In one of our tickets Previously, we saw how creators, if they take a series of measures and precautions, can protect their rights over their works against possible infringements by third parties. These rights, in the field of intellectual property, have two aspects. On the one hand, property rights, roughly speaking, allow the creator to profit financially from the exploitation of their work; and, on the other hand, moral rights are those that are linked to your personality.
In today's post, we will explain what moral rights are and look at their characteristics.
We will begin by pointing out that our legislature includes these rights in a closed list (numerus clausus, i.e., it does not recognize any rights other than those listed) in Article 14 of the Royal Legislative Decree 1/1996, of April 12, approving the revised text of the Intellectual Property Law (“LPI”). These rights are as follows:
- Right of disclosureOn the positive side, this right includes the author's freedom to decide whether their work should be disclosed to the public and under what conditions, or whether it should remain unpublished. In any case, this right may conflict with the right of public display of persons who acquire the physical medium of the work, such as a painting. Our legislator, in Article 56.2 of the Intellectual Property Law, provides in this regard: “The owner of the original of a work of fine art or a photographic work shall have the right to publicly exhibit the work, even if it has not been disclosed, unless the author has expressly excluded this right in the act of disposal of the original.”
- Determine whether such disclosure should be made with your name, under a pseudonym or sign, or anonymously. Creators do not always want to enjoy the recognition and fame that come with their intellectual work. Such is the case with street artists. Banksy, whose identity remains a mystery to this day (about whom we already wrote in this post). In these cases, and as long as the author does not reveal their identity, the exercise of intellectual property rights belongs to the person who publishes the work with the author's consent.
- Paternity rights: this is the author's right to demand recognition of their status as the author of the work. This means that when a work is exploited, not only must the owner's authorization be obtained, but the author's name must also be mentioned. Failure to do so could constitute an infringement of authorship, commonly known as plagiarism. In this previous entry We delve deeper into this concept and its legal implications.
- Right to integrity of the work: the author may prevent any distortion, modification, alteration, or attack on their work that could harm their legitimate interests or damage their reputation. In practice, this right may conflict with the public interest of citizens, as was the case with the bridge. Zubi Zuri designed by Calatrava. In this case, part of the work was modified in order to prevent citizens from falling, as their physical integrity was at risk. In its ruling 187/2009 of March 10, 2009, the Provincial Court stated: “In effect, the demolition of the Isozaki parallel would mean the recovery of the moral right to the integrity of the work “Zubi Zuri” that has been violated., but it would be an absolutely excessive and disproportionate measure.…”
- Right of modification: The author may modify their work, provided that they respect the rights acquired by third parties and the requirements for the protection of cultural assets. Our legislature does not condition this right on the existence of specific reasons, such as intellectual or moral ones. Therefore, it follows that such modifications may be made simply for aesthetic improvements to the work.
- The right of withdrawal or cooling-off period: this right is provided for cases in which the author does not wish his work to continue to be disseminated because his intellectual or moral convictions have changed. However, this right is not without limitations; the author will probably be obliged to compensate those who have acquired the rights to exploit the work.
- Right of access: this right allows authors to access unique or rare copies of their work, when these are in the possession of another party, in order to exercise their rights. Obviously, the author will have to obtain the necessary authorization to enter the place where the work is located and, in any case, exercise their right in the least harmful and damaging way for the owner.
Due to their highly personal nature, these rights have characteristics that are not present in economic rights. First, they are non-negotiable. This means that they cannot be restricted or limited. Any agreement, contract, or clause that would entail the author's waiver of these rights would be null and void.
Another feature of these rights is that they are non-transferable and non-assignable. Unlike economic rights, moral rights cannot be transferred during the author's lifetime (inter vivos) nor on the occasion of his death (mortis causaNotwithstanding the foregoing, our legislature states that, following the death of the author, it is incumbent upon the heirs to exercise the rights of authorship and integrity of the work to the persons to whom he had entrusted it as his last will and testament. Furthermore, these two rights are perpetual, which means that they must be respected even when the work has fallen into the public domain.
Finally, these rights are not subject to mortgage or seizure.
We have seen what moral rights consist of and what their characteristics are. In the event of infringement or violation of these rights, creators can take a series of judicial and/or extrajudicial actions and measures to defend them. For example, they can demand the cessation of the illegal activity and claim compensation for the damage caused.
Finally, it should be emphasized that the above refers to our legal system, which does not always coincide with the legal systems of other countries. In particular, in Anglo-Saxon countries, the treatment and recognition of these rights is very different; therefore, before signing a contract for the transfer of rights under a regime other than the Spanish one, special attention should be paid to these issues.
In any case, if you have any questions or concerns about this, at Bamboo we are lawyers specializing in intellectual property, so we can help you.
[Article written by Marilena Kanatá]
