INTELLECTUAL PROPERTY LAW IN SPAIN

I.

TWO WAYS TO DEFEND YOUR RIGHTS IN SPAIN

II.

PROTECTION BY COPYRIGHT AND PROTECTION RELATING TO INDUSTRIAL DESIGNS

III.

EUROPEAN UNION LAW / SPAIN

IV.

NEW COPYRIGHT LAW IN SPAIN HARDER AGAINST COPYRIGHT INFRINGEMENTS (Personal Opinon)

I. Two ways to defend your rights in Spain: Criminal Law and Civil Law.
Intellectual Property Rights and Copyright, Rights of Consumers and the responsibility of the directors have double protection in Spain: civil and criminal. In practical terms, these rights are defined by civil law and protected by the Civil Courts, but also can be defended in the criminal courts. In the first case, the plaintiff can only ask the repair of their rights, and the payment of compensation for the damage suffered. In the second, the plaintiff may also order imprisonment for the offending party. Intellectual Property and International Trade Law Both IP rights as IT have something in common: they protect very specific human creations. However, they have a different social and economic significance. In Spain there are special laws: copyright and IT, patents, designs, and trademarks. And they all have a double protection system: criminal and civil. 1. Protection of copyright and other rights of TI The authors, editors, producers and software developers and other IT rights are protected by our Copyright Act. Article 2 of the Copyright Act provides that: "Intellectual Property Rights consists of personal and economic character, which they attribute to the author full control and exclusive right to exploit the work." This covers: (i) (ii) (iii) The right to always be recognized as the author. The commercial use by the author / editor / producer. The right to transfer to a third party commercial use of the work created.

Copyrights and IT do not have to be registered to be protected. The simple proof of its existence and capacity is sufficient. However, this test is not easy, unless they have been registered in the Registry of Intellectual Property. 2. Protection of Industrial Property Spain has special laws that protect what we call Industrial Property (Intellectual Property in USA and UK). For example, a patent right or a right of Design: protecting the creation of technical or objects in industrial use, and commercial use. We also have a Trademark Act, which protects the signs and markings that identify products, which are different from other similar objects. In order to be really protected, all these inventions and / or objects must be registered as patents, designs and trademarks. 3. Actions before the civil courts to protect copyright, IT and industrial property rights

Once granted registration, protected rights can be used against offenders. Your landlord can apply protection to commercial courts, through a civil action to oppose the attacks of others. 3.1. All the above legislation (Patents, Designs, Trade Marks and Copyright and Rights TI) has specific civil actions to get the offending part: Cease and desist Repair the harmful effects of their activities Compensate the damage caused (and tested): actual damages, and losses Pay moral damages Publish in newspapers (and pay) a summary of the Judgment of the Court

3.2. All the mentioned legislation allows the court can also agree precautionary measures if it considers that there is an imminent danger to the rights that should be protected, without waiting for the final judgment is rendered, because the damage is already occurring or are imminent. 4. Actions before the criminal courts to protect copyright and rights of IT, and industrial property rights Our Penal Code criminalizes certain violations of copyright, IT and industrial property rights, if they are especially important. Criminal actions must be filed with the criminal courts. 4.1. To bring a criminal action, the offender must be: - Fraud and a specific intent to obtain an unjust enrichment. To be considered criminal activity should cause damage to third parties (the copyright owner or license). 4.2. These crimes can be prosecuted by the Prosecutor or the police (of office) or by the owner of the infringed rights or the licensee, as a private prosecution. Given the severity of the punishment, including prison sentence, most of the criminal judges are not prepared to convict offenders 5. What (criminal or civil) action is most appropriate? It depends on the circumstances: 5.1. Procedures Penalties are appropriate if the offense is done through a "slavish" imitation (i.e. a copy precisely and accurately the original), and this they do criminal organizations specializing in this type of imitation. The biggest problem in Spain-these Criminal Procedure, is proving to the judge that the infringement has been made with idea and knowledge, and intent to commit a crime. Judges tend to understand that the offender has no criminal intent when considering that imitation is sufficiently different from the original product, or if a consumer can easily differentiate, hence, that no crime was committed. (Examples include Case 56/2002 of 5 March in Valencia and the AP 337/2011 of September 30, the AP of A Corua, in which the criminal charges are dismissed, not generate any risk of counterfeit items deception or confusion among consumers)

Moreover, the Criminal Procedure will often expand for long periods, without control by the complainant. It is the judge who must decide if imitation is a crime and, therefore, if necessary initiate oral trial to receive the complaint or criminal action, or whether the case should be filed. 5.2. Civil procedures are generally preferred. The Civil Action is usually more predictable, if some similarities between the original product and the imitation appear. The procedures take about one (1) year in the first instance. The required test is also usually predictable: proving the similarities between the two products and damages caused by the infringement. Moreover, it Injunctions are more regulated in detail in our Code of Civil Procedure. We previously we know what documents and evidence needed to obtain them. And the Civil Judges are more in favor of this type of precautionary measures that the Criminal Courts.

