Authors and authors' rights

Who is the author?

The author is the natural person who creates a literary, artistic or scientific work.

The owner of the authors' rights of a work is the person who created it.

Sometimes, works are created by more than one person, as is the case of collective works and works that entail collaboration among a number of people. In the former case, the owner of the work is considered to be the natural or legal person who publishes it and disseminates it under their own name. However, the authorship of each individual author is recognized with regard to their contribution to the collective work individually considered, albeit not as part of the collective work. In the latter case, all the authors who contribute to the creation of the work in collaboration are considered to be co-authors and share the authors' rights in the work.

In some cases, the authors wish to remain anonymous or use a pseudonym to hide their true identity from the public. In these cases, the author continues to be the owner of the authors' rights of their works.

What rights does the author of a work have?

Authors' rights are comprised of the so-called moral rights and the economic or usage rights.

 

Moral rights

Moral rights are those that enable the authorship of a work to be recognized and to oppose the fact of this authorship being changed in a way that may damage the reputation of the creator.

These rights are irrevocable and inalienable and will always stay with the author of a work and their heirs when the author has died. They are defined in Article 14 of the Intellectual Property Act:

  • To decide whether the work should be disseminated and in what form.

  • To determine whether this dissemination should be done under their own name, under a pseudonym or sign, or anonymously.

  • To demand the recognition of their status as author of the work.

  • To demand respect for the integrity of the work.

  • To modify the work, respecting the rights acquired by third persons.

  • To withdraw the work from the market.

  • To access the sole or rare copy of the work when it is in the possession of another.

 

Economic or usage rights

Usage rights are those that permit the rights holder to receive remuneration for the use of their works by third persons.

They include the following rights:

  • Reproduction right: this includes any form of reproduction, such as photocopying, downloading, printing, scanning, photographing, etc.

  • Distribution right: this is making the original or the copies of the work available to the public, on tangible media, by means of its sale, rental or loan, or in any other way.

  • Public communication right: this is any act whereby a number of people can have access to the work without the prior distribution of copies to each one of them. The communication is not considered to be public when it is held in a strictly domestic sphere that is not part of or connected to a dissemination network of any type. Posting the work on the Internet would be a public communication act.

  • Transformation right: this comprises the translation, adaptation and any other modification to the form of the work in such a way that a different one is derived from it.

The author has the exclusive usage right of their work, although, unlike moral rights, these rights may be assigned to third persons, both exclusively and non-exclusively. Should a third person wish to make use of them, they need the express consent of the author or they should observe any of the exceptions to authors' rights set out in law.

Assignment of usage rights: non-exclusive/exclusive

The assignment of rights consists of the transfer of one or more usage rights of a work to a third person in such a way that permits them to exercise them legitimately despite not being the author of the work. This makes them the holder of the usage rights of the work. The transfer of these rights may take place when the author dies (mortis causa) or due to inter vivos acts. This latter form of assignment may be exclusive or non-exclusive.

The assignment of rights under a system of exclusivity attributes to the assignee (ie the person to whom the rights are assigned) the faculty, within the scope of the assignment, of using the work to the exclusion of other people, including the assignor themselves. It also grants legitimacy to pursue any infringements that affect the rights that have been assigned to them.

The assignment of rights under a system of non-exclusivity, by contrast, attributes to the assignee the capacity to exercise the right or rights assigned according to the conditions of the assignment, but without excluding the exercise of the rights by third persons or by the person assigning them.

How long do usage rights last?

The usage rights of a work will last throughout the lifetime of the author and for seventy years after their death or declaration of death. In the case of authors who died before 7 December 1987, the rights are maintained up to eighty years after the death of the author.

  • Example: The original text by Lewis Carroll and the illustrations by John Tenniel of the book of Alice’s Adventures in Wonderland, published in 1865, are in the public domain, but the adaptation of this original book in the form of a film and the cartoons adapted by Walt Disney in 1951 are still protected by authors' rights and trademark rights, and their use requires authorization.

What are related rights?

Related rights, sometimes referred to as neighbouring rights, are the rights relating to protecting the legal interests of specific people who contribute to making the works available to the public.

Examples of these rights would be those held by singers when singing a song, and also those of an actor when they perform a script.

What uses can be made without the owner's authorization?

The law sets out limits or exceptions to authors' rights that permit the exercise of usage rights, which are initially exclusive to the author, without first having to secure their express authorization. In some of these exceptions, despite not having express permission, the exercise of these rights generates a right to economic compensation in favour of the author or owner. These are regulated in Articles 31 to 40 of the Intellectual Property Act.

In all cases, to be able to exercise the usage rights on the work, mandatory requirements must be met: citing the author and the source of the work. Beyond this, each limit demands its own requirements. The law also establishes that they may never be interpreted in a way that their application causes undue damage to the legitimate interests of the author or are in detriment to the normal use of the work.

The two limits set out by law that may have an effect on the work of the UOC are the following:

  • Citation right

This consists of the inclusion in one's own work of excerpts from other works of any kind. They must be works that are already disseminated (ie already in circulation) and the inclusion must be by way of a citation or for their analysis, comment or critical opinion. This use may only be made for teaching or research purposes, in the justified measure for the aim of this inclusion and stating the source and the name of the author of the work.

In the case of photographs, it is possible to use the entire photograph under citation rights, providing the conditions required by law are met.

  • Illustration for teaching

Teachers in official education may reproduce, distribute and publicly communicate small excerpts of works, excluding text books and university manuals, without authorization when these acts are carried out in the classroom to illustrate their educational activities, providing they are works that are already disseminated and, except in those cases where it is impossible, the author's name and the source are included.

Are authors' rights also on the Internet?

Yes. All the rights reserved for authors continue to be reserved on the Internet, despite the ease with which information can be copied and disseminated.

Although free content can be accessed, this does not in any way authorize the appropriation of the information contained on the web, much less making use of it that is contrary to the law.

What is the right of remuneration for private copying?

The right of remuneration for private copying is the right that authors have to receive recompense for the private copies that users of their works might make, ie the copies made in a domestic and family sphere, without making collective or commercial uses of them.