Propiedad intelectual |

What is intellectual property?

It is the set of copyright, personal (moral) and patrimonial (economic) rights that belong to people over the works of their creation.

In Spain, a distinction is made between intellectual property and industrial property, the latter being reserved for trademarks, patents, industrial design, designations of origin, etc.

What rules govern intellectual property?

The main national standard is the Consolidated Text of the Intellectual Property Law, approved by Royal Legislative Decree 1/1996 of April 12, which has been subject to some subsequent modifications, the latest being the one approved by the Law 2/2019, of March 1.

Also of note are the Community Directives on the matter, especially the Directive 2001/29/EC on copyright and related rights in the information society.

Important international standards include: the Berne Convention, signed in 1886 and revised on several occasions, and the WIPO Treaty of December 20, 1996.

What are copyrights?

Copyrights are of two kinds:

Moral rights, which are inalienable and cannot be waived, such as the right to recognition of authorship and the right to the integrity of the work, among others.
Economic rights, transferable and of limited duration in time, basically exploitation rights, although there are others (i.e., right to remuneration for private copying)

Who is the author of a work?

The author is considered to be the natural person who appears as such in the work. In some cases provided for by law, legal entities may have certain economic intellectual property rights.

In collaborative works, the rights belong to all the people who share authorship; however, in collective works, they belong to the person under whose initiative and coordination the work is edited and disseminated.

What works are subject to intellectual property?

All original literary, artistic or scientific creations expressed by any means or medium, tangible or intangible, currently known or that may be invented in the future.

What is excluded from the scope of intellectual property?

In general, what cannot be included in the previous definition, such as ideas, information, and all knowledge that is common property and not susceptible to appropriation.

The law expressly excludes legal and regulatory provisions, their corresponding drafts, the resolutions of jurisdictional bodies, acts, agreements, deliberations and opinions of public bodies and official translations of all of them.

What are the exploitation rights?

The law establishes the following exploitation rights:

Reproduction: the act of fixing a work in a medium that allows its communication and the obtaining of copies of all or part of it.
Distribution: the act of making the original or copies of the work available to the public through sale, rental, loan or any other means.
Public communication: the act by which a plurality of people can have access to the work without prior distribution of copies to each of them.
Transformation: the act of translating, adapting, or otherwise modifying a work in its form to create a different work. In the case of databases, their reorganization is considered a transformation.

Who owns the exploitation rights?

The exploitation rights belong exclusively to the author and may not be exercised without their authorization, except in the cases provided for by law. The author may assign all or some of the exploitation rights, depending on the type of contract they sign.

What are copyright exceptions?

Also called limits, these are cases in which the law authorizes the exercise of acts of exploitation without the need for authorization from the person holding the rights.

What is the public domain?

When exploitation rights expire, usually due to the expiration of their term, the works pass into the public domain and can be used by anyone as long as their authorship and integrity are respected.

Is it mandatory to register works in the Intellectual Property Registry?

No. Copyright arises at the moment of creation of the work. Registration is only a means of protection and proof of those rights.

What is “copyright”?

It is the Anglo-Saxon formula for designating only the exploitation rights of a work, without reference to moral rights. The symbol © associated with a name indicates ownership of exploitation rights. Normally, though not necessarily, it is followed by the expression "all rights reserved.".

Please note that:

Many academic publishers require authors to transfer all these rights as part of the submission process. Therefore, it is important for authors to understand what they are relinquishing by publishing their work: if an author unconditionally transfers the copyright of their work to the publisher of a subscription journal, they lose the aforementioned exploitation rights (except, perhaps, for personal or educational use), as these rights become the property of the publisher. The consequences are numerous, significantly impacting the publication, distribution, and use of the work.

There are contractual options alternative to exclusive assignment, such as partial assignment (in which certain rights are granted to the author and others—such as publication or distribution—to the publisher) or non-assignment (in this case, the author grants the publisher permission, through a license, to publish the work but retains the copyright). In the section on “Links of interest”Below are several examples of licenses.

Alternatives to the exclusive assignment of copyright

The principles of Zwolle They were declared in 2002 to claim a balance of rights between publishers, authors, academic institutions and knowledge funding agencies.

It is important to remember that the terms of a contract must be acceptable to both signing parties, and therefore, the author should try to modify the contractual terms if they are not fair by including an addendum (examples: SPARC, JISC/SURF Copyright, Toolbox…)

Therefore, there are options to the total and exclusive transfer of the exploitation rights of a work; the following are examples of these alternatives:

– Publication in open access journals (a comprehensive list can be found in DOAJ)

– Publication in subscription journals that allow self-archiving in open repositories

– Publication in subscription journals that do not require an exclusive assignment

– Publisher's license amendment

– Use of an alternative license (for example Creative Commons)

What is understood as teaching material in the digital environment?

Those materials used by teachers in the academic field and published on the intranet, virtual campus or digital platform (using programs such as Moodle, Sakai, etc. or of their own making) of teaching institutions as support for teaching.

From an intellectual property perspective, there are three types of materials:

1. Materials entirely developed by the teaching staff.
2. Original materials that include documents from other authors.
3. Completely unrelated materials.

In the case of type 2 and type 3 materials, attention should be paid to copyright issues and those affecting third-party documents that are incorporated.

In what cases can I use a document created by another author as teaching material without requesting authorization from the copyright holder?

In the following cases:

Documents extracted from databases and electronic journals subscribed to by the library of educational institutions and whose license allows it.
Documents in the public domain.
Documents licensed under Creative Commons.
A fragment of a text or an image to be included in an explanation, analysis, commentary, or teaching material, provided that the source and authorship are cited, and provided that it is incorporated as a quotation or for analysis, commentary, or critical judgment (art. 32.1 LPI).
Excerpt from a text or image to illustrate educational activities, even if not included in teaching material, by teachers of regulated education and excluding textbooks and university manuals (art. 32.2 LPI).

Who should I ask for permission to use other people's documents as teaching material?

If such use is not covered by the right of quotation, authorization must be requested from the rights holders. It is recommended to contact the publisher indicating:

Full document reference.
Name of the educational institution.
State the purpose (will it be published on the teaching intranet or will it be used strictly in the academic field and without profit motives)

What does the "Illustration in teaching" exception of the LPI allow?

The exception “Enlightenment in teaching (art. 32.2 LPI)“ allows the ”teachers of regulated education”:

Reproduction, distribution and public communication of small fragments of other people's works already published (or entire works, in the case of images)
University manuals and textbooks are excluded.
They must be reproduced faithfully and the authorship and source must be indicated.
The fragments must be relevant
Just to illustrate classroom teaching

Is a teacher intranet different from a website in terms of intellectual property?

No. Publishing documents on a restricted-access faculty intranet (only accessible to students and professors of a specific university) is not the same as publishing them on a publicly accessible website. Publishing documents in both cases implies:

Make a copy of the document on a server
Make public communication (although in the case of the intranet, it may be to a limited number of people)

In both cases, you must have the rights to reproduce and publicly communicate the document you want to upload, be protected by a limit, or have the authorization of the rights holder.

*Information about teaching materials taken from the website of FESABID.

Links of interest

Information about publishers and their permission policies

SHERPA-ROMEOSummary of the policies of more than 700 publishers
DULCINEA: Permissions for Spanish scientific journals
Blimunda: Permissions from Portuguese scientific journals and publishers