Re: Spanish Copyright Law

Antonio Mill <antonio[_at_]mille.com.ar> wrote:
>
> On July 15, 1997, Tammy Scissom <tammy.scissom[_at_]sewanee.edu> wrote:
> >
> > Terry Carroll <carroll[_at_]tjc.com> wrote:
> > >
> > > On Fri, 11 Jul 1997, Tammy Scissom <tscissom[_at_]sewanee.edu> wrote:
> > > >
> > > > I have a compilation of plays written by Miguel de Unamuno. The book
> > > > was copyrighted in 1959 by his heirs. One of our professors wishes to
> > > > use one of these plays, which was written in 1899. Is anyone familiar
> > > > with the copyright law in Spain?
> > >
> > > I see from your signature that your institution is in Tennessee. As
> > > long as the professor plans to use the work in the U.S., under the
> > > principal of national treatment, U.S. law, not Spanish law, applies.
> > >
> > > Do you know when the work was first published in the U.S.?
> >
> > I'm not sure if was ever published in the US. It was first published and
> > copyrighted in 1959 in Madrid and republished in 1973. However, the play
> > was written in 1899. What we're not sure of is whether the play is public
> > domain or not because it's included in this copyrighted anthology.
>
> About Tammy's inquire:
>
> 1. Miguel de Unamuno died in 1936. The *post mortem* protection term for
> the original work is expired whether you apply the UE (70 years) or the
> Spanish Law (60 years) or the US Copyright Act one (50 years).
>
> 2. The inclusion of the work in a compilation do not prolong the
> protection term of the included work as such.
>
> 3. Any original work of Miguel de Unamuno is in the public domain at the
> present in any country of the world. Also in USA, as provided for in
> sections 303 and 302.

Hello, from Spain.

As Unamuno died in 1936, we have to apply theIP law of 1879. The term of protection of the works of Unamuno is of 80 years since the moment of his death. Therefore, they are *not* in the public domain.

The Directives of the UE are not directly aplicable in the countries of the UE, unless we have a certain number of conditions.

After this, the relevant questions are two: 1) Wether the Spanish law may be applied in the place the work might be used (which I don't know), and
2) If the State of Spain consider itself competent to protect an infringmnent, independently of the place the violation may take/have teken place.

In this point, we have to distinguish the criminal infringement and the civil infringement.

For a criminal infringement, the Spanish Courts are considered competent to judge a copyright violation, independently of the place it happens, when the interest of an Spaniard may be influenced. (This is the case: Unamuno's heirs are Spanish).

Currently, there would be a criminal infringement if the conscious use of the work is done with the purpose of obtaining a profit (it also depends on the time of the infringement).

The following qwestion is if the Criminal Spanish Courts might act ex officio in this case: they cannot, they need the command of people whose rights might have been violated.

If they consider the violation, what material law would they apply? The Spanish law, in any case.

We still have the problem of the application of the decision in a foreign country. Its execution is difficult, but possible.

For a civil infringement, the problem is more difficult, but in turn, less important, since the paintiff only can demand a compensation.

But the main point is that the Spanish person whose interests may be influenced may very surely demand to the infringer in the State of the infringement according to its own laws, if it is a country that belongs to the Bern Convention (Spain is).

The current general term of protection of the IP Laws in Spain in not of 60 years, but of 70, according to the Spansh laws, not to the EU Directive. The UE Directives are not directly applicable in the member states, unless the countries have incorporated it to their internal law, or occur special requirements.

Greetings from Spain,

Carlos de Miguel
Sanchez y de Miguel
Castellana 177 - 28046 Madrid
Voice: +34 1 579 30 83 - Fax: +34 1 544 74 67 <ectil06[_at_]sis.ucm.es> Received on Wed Jul 16 1997 - 23:53:29 GMT