Intellectual property is any creation of the human intellect and is regulated in Royal Legislative Decree 1/1996, of 12 April 1996, approving the revised text of the Intellectual Property Act. It concerns creations of the mind: the inventions, literary and artistic works.
Unlike in other countries, Spain's Intellectual Property Law does not cover industrial property, which provides specific protection for the inventions, symbols, names, images, designs and models used in the market, or authors' rights. In relation to the University, just as in professional activities, the main aim of intellectual property is to acknowledge the authorship of the person or people who have created a particular work.
In the field of academia, there are many different ways of using other people's works, but these people must always be acknowledged as their authors. This principle, which is known as academic honesty, is often associated with avoiding what is known as academic plagiarism: passing off another person's work as your own.
Authors have a variety of rights known as authors' rights but, in practice, intellectual property and authors' rights are treated as synonyms in Spain.
Works and authors' rights
Article 10 of the Intellectual Property Act establishes that all original literary, artistic or scientific creations expressed by any medium or support.
The law provides the following non-comprehensive list of examples of works:
a. Written works: books, written texts or any other works of the same nature
b. Musical works: musical compositions, with or without lyrics
c. Dramatic works
d. Cinematographic works
e. Sculptures and works of painting, drawing and comics, inter alia
f. Architectural and engineering works
g. Graphics, maps and designs relating, in general, to science
h. Photographic works
i. Computer programs
When it is original, the title will also be protected as a part of the work.
Authors' rights do not protect mere facts or ideas. What they do protect is the way they are expressed, what makes the work original.
The following are not subject to intellectual property (Article 13 of the Intellectual Property Act):
- rulings of jurisdictional bodies,
- records, decisions, deliberations and findings of public agencies,
- legal or statutory provisions and their corresponding draft bills,
- the official translations of the above texts.
Any of these documents may be reproduced, distributed, publicly communicated or freely amended without any prior authorization by the rights holder.
As stated in the previous section, neither are ideas subject to intellectual property.
Authors and authors' rights
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.
Sometimes, authors choose to remain anonymous or use a pseudonym in order to hide their true identity from the public. In such cases, the authors' rights are exercised by the person who disseminates the work. However, the author still owns the authors' rights to their own creations.
The owner of the work is the natural or legal person who publishes and disseminates it under their own name.
For example, a magazine can contain the works of columnists, photographers, contributors and so on. However, each author's individual authorship of their individual contribution to the collective work is acknowledged when taken individually, but such contributors are not considered authors of the collective work.
All the authors involved in the creation of the work are considered its co-authors and share the authors' rights.
For example, in an illustrated book, one person may have provided the text and another the images. In a film or audiovisual work, the director, producer, screenwriters and composers of the original soundtrack are all treated as authors.
Authors' rights are comprised of the so-called moral rights and the economic or usage 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.
In order to observe moral rights, the author and the source of the work must always be cited.
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, 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.
- 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 in relation to their work but, unlike in the case of moral rights, economic rights can be transferred – exclusively or otherwise – to third parties, such as publishers or audiovisual production companies. The use of these works will require either permission from these rightsholders or a usage licence from organizations known as collection societies, such as CEDRO, VEGAP or SGAE in Spain. Third parties wishing to use a particular work must either obtain the author's express consent or fall under one of the exceptions to authors' rights provided by law.
Therefore, permission from the holder of the rights must usually be obtained (often for payment) before copying, transforming or disseminating a work in order to comply with the author's economic rights. However, there are many exceptions to this requirement for permission, particularly in the field of education.
For example, no one is allowed to publish a translation of a book without permission from the holder of the transformation rights, who is usually the publisher of the original work. Notwithstanding, thanks to the exceptions applicable to the world of education, it is perfectly possible to add, without the need for permission, a photograph of a famous painting such as Velázquez's Las Meninas in an exercise describing this work or comparing it with other works.
The usage rights of a work will last throughout the lifetime of the author and for seventy years after their 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.
