How did these 15 questions come about?
The questions have been put together by representatives of consumers' interests. National copyright experts from the 27 EU Member States provided answers under their respective jurisdiction. The European Observatory coordinates this work in the context of its Working Groups.
* Estas preguntas están también disponibles en Español.
Status date of the answers for Spain: 02/2021
1. What does copyright and related rights mean and cover, and is it the same all over the world?
7. Am I allowed to give a copy of a work protected by copyright to a family member or a friend?
10. What are copyright levies?
15. How do I know whether a work is offered legally or illegally online?
1. What does copyright and related rights mean and cover, and is it the same all over the world?
Copyright is the bundle of rights granted to authors who have created original works of art or literature and which are aimed at protecting the personal interests of the author in relation to his or her work (moral rights) and at affording the author the chance to obtain some economic benefit from the exploitation of the work (economic exclusive rights and remuneration rights).
Related rights are the economic rights granted to performing artists (musicians, singers, actors, directors of orchestra, dancers, etc.), to producers of phonograms and audio-visual recordings, to broadcasting organisations as well as to the makers of simple photographs. Related rights protection is also granted to some specific publications and the maker of a database may also be granted protection in some cases.
Copyright and related rights are not the same all over the world. Although international treaties and EU Directives (for the internal market) have significantly brought them together, each country has its own copyright law and decides the scope of rights granted to authors and owners within its territory.
2. Who owns copyright and how does copyright benefit creators, right holders, consumers, society, economy and culture as a whole?
The author, the person who creates a work, owns all copyright in it. Copyright is granted automatically, upon creation of a work (with no formalities required for protection). Copyright consists of moral and economic rights.
When several authors are involved in the creation of a work, all of them are joint-authors. In some specific cases (collective works and computer programs), the rights may originally belong to a legal person (someone who is not the natural author). The fact that the work has been created under employment or commission does not alter the creator’s authorship status– he remains the author, however, the economic rights in a work created under employment are presumed to be transferred to the employer, unless otherwise agreed by the parties.
Exclusive economic rights may be transferred (assigned) by means of contracts and may be licensed, on an exclusive and non-exclusive basis. On the other hand, moral rights, as well as statutory remuneration rights, can be neither waived nor transferred by the author. Upon the author’s death, all rights are inherited by the author’s heir/s, according to the rules of hereditary succession.
All these rights are granted only for a limited time: up to 70 years following the author’s death. Once protection has expired, the work enters the ‘public domain’ which means that it can be ‘used’ and ‘exploited’ by anyone and the author cannot exercise any exclusive rights over it. The author may choose not to ‘exercise’ his copyright, as if the work were in the public domain, but he cannot ‘put’ his work in the public domain. Public domain only operates by virtue of law.
It is understood that copyright benefits authors and owners during the term of protection because it affords them the possibility to obtain economic benefits from their investment. At the same time, copyright benefits consumers and the society, at large, because it serves as an incentive to invest in the creation of works and in the development of culture, markets and economy, from which we all benefit as a community. Furthermore, once the work is in the public domain, everyone can benefit and obtain a profit from it!
3. Do I automatically get copyright protection, for example, if I take a photograph with my phone, or do I have to register my work to get protection?
Copyright is granted upon creation of an original work. Performances, recordings and mere photographs are protected from the moment of making or recording.
The law does not provide a clear-cut concept of ‘original creation’ but some artistic merit or relevance has been traditionally required to obtain protection. In Spain, all photographs obtain some degree of protection: either as a ‘work’ (original creation) or as a mere photograph (related rights).
Works, performances, recordings (phonograms or audiovisual), mere photographs and databases may be voluntarily registered at the Intellectual Property General Registry, which has offices in all the major provincial capitals in Spain. Registration may also be done online.
4. What is copyright infringement? Can I get in trouble for copyright infringement? What if I wasn't aware that I infringed something protected by copyright?
An infringement of copyright (and related rights) occurs when the work (recording, performance, broadcast, photograph) is used without the prior authorisation of its rightful owner, in a manner that is not expressly permitted by the Law (for instance, by means of the limitations for quotation and parody, or for purposes of information, teaching or for the benefit of handicapped people).
Awareness and intent do not make any difference. Copyright infringements may be unwillingly and inadvertently committed (no intent to infringe is required). Infringement of copyright allows the owner to request court injunctions (temporary and permanent) and to obtain damages from the infringer.
An infringement of copyright (and related rights) may also qualify as a criminal offence, when it is done with the intent to obtain some economic profit (directly or indirectly) and in prejudice of third parties. Sanctions for copyright crimes include (cumulatively) fines and imprisonment.
5. Under which conditions can I use a work protected by copyright created by another? I was told that using works created by others is simply a quote and thus is always allowed.
A work protected by copyright created by someone else may be used as long as: (a) authorisation to do so by the author or copyright owner has been granted (authorisation may be granted by means of an express licence such as a traditional licence or a Creative Commons (CC) licence,, or implicitly, inferred from the facts, for instance, with an icon to ‘re-tweet’ a content available online); or (b) the use is expressly permitted under a statutory limitation, such as quotations and parody.
