Intellectual property

Intellectual property is any creation of the human intellect and is regulated in Royal Legislative Decree 1/1996, of 12 April 1996, approving the revised text of the Intellectual Property Act. It concerns creations of the mind: the inventions, literary and artistic works, symbols, names, images and drawings and models used in the market. Intellectual property comprises industrial property and authors' rights.

Works subject to intellectual property may be under a system of copyright, open access licenses, such as Creative Commons, or in the public domain.

Any form of intellectual property is brought to society through the use that is made of it, with royalties being paid to the corresponding authors or owners of the works so that, subsequently and after the period established by law, the creations become the cultural heritage of humanity. This exchange is derived from the fact that the authors owe the origin of their royalties to society.

The social function of the property allows private property law to be modulated according to higher social interests, which is what the UOC does, acquiring knowledge and returning this to society before the legally stipulated period has expired. It does this through the knowledge that it conveys to its students, through the marketing of the works that it commissions and through the subsequent dissemination of these works with open access licenses.

Works and authors' rights

What is a work and which ones are subject to intellectual property?

Article 10 of the Intellectual Property Act establishes that all original literary, artistic or scientific creations expressed by any medium or support, tangible or intangible, currently known or that may be invented in the future, are intellectual property.

The precept lists by way of example, but is not limited to, the following works:

Written works: books, written texts or any other works of the same nature
Musical works: musical compositions, with or without lyrics
Dramatic works
Cinematographic works
Sculptures and works of painting, drawing and comics, inter alia
Architectural and engineering works
Graphics, maps and designs relating, in general, to science
Photographic works
Computer programs

When it is original, the title will also be protected as a part of the work.

Authors' rights do not protect either ideas or simple facts: what these rights protect is the way in which these ideas are expressed, what it is that makes the work original.

An idea may be expressed in many different ways, which is why authors' rights protect the expression of the idea, not the idea itself.

What works are not subject to intellectual property?

The following are not subject to intellectual property (Article 13 of the Intellectual Property Act):

rulings of jurisdictional bodies,
records, decisions, deliberations and findings of public agencies,
legal or statutory provisions and their corresponding draft bills,
the official translations of the above texts.

In other words, any of these documents may be reproduced, distributed, publicly communicated or freely amended without any prior authorization by the rights holder.

As stated in the previous section, neither are ideas subject to intellectual property.

Authors and authors' rights

Who is the author?

The author is the natural person who creates a literary, artistic or scientific work.

The owner of the authors' rights of a work is the person who created it.

Sometimes, works are created by more than one person, as is the case of collective works and works that entail collaboration among a number of people. In the former case, the owner of the work is considered to be the natural or legal person who publishes it and disseminates it under their own name. However, the authorship of each individual author is recognized with regard to their contribution to the collective work individually considered, albeit not as part of the collective work. In the latter case, all the authors who contribute to the creation of the work in collaboration are considered to be co-authors and share the authors' rights in the work.

In some cases, the authors wish to remain anonymous or use a pseudonym to hide their true identity from the public. In these cases, the author continues to be the owner of the authors' rights of their works.

What rights does the author of a work have?

Authors' rights are comprised of the so-called moral rights and the economic or usage rights.

Moral rights

Moral rights are those that enable the authorship of a work to be recognized and to oppose the fact of this authorship being changed in a way that may damage the reputation of the creator.

These rights are irrevocable and inalienable and will always stay with the author of a work and their heirs when the author has died. They are defined in Article 14 of the Intellectual Property Act:

To decide whether the work should be disseminated and in what form.
To determine whether this dissemination should be done under their own name, under a pseudonym or sign, or anonymously.
To demand the recognition of their status as author of the work.
To demand respect for the integrity of the work.
To modify the work, respecting the rights acquired by third persons.
To withdraw the work from the market.
To access the sole or rare copy of the work when it is in the possession of another.

Economic or usage rights

Usage rights are those that permit the rights holder to receive remuneration for the use of their works by third persons.