For example, the original text of the Valencian 15th-century chivalric romance Tirant lo Blanc is in the public domain, so anyone can use it as they deem fit. This could include, for example, selling T-shirts with extracts of the work or translating it and making it available online. However, Vicente Aranda's 2006 film adaptation is still protected by authors' rights and using it requires authorization of the original book in film format.
Similarly, Lewis Carroll's Alice's Adventures in Wonderland, published in 1865 with illustrations by John Tenniel, is also in the public domain. Even so, the drawings in Walt Disney's 1951 adaptation Alice in Wonderland are still covered by authors' rights and trademark law, which means that anyone wishing to use them also needs authorization.
The law sets out limits or exceptions to authors' rights that permit the exercise of usage rights without first having to secure their 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 order to exercise the usage rights to the work, you must meet certain mandatory requirements, whatever the case. Most critically, you must mention the author and source of the work. In addition, each limit has its own requirements. The law also provides that these limits can never be construed in a way that results in unjustified harm to the author's legitimate interests or that detrimentally affects the normal usage of the work.
The two legal limits that may be relevant to the UOC's activities are:
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.
This limit, the citation right, is the one most commonly used at universities by both students and teaching staff. In order to exercise it correctly, you must follow the citing recommendations.
Teaching staff in formal education settings may carry out acts of reproduction, distribution and public communication of small excerpts of works, excluding university handbooks and textbooks, without authorization, if this is done in class for the purpose of illustrating their education activities, provided that the works have already been disseminated and the author's name and their source are mentioned, unless such mention is technically impossible.
The UOC is firmly committed to respecting intellectual property rights. This commitment can be seen in the agreements concluded by the University with rightholders for the use of resources outside the classroom and also in the licences agreed with CEDRO and the resulting financial remuneration for the creators of the work and the publishing industry. The UOC was the first university in Spain to regulate the use of resources in the classroom with this collection society, and no university in Spain allocates more financial resources to this than the UOC.
The right to private copying is one of the limits to the right of usage of works, more specifically to the right of reproduction. It is governed by Art. 31 of the Intellectual Property Law (LPI). Anyone may reproduce a work for their own private, non-professional and non-business use as long as it is not for commercial purposes and it is made from a lawful version of the original work.
This does not apply to databases or software.
In the educational environment, yes, under the citation right. What this essentially means is that you must always cite the author and the source and restrict your use of the existing work to the minimum necessary for it to be understood for the purposes of analysis, commentary or critical judgement.
Furthermore, if the works are in the public domain (i.e. if the author has been dead for more than seventy years) or not subject to intellectual property (court rulings, administrative acts or documents with open licences), regardless of whether or not the use is for educational purposes, you must remember to cite their author and source.
Additionally, you may copy works for your own private use, without authorization, except in the case of databases and software.
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.
Having access to free content does not mean in any way that you are entitled to appropriate information found online, and much less to use it in contravention of the law: reproducing, transforming and disseminating the works of other people.
When does a work go into the public domain?
Works in the public domain are those whose usage rights have expired because the legal protection period has elapsed. This is usually seventy years from the date of the author's death. Such works can be used by anyone provided that they respect their authorship and integrity.
For example, the Spanish poet Antonio Machado died in 1939. His work has been in the public domain since 1 January 2020. This means that, since that date, any publishing house has been free to access his manuscripts, publish them in a book and sell them, or simply disseminate them on the internet.
There are licences (such as Creative Commons licences) under which works can be placed on the same level as the public domain from the time of their creation. Examples include Wikimedia Commons images with attribution licences (under which the author must be cited) or in the public domain. Authors are always free to specify more or less stringent limits on their works.
For example, in 2012 the user arturobat published an audio file with the noise of a public library on the platform Freesound under a licence requiring only the recognition of his authorship. This can be put to all kinds of uses, provided that the author is mentioned.
What is copyright (©)?
