Commons:Copyright rules by territory/Spain

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Copyright rules: Spain
Shortcut: COM:SPAIN
Flag of Spain
Map of Spain
Durations
Standard Life + 70 years*
Anonymous Publish + 70 years*
Audiovisual Life + 70 years*
Other
Freedom of panorama Unclear
Terms run to year end Yes
Common licence tags {{PD-old-auto}}
{{PD-SpanishGov}}
ISO 3166-1 alpha-3 ESP
Treaties
Berne convention 5 December 1887
Univ. Copyright Convention 16 September 1955
WTO member 1 January 1995
URAA restoration date‌* 1 January 1996
WIPO treaty 14 March 2010
*‌A work is usually protected in the US if it is a type of work copyrightable in the US, published after 31 December 1928 and protected in the country of origin on the URAA date.

This page provides an overview of copyright rules of Spain relevant to uploading works into Wikimedia Commons. Note that any work originating in Spain must be in the public domain, or available under a free license, in both Spain and the United States before it can be uploaded to Wikimedia Commons. If there is any doubt about the copyright status of a work from Spain, refer to the relevant laws for clarification.

Background

Spain has been a member of the Berne Convention since 5 December 1887, the Universal Copyright Convention since 16 September 1955, the World Trade Organization since 1 January 1995 and the WIPO Copyright Treaty since 14 March 2010.[1]

The Royal Act 1/1996, of 12 April 1996 approved the revised text of the Intellectual Property Law, the main IP law.[1] The consolidated text incorporating revisions up to 14 April 2018 is provided on their website by the Boletin Oficial del Estado. The act repealed Law 22/1987, of November 11, on Intellectual Property and subsequent amendments.[2] The Law of 10 January 1879 on intellectual property still applies to works by authors who died before the 1987 Law took effect.[3]

General rules

Under the 1996 Intellectual Property Law as amended up to 14 April 2018,

  • The rights of exploitation of a work last for the life of the author and 70 years after his death or declaration of death.[1/1996-2018 Article 26]
  • The exploitation rights of anonymous or pseudonymous works last 70 years from their lawful disclosure, as long as the author does not become known during this period.[1/1996-2018 Article 27(1)]
  • The rights of exploitation of the works that have not been lawfully disclosed last 70 years from their creation, when the term of protection is not computed from the death or declaration of death of the author or authors.[1/1996-2018 Article 27(2)]
  • The exploitation rights of collaborative works, including cinematographic and audiovisual works, last for the life of the coauthors and 70 years after the death or declaration of death of the last surviving co-author.[1/1996-2018 Article 28(1)]
  • With musical compositions with lyrics, exploitation rights will last the entire life of the author of the lyrics and the author of the musical composition and 70 years from the death or declaration of death of the last survivor, provided that their contributions were created specifically for the respective musical composition with lyrics.[1/1996-2018 Article 28(1)]
  • Terms of protection established are computed from 1 January of the year following the death or declaration of death of the author or of the legal disclosure of the work, as appropriate.[1/1996-2018 Article 30]

However, works of authors who died before 7 December 1987 (or were published before that date, in case of anonymous works) are dealt with by the 1879 law, which sets a protection time of 80 years post mortem auctoris.[1879 Article 6]

Collective work

A collective work is a work created through the initiative and under the coordination of a natural or legal person who publishes and disseminates it under their name and is formed by combining contributions of different authors whose personal contributions are unique and autonomous creations, by which it has been created without it being possible to attribute separately to any of the authors a right over the whole of the work carried out. Unless otherwise agreed, the rights over the collective work shall correspond to the person who publishes and discloses it under his name.[1/1996-2018 Article 8]

The exploitation rights over a collective works last 70 years from the lawful disclosure of the protected work. However, if the natural persons who have created the work are identified as authors in the versions of it that are made accessible to the public, the provisions of articles 26 or 28.1, as appropriate, will be applied. These provisions are without prejudice to the rights of the identified authors whose identifiable contributions are contained in said works, to which article 26 and 28(1) apply.[1/1996-2018 Article 28(2)]

Not protected

Shortcut

See also: Commons:Unprotected works

Intellectual property protection does not apply to laws and regulations and their corresponding projects, resolutions and acts of jurisdictional bodies, agreements, deliberations and opinions of public bodies, as well as official translations of all the previous texts.[1/1996-2018 Article 13]

