Spain’s Intellectual Property Law (IPL) states that intellectual property rights have a duration corresponding to the life of the author plus another 70 years (article 26). This is a general rule and refers to literary, artistic and scientific works above all.
However, a recent judgement of the Supreme Court denies said affirmation with regard to authors of works who died before 1987 (as stipulated by Transitional Disposition 4 of the IPL). For said authors, the duration is the author’s life plus another 80 years, pursuant to the previous IPL, dating back to 1879.
Specifically, the judgement of 13th April 2015 of the Supreme Court put an end to the dispute between the heirs of G.K. Chesterton and the Spanish publisher Enokia, S.L.
The heirs of the British writer, through the The Royal Literary Fund, called for the works of the author to be ceased to be placed on the market by the publisher, under the consideration that said works are still not in the public domain, in accordance with the stipulations of the Spanish Intellectual Property Law of 1879 applicable at the time of the death of Chesterton in 1936. Enokia alleged that this violated article 8.7 of the Berne Convention for the Protection of Literary and Artistic Works, according to which the duration of the protection of a right «shall not exceed the term fixed in the country of origin of the works», alleging that in the United Kingdom, the protection is for a shorter term, with the works already having come into the public domain.
However, the Supreme Court understands that with the entering of Spain into the European Community, article 8.7 of the Berne Convention must be interpreted with respect to the general principle of non-discrimination in the European Union. It quotes as a reference, among others, the judgement of the European Union Court of Justice (EUCJ) in the case of La Bohème (C-360/00), in which the recognition in Germany of the copyright of the famous Puccini opera was questioned, given that Puccini had passed away in 1924 and in his home country Italy the term of protection was shorter. The EUCJ understood that the European Community Treaty does not accept that the term of protection granted by the regulations of a member State to the works of an author who is a national of another member State, may be less than that conceded to the works of its own nationals. The consequence of the judgement of the Supreme court is that the works of Chesterton are still protected in Spain, and meanwhile they have been in the public domain in the United Kingdom for some years.
Without doubt, this may open the door to future claims from heirs of authors who died before 1987, as the term of protection shall be extended for a further 10 years.
Vilá Abogados
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12th June 2015