Copyright is a term that indicates who the holder of the usage rights is. It is represented by the symbol ©. This can be either the actual author or, if applicable, the person to whom they have assigned these rights, i.e. the assignee of the usage rights.
The use of this symbol is not mandatory, and it does not provide any specific protection. Under Spanish and European law, it fulfils a merely aesthetic function which is usually associated with the "all rights reserved" concept already generally envisaged by law.
What are open access licenses?
Creative Commons licenses are useful for authors wishing to make their works or services available to the public in a (more or less) open system.
They represent a mid-point between the "all rights reserved" of copyright and the "no right reserved" of the public domain, entailing instead "some rights reserved". All rights not expressly granted by the license are reserved.
Despite the extent of the terms of the license, the licensor (who may be the author or a third-party rights holder) reserves the right to disseminate the work under different conditions than those of the general license, or they may withdraw it at any time. The Creative Commons movement seeks to return sovereignty over their work to the author.
The conditions that may be applied to a work are as shown below, and they may be combined as is most convenient:
- Attribution: this allows the work to be copied, distributed and communicated to the public with the condition of naming the author in the credits. It must feature in all Creative Commons licenses as it is in line with the moral right of recognition of authorship of the work.
- Non-commercial: this allows the work to be copied, distributed and communicated to the public, providing no commercial uses are made of it. For commercial uses, the express authorization of the rights holder is required.
- No derivative works: this allows only exact (unaltered) copies of the work to be copied, distributed and communicated to the public. It does not authorize derivative works.
- Share alike: this allows derivative works (transformation) to be made and their distribution or subsequent communication to the public, as long as this is done under an identical license to the one held by the original work.
It should be borne in mind that there is one combination that is not possible: a Creative Commons license cannot be created with the "No derivative works" and "Share alike" conditions, as the latter condition was designed to communicate derivative works.
In addition to the public domain licence, the less restrictive Creative Commons BY (Attribution) licence authorizes anyone to copy, distribute, transform and publicize the work, for any purpose and for all types of usage, for free and for the duration of the protection.
The UOC is committed to putting the knowledge it generates back into the hands of the public. For this reason, and as provided in the UOC's 2019 Open Knowledge Action Plan, all teaching materials commissioned by the UOC are eventually published under Creative Commons 3.0 licences.
In November 2013, Creative Commons published version 4.0, which is different from the previous versions in that it is international in nature, ie this version has not been adapted to the internal legislations of each country. Consequently, and to avoid possible legal implications, the license used by the UOC will continue to be version 3.0.
The following are the six combinations developed by Creative Commons:
Creative Commons licences were created to allow anyone with the usage rights of the work (i.e. the creator or, where applicable, the third-party assignee) to use the work. Licences are given free of charge and do not require their creators or holders to register a licence in any way in order to use it.
To publish one's own work with a Creative Commons license, it is simply necessary to indicate the specific Creative Commons license symbol in the document. These symbols can be found on the Creative Commons website and are free of charge.
If the specific license with which the work is to be published is known, all the necessary information about the licenses can be found here: https://creativecommons.org/licenses/?lang=en.
If, by contrast, it is not exactly known which combination is of most interest, this link can be visited, which acts as a guide until the most suitable combination for one's own needs have been found: http://creativecommons.org/choose/?lang=en.
GNU licences are open-source software licences under which authors can authorize the free use and development of their software.
There are various GNU licenses, most notably the GNU General Public License (GPL) and the GNU Lesser General Public License (LGPL or Lesser GPL).
This is a type of software license that permits the copying, distribution (commercial or otherwise) and modification of the source code, providing that any modification continues to be distributed under the same license.
It is a license that is used more in the area of software and ensures the end users the freedom to use, study, share (copy) and modify the software.
Its aim is to declare that the software covered by the license is free software and to protect it from attempts at appropriation that restrict these freedoms to users.
The GNU LGPL license (formerly known as the GNU Library General Public License) allows the freedom to share and modify the software to be guaranteed, ensuring that the software is free for all its users.