They include the following rights:

Reproduction right: this includes any form of reproduction, such as photocopying, downloading, printing, scanning, photographing, etc.
Distribution right: this is making the original or the copies of the work available to the public, on tangible media, by means of its sale, rental or loan, or in any other way.
Public communication right: this is any act whereby a number of people can have access to the work without the prior distribution of copies to each one of them. The communication is not considered to be public when it is held in a strictly domestic sphere that is not part of or connected to a dissemination network of any type. Posting the work on the Internet would be a public communication act.
Transformation right: this comprises the translation, adaptation and any other modification to the form of the work in such a way that a different one is derived from it.

The author has the exclusive usage right of their work, although, unlike moral rights, these rights may be assigned to third persons, both exclusively and non-exclusively. Should a third person wish to make use of them, they need the express consent of the author or they should observe any of the exceptions to authors' rights set out in law.

Cessió de drets d’explotació: no exclusiva / exclusiva

La cessió de drets consisteix en la transmissió d’un o diversos drets d’explotació d’una obra a un tercer, de manera que li permet exercir-los legítimament tot i no ser l’autor de l’obra. Això el converteix en el titular dels drets d’explotació de l’obra. La transmissió d’aquests drets pot tenir lloc en morir l’autor (mortis causa) o per actes inter vivos. Aquesta darrera modalitat de cessió pot ser exclusiva o no exclusiva.

La cessió de drets en règim de no-exclusivitat, en canvi, atribueix al cessionari la capacitat d’exercir el dret o drets cedits d’acord amb les condicions de la cessió, però sense excloure l’exercici dels drets per a tercers o per a qui els cedeix.

How long do usage rights last?

The usage rights of a work will last throughout the lifetime of the author and for seventy years after their death or declaration of death. In the case of authors who died before 7 December 1987, the rights are maintained up to eighty years after the death of the author.

Example: The original text by Lewis Carroll and the illustrations by John Tenniel of the book of Alice’s Adventures in Wonderland, published in 1865, are in the public domain, but the adaptation of this original book in the form of a film and the cartoons adapted by Walt Disney in 1951 are still protected by authors' rights and trademark rights, and their use requires authorization.

What uses can be made without the owner's authorization?

The law sets out limits or exceptions to authors' rights that permit the exercise of usage rights, which are initially exclusive to the author, without first having to secure their express authorization. In some of these exceptions, despite not having express permission, the exercise of these rights generates a right to economic compensation in favour of the author or owner. These are regulated in Articles 31 to 40 of the Intellectual Property Act.

In all cases, to be able to exercise the usage rights on the work, mandatory requirements must be met: citing the author and the source of the work. Beyond this, each limit demands its own requirements. The law also establishes that they may never be interpreted in a way that their application causes undue damage to the legitimate interests of the author or are in detriment to the normal use of the work.

The two limits set out by law that may have an effect on the work of the UOC are the following:

Citation right

This consists of the inclusion in one's own work of excerpts from other works of any kind. They must be works that are already disseminated (ie already in circulation) and the inclusion must be by way of a citation or for their analysis, comment or critical opinion. This use may only be made for teaching or research purposes, in the justified measure for the aim of this inclusion and stating the source and the name of the author of the work.

In the case of photographs, it is possible to use the entire photograph under citation rights, providing the conditions required by law are met.

Illustration for teaching

Teachers in official education may reproduce, distribute and publicly communicate small excerpts of works, excluding text books and university manuals, without authorization when these acts are carried out in the classroom to illustrate their educational activities, providing they are works that are already disseminated and, except in those cases where it is impossible, the author's name and the source are included.

Are authors' rights also on the Internet?

Yes. All the rights reserved for authors continue to be reserved on the Internet, despite the ease with which information can be copied and disseminated.

Although free content can be accessed, this does not in any way authorize the appropriation of the information contained on the web, much less making use of it that is contrary to the law.

What is the right of remuneration for private copying?

The right of remuneration for private copying is the right that authors have to receive recompense for the private copies that users of their works might make, ie the copies made in a domestic and family sphere, without making collective or commercial uses of them.

What is copyright (©)?

Copyright is a term, represented by the © symbol, that indicates who the usage rights holder is. This may be the author or the assignee if the usage rights have been assigned.

In a work, the name of the rights holder, and the place and year of dissemination of the work must be stated, followed by the © symbol.

The UOC is strongly committed to respect for intellectual property rights, which is one of the cornerstones of its institutional policy. This commitment is manifest, on the one hand, in the countless agreements that the University has signed with rights holders for the use of external resources in the classroom, and on the other, in the license signed with CEDRO some years ago, for which the UOC was the first university to sign up to this institution and one of its leading contributors.

