Intellectual property is a set of rights that the law affords to authors to protect their literary, artistic or scientific works. They divide in moral and economic rights. Law also considers the related rights, including other right holders such as performers, phonograms’ producers, etc. Right holders can be natural or legal persons.
Limitations and exemptions are uses allowed by law to guarantee some cultural, social and educational functions.
They have been set at articles 31-40 of the Spanish Law. It should be highlighted the article 37, about reproductions and other public communication acts, that libraries, museums, archives and institutions of public ownership are doing for research and preservation.
A work is in the public domain when holder's rights have expired. In Spain, rights are in force during author’s lifetime plus 80 years after his death or death declaration for authors who died before 7 December 1987, and they are in force 70 years for authors who died after the mentioned date.
Related rights have specific terms and there are some particular situations that should be considered to identify which rights are covering a work, which are the following:
Author’s lifetime and 80 or 70 years plus for heirs, (art. 26)
Author’s lifetime and 80 or 70 years plus for heirs, from the date of last coauthor’s death (art. 28)
80 or 70 years from the date of publication or distribution of the work. If it is published in parts, it should be each part calculate individually (art. 28)
80 o 70 years from the date of publication. If pseudonym is revealed, it will have the same rights as author’s work (art.27).
Related rights: They include artists and performers (art. 112); phonogram producers (art. 119); audiovisuals producers (art. 125); broadcasting organizations (art. 127)
50 years from the date of publication or distribution.
25 years from the date of publication or distribution (art. 128)
Unpublished works in the public domain and unprotected works
25 years (art. 130)
The coming into the public domain is considered from 1 January of following year.
Creative Commons promotes the assignment of the Public Domain Mark, http://creativecommons.org/weblog/entry/22940. This initiative has been supported by Europeana http://www.version1.europeana.eu/web/guest/news/-/blogs/europeana-and-creative-commons-launch-new-public-domain-mark. Europeana provides a tool to calculate if a work is or not in the public domain. http://outofcopyright.eu/
Orphan works are copyrighted works for which the location of right holders is impossible. They cannot be used. European Commission has presented a proposal of Directive about orphan works. Its aim is to facilitate their use after applying a sure protocol to help heritage dissemination as well as to respect holders’ rights. When this Directive will be approved it must be introduced into Spanish law through a law.
The Creative Commons licenses http://creativecommons.org were created in 2001. One of the lawyers of CC - one of their more prominent promoter - is Lawrence Lessig. The purpose of these licenses is protecting author’s works and making easier its diffusion for non-commercial uses. These licenses allow reproduction, distribution and public communication of any work, and require a unique condition: to cite the author. Some additional conditions may be added: non-commercial purposes, without derivative works, share alike … The author himself is who select them (Catalan portal at http://cat.creativecommons.org/llicencia/)
Nowadays the use of CC licenses is growing, especially in web context, because they inform of uses and activities allowed without previous permission. Many governments and academic sectors have opted for this model. There are other open licenses, but CC is most extended. CC is based on intellectual property.
The citation allows to introduce pieces from other works into the own one, even if they are entire works, in the case of plastic or photographic works isolated, whenever they are works already distributed, for citation, comment or criticism judgment. The author and source should be cited. There are many citation systems at bibliographic level, and also tools that may help to research methodology.
Institutions that own documents and works usually ask for being cited as owners of a work. Their name should be mentioned as the institution indicates.
At the electronic context, licenses are contracts between provider and user where are specified access conditions to document. They usually include: contract object, parts, use clauses, use restrictions, price, term and contract completion, as well as legislation in force.
These conditions should be respected once the license is accepted, as well as instructions about uses and permissions.
It implies the reproduction and public communication when the surrogate is made available at the Internet. A previous permission from rights holders is necessary for the second action described.
The steps to follow before deciding whether or not a work can be digitized and put available on the network are:
- Identify the nature of work (public documentation or subject to intellectual property rights)
- Identify the different rights holders: to analyze the work and its different possible authors (author, translator, illustrator...)
- Identify if these right holders are in the public domain or may have rights
- Locate rights holders and ask them for permission
- Keep all the documentation produced
The research of right holders is a very complex task if they are not current authors.
First, they should be checked data as authors’ name, place and date of birth and death. Encyclopedias and references sources may be useful. Then, once this information is sure, it is needed to contact authors. It is usual to contact publishers, management rights societies, Intellectual Property Registry, professional associations and institutions that have been in contact with authors (for ex. A library which has received the authors’ collections).
CEDRO provides a payment service of research of rights holders.
When it comes to recent rights holders (last 25 years) it is easier to find a contact and so, the permission. Keep the permission and all the documentation produced.
When it comes to older authors, it is sometimes impossible to get permission. This is the case of the orphan works, above mentioned.
While is not a legal solution, the use of orphan works without permission implies a risk.
The Ministry of Culture gives access to several links to the fees of collective rights management societies. Prices for use are showed at each file. If an author do not belongs or cannot be found at these societies, it should be needed to contact the author’s agent, editorial firm or the author himself, to get a budget.
Only the works in public domain and those under a CC license. Both author and source should be always cited.
He can make registration at the Intellectual Property Registry or using a private registry such as Safecreative, he can also make a notarial deposit, or do nothing. The law protects him anyway, but if is not being used any tool of protection, it would be more complex to get evidences in case of lawsuit.
If work has been published, the legal deposit number and the ISBN number are two more evidences.
The symbol © identifies right holders. It is a symbol used worldwide. This symbol can be used without any previous procedure. When it is being used a CC license, should be chosen one of the possible licensing options.
Collective rights management societies usually provide information. Some libraries and other organizations also give information on this issue:
Universitat Pompeu Fabra
Universitat Politècnica de Catalunya
Universitat de Barcelona
Universitat de Girona
Netvibes Fesabid Grup de Biblioteques i Propietat Intel·lectual
Ministerio de Cultura