II. What are the differences between the protection by copyright and protection relating to industrial designs?
In some countries you can get a cumulative protection for the same design (i.e. protection through copyright and industrial design protection), while in others the two forms of protection are mutually exclusive.

Example: Carpet: The guitar Design: Authorized reproduction of a drawing of Federico Garca Lorca In Spain there is a system of restricted accumulation. Before taking a decision on the best way to protect a design is to understand the differences between the two forms of protection, among which are the following: Registration Under the legislation on industrial designs, is required to register a pre-industrial design filing the application for registration by the applicant to benefit from the protection. The certificate of registration under the legislation on the protection of industrial design, can be useful in demonstrating that there has been an infringement, it provides a solid basis to enforce the exclusive rights of the owner. The copyright in original works considered is obtained without the need for any formality. Although registration is not required to acquire the protection of this right, in some

countries there deposit for works protected by copyright, and the corresponding certificate of the deposit is issued. This is the case of the Spanish legislation. Duration Usually, the protection of industrial designs lasts a period ranging between 10 and 25 years depending on the country in trate.Debe note that the registration of industrial designs may take a while, which does not always suitable for products that rely on current trends (fashion products). Under Spanish law the registration is granted for five years from the filing date of the application for registration may be renewed for one or more successive periods of five years up to 25 years from that date. In most countries, copyright is in effect for the life of the author plus 50 or 70 years after his death. In Spain it is valid throughout the life of the author plus 70 years after his death.

Scope of Protection Registration of law confer on its holder the exclusive right to use and to prohibit their use without your consent. In this sense the eventual considered plagiarism whether infringement was deliberate or not. To enforce the rights acquired under the law relating to copyright, the holder must show that the allegedly illegal work is a direct or indirect reproduction of protected copyright works.

Restricted accumulation system In most countries, not all designs may be protected under the laws of copyright, but mainly those that can be considered works of art.

In Spain, Law 20/2003 of July 7 Legal Protection of Industrial Design provides compatibility of protection so that the protection is recognized in this Act to industrial design will be independent, cumulative and support which may result from the intellectual property. Through this system of accumulation "restricted" may protect industrial designs that present a certain degree of originality and creativity (art applied to industry). Costs Register your design in the countries you are interested means you will have to pay the fees. In Spain, in 2009, an application for registration for the first ten designs costs 90.85 , which other amounts progressively reduced by increasing the number of designs are added. The law relating to copyright in most countries does not address the need for any formalities for registration of the works, there is usually no direct costs associated with the protection of copyright. However, in some countries, including Spain, there may be costs associated with

a) The requirement to post the work in a hopper on copyright b) The condition to provide proof of ownership in case of disputes.

In summary, while the protection afforded by registration of industrial designs is stronger, and which even includes the assumption unintentional offense and plasma in a certificate can be an important test for infringement, it also implies an effort greater (economic and administrative) that requires registration and is of shorter duration.

In any case, especially in the event that a design is not registered, it should be documented every step taken in its preparation. Having dated and signed all the sketches and archive properly can be useful in case there is a violation. Example: In a recent survey of fabrics designers, carried out in the UK, 80% of respondents said they always kept scrupulously all documents relating to their original designs and were well aware of the importance of demonstrating the copyright ownership.

When a design can be protected under trademark law? A trademark is a distinctive sign (usually a word, a logo or a combination of both) that serves to distinguish the goods of one undertaking from those of others. There are circumstances in which the shape, design or packaging of a given product can be regarded as a distinctive feature of the product concerned and protected as a three-dimensional mark.

Bottle of cava Nevada Charter Freixenet S.A. is an example of this type. The protection of trademarks has the advantage of being renewable indefinitely, while the protection of industrial designs is limited to a period of time, in Spain up to 25 years. There may also be differences in the cost of registration of marks, compared to the protection of industrial designs. Depending on the nature of the legal system, the two types of protection can coexist. Do laws on unfair competition protect the designs? In many countries, industrial designs are protected by laws relating to unfair competition. Thus, a design may be protected against acts of unfair competition, including slavish imitation specifically include acts which may lead to confusion and acts of imitation or use of the reputation of another. But protection under unfair competition is significantly weaker and more difficult to prove infringement.