It permits the same as the GNU, but the main difference with the GPL license is that the LGPL can be linked to a non-GLP program, which may be free software or non-free software.
A work is protected by authors' rights by the mere fact of its creation: it does not require registration or any other formalities. However, some laws and national government authors' rights offices do provide for the registration of the works. These systems help address the issues that can arise, among others, from disputes relating to ownership or creation, sales or assignments and transfers of rights, as they provide evidence and publicity of the rights registered in them.
In Catalonia, the office in charge of such matters is the Registre de la Propietat Intel·lectual de Catalunya (Intellectual Property Register of Catalonia). Although there is only one register for the whole of Spain, it is decentralized and split into regional registers.
In spite of being generally protected under the Intellectual Property Law, software is – just like literary, artistic or scientific works – an intangible asset requiring legal protection. The instructions that together make up a piece of software are the product of human ingenuity. This means that both the programs themselves and their creators must be effectively protected.
The protection of computer programs by authors' rights has come about due to the realization that the protection provided by patents is insufficient. The rights on computer programs, their successive versions and derivative programs may be registered in the Intellectual Property Register.
The characteristic features of the current protection are as follows:
- Registration is not mandatory.
- It is presumed that whoever appears in the Register as rights holder of the program is the real rights holder, so the onus is on anyone disputing this point to prove otherwise. Registration is not taken into account to determine the start of the program protection period.
Although it is true to say that registration with the Intellectual Property Register is very often complicated and not of any great use in terms of source code, there are other alternatives for protecting this.
A trademark is a distinctive sign that indicates that certain goods or services have been produced or provided by a specific person or company. Article 4 of Law 17/2001, of 7 December 2001, on trademarks, defines it as "any sign of graphic representation that serves to distinguish one company's products or services from those of another".
Protection of the trademark is obtained through registering it, and in some countries also through its use.
Although trademarks can be protected by their use, it is advisable to register them by submitting the relevant application to the appropriate office according to whether the registration is national, EU or international. Registration of a trademark will provide greater protection, especially in cases where there is a dispute with an identical trademark or one that is so similar that it may cause confusion.
Therefore, although it is not compulsory to register the trademark, it is advisable, since this grants exclusive rights that prohibit the unauthorized use of the trademark.
A patent is a series of exclusive rights that guarantee the right to operate as exclusive the invention made for a limited amount of time, which is twenty years in the case of Spain.
In Spain, it is regulated by Law 24/2015, of 24 July, on patents.
For an invention to be covered by a patent, it has to fulfil three requirements:
Novel: an invention is considered as new when it is not included in the state of the art, ie when it has not been published prior to the date of submission of the application.
Inventive step: it is considered that an invention involves an inventive step if it does not result from the state of the art in a way that is evident to an expert in the matter.
Industrial application: it is considered that an invention is enabled for industrial application when the subject of the invention can be manufactured or used in any class of industry, including agriculture.
In accordance with the requirement of being novel, a research result cannot be published before patenting it, as a publication prior to the submission of the patent application would result in the loss of the novelty of the invention, which would then become non-patentable.
Utility models protect inventions of a lower inventive rank than those protected by patents, consisting of providing an object with a configuration or structure from which a utility or practical advantage for its use or manufacture is derived. For example, a mop bucket.
The device, instrument or tool that can be protected by the utility model is characterized by its "utility" and "practicality".
A domain name is the Internet address of a company, organization, association or person that allows their information and their products and services to be accessible worldwide over the Internet.
There are three levels of Internet domains:
- Top-level domains.
- Generic: These are the ones ending in ".com", ".gov", ".edu", ".org", etc. and they are allocated by institutions designated by the ICANN.
- Country code: these are the ones that identify the country, such as ".es" and ".ny".
- Second-level domains: this is the name that is registered when applying for a domain, eg in uoc.edu, "uoc" is the second-level domain.
