Creators' Rights Alliance - Between a rock and a hard place - Appendix 2: Select European Laws
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Spanish copyright law is contained principally in the Copyright Act of 23 April 1996.[1] The law provides authors with non-assignable moral rights, and licensable exploitation rights. While the transfer of such rights was governed largely by ‘freedom of contract’ until 7 December 1987, the reforms of the Act of 11 November 1987 introduced a raft of measures to protect authors.

Contractual transfers are to be in writing,[2] and a publishing contract not made in writing is null and void.[3] Each conveyance should be limited as to rights, means of exploitation, territory and term. In the absence of such specifics, the statute states that the grant is limited to exploitation which is “essential to the purpose of the contract.” As regards territory, a transfer is presumed restricted to the territory where it is effected and in the absence of a provision on term lasts for five years. A transfer is ineffective to convey rights over “methods of use or means of dissemination that do not exist or are unknown at the time of the transfer”, as are global transfers of exploitation rights in works that the author may create in the future.[4] An author is also provided with a right to receive “a proportionate share in the proceeds of exploitation”,[5] although this right is subject to a list of exceptions in which lump sum payments are acceptable, including collective works, such as anthologies and encyclopaedias. Moreover, where lump sums have been paid, Article 47 confers a “success clause”, allowing for review in cases where “the remuneration of the author is manifestly out of proportion to the profits obtained by the licensee.” An assignee may only transfer the economic rights with the permission of the author.[6]

Special rules exist for certain forms of transfer:

(a) Publishing contracts are subjected to extensive regulation. They must specify territory, number of copies for the edition, modes and dates of distribution, language of publication, remuneration (in accordance with the principle of proportionate participation in proceeds. Failure to comply with a number of these requirements renders the contract void. The publisher undertakes obligations, inter alia, not to alter the work, to exploit it in conformity with the usual practices in the publishing profession and to attribute the author.[7] An author can terminate the contract for breach of obligations, if the contract is assigned or the publisher becomes insolvent.

(b) Special provisions also exist in relation to performance and broadcasting contracts. Assignments of performance rights are limited to a maximum period of five years.[8] An obligation is imposed to communicate the work within one year, or if provision is otherwise made, within a maximum period of two years. Authors are presumptively given rights to control such matters as the selection of the conductor of a musical work, or director of a performance of a play.[9]

(c) Audiovisual contracts are, as in many other countries, presumed to result in the transfer to the producer of the right to reproduce and distribute the film for public performance, and the performance right. The presumption does not, however, cover broadcast of the film, nor sale of reproduction in video form for home use.[10] Authors retain rights to remuneration for each of the forms of exploitation, with that relating to public showings of films being collected from the theatres concerned.[11].

(d) Works made for the press are subject to a special regime, contained in Article 52. Authors are presumed to retain rights to make use of those works in any form that does not prejudice the normal exploitation of the publication in which they have been inserted. If the work is not used within one month of submission, the author may make use of it as he sees fit. However, Article 52 does allow for remuneration of authors to be limited to a lump sum.

(e) Rights over “advertising creations” are presumed to be exclusively transferred to the advertiser or agency, unless the contract provides otherwise.[12]

[1] See A. & G. Bercovitz, in M. Nimmer & P. Geller (eds.), International Copyright Law and Practice (New York: Matthew Bender 2000, annually updated).

[2] Spain, Art.45.

[3] Spain,  Art. 61.

[4] Spain, Art. 43.

[5] Spain, Art. 46.

[6] Spain, Art. 49.

[7] Spain, Arts. 58-67.

[8] Spain, Art. 75.

[9] Spain, Art. 80.

[10 Spain, Art. 88.

[11] Spain, Art. 90.

[12] Advertising Act of 1988, Art. 23(2).

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