III. EUROPEAN UNION LAW / SPAIN

Enterprises invest in research and innovation to create new products and services or enhance their production processes. The standards regulating these new ideas aim to strike a balance between two elements: first, to protect the economic interests of the authors, the enterprises which create and use these works, new ideas and technologies. This protection supports new research and innovation. Meanwhile, the aim is to foster usage and dissemination in order to meet the needs of consumers and the general interest. This balance establishes that protection for these rights is subject to a time limit which varies from case to case. It also explains the obligations on owners to make appropriate use of them in order to meet the demand for goods and products within society, for example. Intellectual property covers intangible creations of the human mind in the broadest sense: inventions, literary, artistic and scientific works, names, trademarks, designs, etc. Legal requirements In Spain Industrial Property Protection is the responsibility of the State. Those wishing to protect such rights in Spain must register them with the Industrial Property Register of the Spanish Office of Patents and Trade Marks. Many enterprises operate in other countries worldwide. To protect intellectual or industrial property rights at the European or international level, a key role is played by the following European Union and international organisations:

European Union: Trade Marks and Distinctive Signs: Office for Harmonization in the Internal Market European Union and Patents: European Patent Office World Intellectual Property Organization World Trade Organization

Copyright protection is performed automatically in Spain. With regard to copyright there are two key international conventions: the Berne Convention and the Convention of the World Trade Organization to protect these rights. Protected in a Member State of these conventions it is covered at all.

Bern Convention for the protection of literary and artistic works World Trade Organization agreement on Trade-Related Aspects of Intellectual Property Rights

IV. New copyright law in Spain harder against Copyright infringements

The bill to amend the text of the Copyright Act, known as' Lassalle'-law, approved by the Council of Ministers, leaves behind a series of considerations on a text that the Ministry of Culture still not been made public, but we do have some filtering media. This information is not definitive, there will be changes until it is finally enacted. What aspects of this bill touches? They are roughly four: -Compensation for private copying: under the State Budget, is "targeted to compensate for intellectual property that ceased to receive by reason of the legal limit of private copying," says the text. That is, there would be an item in the budgets intended to pay authors whose works have been disclosed "in books or publications (...) and phonograms, video recordings or other audio, visual or audiovisual media, on by typographical devices or technical instruments, exclusively for private, non professional or business with no direct or indirect commercial purposes. " . -Societies and rates reinforces the system of transparency of these entities, and make the single window system: that is, that all entities centralize its billing and payment operations Ratings intellectual property rights. However, at this point, experts say it would have to analyze the content that has not yet been posted. -Fight against piracy. Proceedings under the law Sinde giving the second section of the Commission on Intellectual Property under the Ministry of Culture competencies to pursue websites that link protected by copyright content is reinforced. -'Google tax': The big news of the text that was not on earlier drafts. Seek compensation from a rate that make use of third party content that does not have permission from the publisher of that content. In this regard, some experts criticize that this text has not been published by the Ministry of Culture after being approved by the Council of Ministers and not venture to make a detailed analysis of the project. How much punishment can amount? It depends. In the case of intellectual property infringement on the Internet, for example, a website that link to copyrighted content-, penalties may be between 30,000 and 300,000 euros. For whoever is infringing is an entity management, in this case the penalty would range between 200,000 and 400,000 euros for serious and between 400,000 and 800,000 euros for very serious infringements infringements. Search engines: Should pay Google or Yahoo for link content? They should not ask permission or pay for link contained in its search engine since its function is that of technical intermediation. Google itself should pay, for example, if you put a story on a social network. The so-called 'rate Google' go 'for its Google News aggregator-for Google, Yahoo News for Yahoo! -.

What services would affect the 'rate Google'? Those who make such aggregation services (although not defined in the Act) and put a little intro or summary of the content. Apart from Google News or Yahoo News, other services like Flipboard also would be affected. Does it affect this rate if half appointment to another part of your content? In principle, the appointment would have no excluded from this rate, since he is not an interruption of the own creative work. What about text editors for teaching? It is one of the hardest hit sectors. The law states that for formal teaching and research may be disseminated fragments of text without special permission. What will happen to us as Rojadirecta and companies who have sports rights? In principle, the text does not protect companies with sports rights.

Personal Opinion
I think all professions charge for selling the product but not beyond. We should not encourage laziness. Every citizen has a role and if the play is a parasite. Artists are perhaps essential or necessary, but make them shareholders can reduce their production capacity. From my point of view I have to say: 1 - In Spain you have the right to a private copy, ie, non-profit (backups copies to devices, etc). This has prevented you to pay a fee to copyright holders and also prohibit you make copies. In addition, the authors rarely ever get this money. It is a very complex issue. 2 - Besides, which pose many people is that it seems like a crime, but for example, for having where information to unlock your phone. It is assumed that downloading certain things is illegal, but has not paid the fee for each device and therefore the right to copy? 3 - Some employers want to charge Google for add news summaries in search results. Have not thought about how much traffic (gains) provides Google? In my opinion, Google should remove them from your search results. The greed breaks the sack