes such as criticism or review, provided that some additional requirements be met;
      • The use of a work for the purposes of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings;
      • The use of works, such as works of architecture or sculpture, made to be located permanently in public places;
      • The incidental inclusion of a work or other subject-matter in other material; etc.

In conclusion, it is important that creators be aware of what rights the copyright legislation grants to them, as well as the statutory exceptions or limitations to those rights, so that they can clearly identify whether an infringement of their legitimate rights has occurred. As mentioned above, moral rights cannot be assigned or waived. On the contrary, economic rights allow creators to receive a financial reward from the use of their works by third parties, either by means of an express authorization to such uses or, in some cases, through a statutory remuneration (for instance, a fair compensation for private copying).

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