Shortcut

See also: Commons:Copyright tags

  • {{PD-Spain-photo}} – for simple photographs taken at least 25 years ago
  • {{PD-SpanishGov}} – for some works by the Spanish government, like laws
  • {{PD-SpanishGov-money}} - for images of the former Spanish pesetas currency
  • {{PD-La Moncloa}} – for content from www.lamoncloa.gob.es which was selected or coordinated by the Secretary of State for Communications (only valid for images uploaded before 26 November 2012)
  • {{Attribution-Catalonia}} – for content from the Parliament of Catalonia (Parlament de Catalunya)
  • {{Attribution-IGN}} - for CC-BY 4.0 licensed maps or other content from Instituto Geográfico Nacional (Spain's National Geographic Institute)

Currency

Shortcut

See also: Commons:Currency

OK: Regarding former Spanish national currency, the pesetas, there is "no significant jurisprudence on the application of copyright to banknotes" per 1999 Report on the Legal Protection of Banknotes in the European Union Member States. Additionally, there is "no use of the copyright symbol: © on Spanish banknotes". The rules for reproduction of pesetas only have provisions for advertising purposes. Reproductions for teaching materials in particular do not require the authorisation of the Bank of Spain.[4]

{{PD-SpanishGov-money}} can be used to tag images of Spanish pesetas.

Spain has used the Euro since 1 January 2002. See COM:CRT/European Union:Currency for Euro banknotes and the shared side of Euro coins.

 Not OK for the national side of Euro coins.

Freedom of panorama

Shortcut

See also: Commons:Freedom of panorama

 Unsure

{{FoP-Spain}} Under the the 1996 Intellectual Property Law as amended up to 14 April 2018,

  • Works permanently located in parks or on streets, squares or other public tracks and passes may be freely reproduced, distributed and communicated by painting, drawing, photography and audiovisual processes.[1/1996-2018 Article 35(2)]

In 1998, Article 40bis was non retroactively introduced in the law, limiting this exception:

  • The above may not be so interpreted that they could be applied in a manner capable of unreasonably prejudicing the legitimate interests of the author or adversely affecting the normal exploitation of the works to which they refer.[1/1996-2018 Article 40bis]

After the introduction of Article 40bis, some Spanish courts have ruled against commercial use of some works situated in public spaces, including Monumento a Los Raqueros and Toro de Osborne. However, in both cases the work had been extracted from its surrounding panorama, and commercialized in that form.[5] In other cases, such as the verdict nº195/2014 from the Audiencia Provincial de Madrid,[6] courts have ruled that works situated in "public areas" can be subject to the exception (that is, they have ruled in favor of freedom of panorama, at least for works situated in "public areas").[7] According to further analysis, authorization from the copyright holder for commercial use of photographs and derivative and composed works of a copyrighted work, could possibly be necessary when the work is "located in a private property that is accessible to public view or that is not considered a public area".[8][9] In the case of the Toro de Osborne, the court considered that only cultural uses were allowed by Article 35.2, excluding any kind of commercial use.[10]

Toro de Osborne Case

By decision dated January 31, 2006, the Provincial Court of Seville considered that the commercial use of the figure or silhouette of the Toro de Osborne (originally conceived and designed as a trademarked logo in 1956) through items such as hats, t-shirts, keychains, stickers, postcards, ashtrays, tiles, ceramics, coasters, as well as scaled reproductions of the same, constitutes a criminal infringement of the copyright under Article 270 of the Penal Code, as it involves an "intent to obtain direct or indirect economic benefit" and is carried out "to the detriment of a third party." The Court interpreted the limitation of the panorama exception provided in Article 35(2) of the Intellectual Property Law (LPI) in accordance with the provisions of Article 40 bis of the LPI, stating that: "only the exploitation of the same with a strict or predominantly cultural dimension has been allowed, and any use of the same without its consent (from the owner) that exceeds the aforementioned purpose must be understood as unauthorized.".[9]

Raqueros Case

By decision dated April 5, 2006, the Provincial Court of Cantabria, decided that a sculptural ensemble known as the "Grupo de Raqueros", permanently installed in a public thoroughfare (Paseo Marítimo), commissioned by the Government of Cantabria or by the Santander City Council, is reproduced in an acrylic based material, intended for public sale as tourist souvenirs. According to the decision, the author keeps the exploitation rights over it, and the Provincial Court of Cantabria ordered some of the defendants to compensate the author for moral and economic damages, due to the distribution of unauthorized reproductions.[9][11]

Refer to this discussion for more information. Spanish Wikimedian MarcoAurelio provides an insight on the situation of the Spanish freedom of panorama.