- Third-level domains: ".com.es", ".nom.es", ".org.es", ".gob.es" and ".edu.es".
For a work to be protected, the author simply has to declare their authorship in a visible place in the publication without the need for any additional procedure.
Similarly, a number of options are available so that authors wishing to do so can register their works, identify them uniquely and grant user licenses with which the permitted uses of the work for users can be described.
Not usually. Works include any original literary, artistic or scientific creation expressed by any method or on any medium, be it tangible or intangible, that is currently known or that may be invented in future.
The author of a work enjoys all the benefits provided by the law from the moment of its creation, and therefore does not need to do anything else to protect their rights: no one may use a work without the necessary authorization of the people who created it.
However, there are various systems for the registration and identification of works:
- Intellectual Property Register
- Safe Creative
- Legal deposit
- Other: document repositories
The Intellectual Property Register
The Intellectual Property Register is an agency envisaged in the Intellectual Property Act, conceived as one of the systems for protecting intellectual property rights through the proof and the publicity of the rights that are registered with it.
For the work to be protected, it is not necessary to register it with the Intellectual Property Register, as the work is protected due to the sole fact of its creation. Therefore, registration is declaratory, not constituent.
The advantages offered by registering with the Register are that it provides qualified proof that the rights registered exist and belong to their holder, except in the case where the opposite is proven, and publicity is given to the rights registered.
Safe Creative is a private register of contents on digital media.
For authors, registering their work with Safe Creative is the proof of authorship of a register with irrefutable technological guarantees: deposit of the work, registration of multiple digital imprints and double time stamping; for the users of the works it provides certainty about the license and permitted uses.
Since registration with a public register is not compulsory in order to acquire intellectual property rights or to obtain the protection that the law provides to authors and other intellectual property rights holders, registering the material in a private register, as in the case of Safe Creative, offers evidence of authorship. The essential purpose of registration is to be able to show that a work has been created before that of a third person for the purposes of proving its originality.
To this effect, users can register their works using the service and leave a record of their authorship and intellectual property rights, since the aim of all of this is to provide a mechanism of proof in the event of cases of plagiarism or improper use of works of intellectual property.
Legal deposit is the obligation for printers and publishers to deposit copies of all of their publications of all types disseminated on any medium with the aim of collecting and preserving all the production published in Spain and enable access to it. Authors who self-publish their works also have this obligation.
ISBN (International Standard Book Number)
The ISBN is a unique numerical identifier created for every book, based on a standardized combination of numbers that indicate a country or original language code, the publisher, the number of the article and check digits, which permits the identification of any book and the use of IT tools to locate it.
The ISBN is allocated by the Spanish ISBN Agency to publishers or authors who self-publish the works.
ISSN (International Standard Serial Number)
The ISSN is an internationally recognized numerical code for the identification of serial publications (journals, yearbooks, newsletters, collections of dossiers, etc.).
The National ISSN Centre of the country of publication is responsible for allocating this number. In Spain, it is based in the National Library.
When a journal is published in paper and electronic format, a different ISSN number is allocated for each format.
Identifiers of works in print format:
- ISBN (International Standard Book Number)
- ISSN (International Standard Serial Number)
- NIPO (Official Publication Identification Number)
- ISAN (International Standard Audiovisual Number)
- ISMN (International Standard Music Number)
- ISRC (International Standard Recording Code)
- ISWC (International Standard Work Code)
Identifiers of works in digital format:
- HANDLE and DOI
In the event that anyone made use of it in any way that is not permitted by law without the consent of the rights holder, the latter may, without prejudice to any other actions that may correspond to them, seek the cessation of the illegal activity of the offender and demand compensation for the material and moral damages caused.
To be able to detect possible unauthorized uses of the work, a plagiarism detection program can be used, which allows documents that coincide partially or completely and are disseminated on the Internet to be scanned.
For more information about how to detect plagiarism and protect a work, the academic plagiarism dossier produced by the Library can be consulted.