In order for use to be allowed as a quotation, several requirements must be met cumulatively:
- that only fragments of works (or, in the case of works of art, only isolated works) are being used;
- that the work is used for the purposes of commentary, analysis or criticism or as an illustration;
- that the use is meant for teaching or research purposes;
- that the source and name of the author is mentioned;
- that the amount of quoted work is restricted to ‘the extent justified’ by the purpose.
6. Am I allowed to use music protected by copyright as a soundtrack for a home video that I made and want to upload on a video platform?
Only in very specific circumstances will the unauthorised use of someone else’s music as a soundtrack for a homemade video posted online be allowed. Only when it qualifies as a parody (the video is making a parody of the music itself or its author) or a quotation (the music is used, to the extent necessary, in a specific scene of the video, and for purposes related to it).
The private copying exception could exempt the use of the music in the making of the video (provided that it is strictly synchronised, i.e. there has been no modification, and that it has been obtained from a CD or DVD bought by the user or lawfully downloaded) but it would not allow posting it online.
7. Am I allowed to give a copy of a work protected by copyright to a family member or a friend?
No. A private copy is only allowed for the private use of the person who makes it.
8. Am I allowed to download a work protected by copyright from the internet and does it matter which technology is used and whether I download only parts of the work?
The private copying limitation does not cover downloads, for private use, of works lawfully and freely posted online.
A work can be downloaded from the internet if there is a corresponding licence and as long as the conditions laid down in the licence are met. A licence to download may be granted in any written format, such as in the terms of conditions of use of a website, or a Creative Commons (CC) licence, or any other licence. A licence to download may also be implicitly granted, i.e. inferred from facts.
9. I tried to copy a movie from a DVD to my computer, but could not do it because of something called ‘Technical Protection Measures'. What is that and am I allowed to get around them in order to make private copies?
A TPM is a digital mechanism aimed at controlling and/or preventing access and/or copying of a protected work. Its circumvention is a copyright infringement.
When a TPM has been set on (the copy of) a work, the end-user cannot circumvent it; not even to make a private copy of it.
10. What are copyright levies?
Under Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, Member States may provide for limitations to the exclusive reproduction right in respect of copies on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rights holders receive fair compensation.
The Spanish legal system regulates that limitation in Article 31.2 of the Spanish Intellectual Property Act (while compensation is regulated in Article 25 of the same Act).
Up until 31 July 2017, compensation was financed from the general state budget. However, since 1 August 2017, it has been financed by a charge levied on the manufacturers, importers and distributors of copying equipment and storage devices.
11. Am I infringing copyright if I watch a movie by streaming it instead of downloading it from the internet?
If the film has been lawfully posted (made available online), without any technological measures preventing or restricting it, its streaming is neither an infringement nor requires an express licence. However, if the film has been illegally posted online, it is the owner of the web page on which it is posted that is committing an infringement, not the viewer, irrespective of the fact that intellectual property rights are being breached.
12. If copyright-protected works are included into my posts automatically by social media platforms, am I responsible for this and is this a copyright infringement? What if I link to them or embed them in my own website or blog?
Uploading a work online is an act of exploitation, as a work is being reproduced on a web server, which requires authorisation, by means of either a licence or a statutory limitation (for purposes such as quotation, parody, information, teaching or research). Linking is not formally regarded as an act of communication to the public listed in Article 20(2) TRLPI (Texto Refundido de la Ley de Propiedad Intelectual). However, according to current case law, in certain circumstances websites offering links to unlawfully posted (infringing) contents may be found liable for copyright infringement. Furthermore, websites that provide links to infringing contents in an ‘active and non-neutral’ manner and seek to obtain some economic profit may be subject to administrative injunctions and criminal sanctions.
However, Law No 21/2014, which modifies the Spanish Intellectual Property Act, changed how intellectual property rights are limited, as it allows news aggregators and search engines to link to insignificant excerpts of news published in newspapers and websites without authorisation on condition that the rights holders receive fair compensation.
Unlike simple links, embedded links for streaming unlawful films have been considered an infringement.
13. When I create a work and upload it online, terms and conditions of many sites ask for me to transfer my copyright to the site. Does that mean I lose all those rights in them for the future?
It depends on the terms and conditions of each licence and whether the rights are granted on an exclusive basis or not. In any event, any contractual clauses which are unclear will be interpreted restrictively, always in favour of the author. A licence will never cover means of exploitation unknown at the time of licensing. Moral rights, as well as remuneration rights, will remain at all times with the author (regardless of any contractual clause they have signed).
14. My avatar is based on my favourite movie star, cartoon character or sports club. Can I get in trouble for infringement of copyright or any other legislation because of this?
The image of a movie star (for instance, a photograph), a cartoon character or the logo of a sports club may all be somehow protected. Their use as an avatar could, strictly speaking, be considered an infringement. However, it is unlikely that a court would issue any injunctions against this type of usage, as long as it is for non-commercial purposes and no risk of confusion (with the original) derives from it.
15. How do I know whether a work is offered legally or illegally online?
The appearance and name of the website, including the URL, is usually a good indicator of its legal or illegal nature. Spanish law requires that private copies are made from a ‘lawful source’ without breaching the terms of access to the work or service.