See also: Category:Spanish FOP cases.


Stamps

See also: Commons:Stamps

. Communication with Spain's Philatelic Bureau suggests no public domain. Permission to scan images of Spanish stamps requires a specific request to the Sociedad Estatal de Correos y Telégrafos.

According to Spanish copyright law, while most official works are not protected by copyright, standalone images are specifically exempted, and the author retains copyright. So it is safe to assume that Spanish stamps are copyright their designers, in which case they are protected for 70 years after the author's death, or 80 years if the author died before 1988. If the designer is unknown, the stamp falls into the public domain 70 years after it was issued, or 80 years if issued before 1987.

Threshold of originality

Shortcut

See also: Commons:Threshold of originality

STS 4443/2004 notes that a work must have the characteristics of "uniqueness, individuality and distinguishability" to qualify for protection.[12]

STS 1644/2017 concerns architecture and states "The terms in which an architectural project is drawn up largely respond to the technical or functional requirements and compliance with urban regulations. When this is the case, the project or the architectural buildings are not protected by copyright in the part imposed by those technical, functional or normative requirements"; and more generally, "the factor of recognizability or differentiation of the work with respect to the pre-existing ones [is] essential to grant an exclusive right with moral and patrimonial aspects".[13]

See also

Citations

  1. ↑ a b Spain Copyright and Related Rights (Neighboring Rights). WIPO: World Intellectual Property Organization (2018). Retrieved on 2018-11-13.
  2. ↑ Royal Act 1/1996, of April 12, concerning Intellectual Property, consolidated text to 14 April 2018 (in Spanish) (2018). Retrieved on 2018-11-14.
  3. ↑ Ley de 10 de enero de 1879, de la propiedad intelectual (in Spanish). Retrieved on 2019-03-29.
  4. ↑ Rules for reproduction. Banco de España. Retrieved on 2019-03-29.
  5. ↑ Laukamp, Luis Castellví (2010-01-01). Arquitectura de autor: un análisis de ciertos problemas suscitados en torno a la obra arquitectónica y la propiedad intelectual. Pe. i. revista de propiedad intelec. Retrieved on 2024-03-25.
  6. ↑ SAP Madrid 195-2014, 16 de Junio de 2014 (in es). vLex. Retrieved on 2024-03-25.
  7. ↑ Cabedo Serna, Llanos (2022-12-22). Difusión cultural y explotación comercial de imágenes de obras arquitectónicas y plásticas: la excepción «libertad de panorama» a examen. Journal of Cultural and Creative Industries 1–19. Retrieved on 2024-03-25.
  8. ↑ Fernando Bondía Román, Los derechos sobre las fotografías y sus limitaciones, Anuario de derecho civil, ISSN 0210-301X, Vol. 59, Nº 3, 2006, p. 1111
  9. ↑ a b c Isabel Hernando Collazos, La excepción panorama y el uso comercial de las manifestaciones secundarias de las obras de arte - aproximación desde la Ley española de Derechos de Autor, RIIPAC: Revista sobre Patrimonio Cultural, ISSN-e 2255-1565, Nº. 10, 2018, págs. 1-53
  10. ↑ M. Teresa Castiñeira Palou, «El denominado toro de Osborne. Comentario a la SAP Sevilla, Penal, Sec. 1ª, de 31.1.2006 (MP: P. Izquierdo Martín)», InDret 3.2006M.
  11. ↑ Francisco Fernández Beltrán and Glòria Pérez-Salmerón, El copyright en cuestión. Diálogos sobre propiedad intelectual, Publisher: Universidad de Deusto, Editor: José-Antonio Gómez-Hernández, Javier Torres-Ripa ISBN: 978-84-9830-301-8, 2011
  12. ↑ https://www.poderjudicial.es/search/TS/openDocument/d42c9049784c7c02/20040821 p. 4
  13. ↑ https://www.poderjudicial.es/search/TS/openDocument/a95395d6789f5037/20170509 p. 9
Caution: The above description may be inaccurate, incomplete and/or out of date, so must be treated with caution. Before you upload a file to Wikimedia Commons you should ensure it may be used freely. See also: Commons:General disclaimer
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