What are open access licenses?

What are Creative Commons licenses?

Creative Commons licenses are useful for authors wishing to make their works or services available to the public in a (more or less) open system.

They represent a mid-point between the "all rights reserved" of copyright and the "no right reserved" of the public domain, entailing instead "some rights reserved". All rights not expressly granted by the license are reserved.

Despite the extent of the terms of the license, the licensor (who may be the author or a third-party rights holder) reserves the right to disseminate the work under different conditions than those of the general license, or they may withdraw it at any time. The Creative Commons movement seeks to return sovereignty over their work to the author.

The conditions that may be applied to a work are as shown below, and they may be combined as is most convenient:

Infographic: Explanation of Creative Commons

Attribution: this allows the work to be copied, distributed and communicated to the public with the condition of naming the author in the credits. It must feature in all Creative Commons licenses as it is in line with the moral right of recognition of authorship of the work.
Non-commercial: this allows the work to be copied, distributed and communicated to the public, providing no commercial uses are made of it. For commercial uses, the express authorization of the rights holder is required.
No derivative works: this allows only exact (unaltered) copies of the work to be copied, distributed and communicated to the public. It does not authorize derivative works.
Share alike: this allows derivative works (transformation) to be made and their distribution or subsequent communication to the public, as long as this is done under an identical license to the one held by the original work.

It should be borne in mind that there is one combination that is not possible: a Creative Commons license cannot be created with the "No derivative works" and "Share alike" conditions, as the latter condition was designed to communicate derivative works.

The least restrictive license, the Creative Commons BY (Attribution), authorizes the reproduction, distribution, transformation and public communication of the work, for any purpose and for all usage types, free of charge and for the entire period of protection. From here, the more conditions that are added, the more restrictive the license, as fewer uses may be made of the work. The fewer the conditions, the freer the work is, as the capacity to act on the work will be more extensive.

The UOC is committed to returning to society the knowledge that this society possesses and has obtained thanks to the University. For this reason, all teaching materials commissioned by the UOC are finally published with Creative Commons licenses, version 3.0.

In November 2013, Creative Commons published version 4.0, which is different from the previous versions in that it is international in nature, ie this version has not been adapted to the internal legislations of each country. Consequently, and to avoid possible legal implications, the license used by the UOC will continue to be version 3.0.

What types of Creative Commons license are there?

The following are the six combinations developed by Creative Commons:

Who gives permission to use a work with a Creative Commons license?

Creative Commons licenses were designed so that they could be used by any person who has usage rights on the work, ie the creator or author if they have not assigned them to a third person.

The licenses are offered free of charge and it is not necessary for the creators or rights holders to register in any way to apply a license to a work.

How is the license correctly added to a work?

To publish one's own work with a Creative Commons license, it is simply necessary to indicate the specific Creative Commons license symbol in the document. These symbols can be found on the Creative Commons website and are free of charge.

If the specific license with which the work is to be published is known, all the necessary information about the licenses can be found here: https://creativecommons.org/licenses/?lang=en.

If, by contrast, it is not exactly known which combination is of most interest, this link can be visited, which acts as a guide until the most suitable combination for one's own needs have been found: http://creativecommons.org/choose/?lang=en.

What are GNU licenses?

GNU licenses are free software licenses with which authors have a tool that will enable them to authorize the free execution of their programs.

There are various GNU licenses, most notably the GNU General Public License (GPL) and the GNU Lesser General Public License (LGPL or Lesser GPL).

GNU General Public License (GPL)

This is a type of software license that permits the copying, distribution (commercial or otherwise) and modification of the source code, providing that any modification continues to be distributed under the same license.

It is a license that is used more in the area of software and ensures the end users the freedom to use, study, share (copy) and modify the software.

Its aim is to declare that the software covered by the license is free software and to protect it from attempts at appropriation that restrict these freedoms to users.

GNU Lesser General Public License (LGPL)

The GNU LGPL license (formerly known as the GNU Library General Public License) allows the freedom to share and modify the software to be guaranteed, ensuring that the software is free for all its users.

It permits the same as the GNU, but the main difference with the GPL license is that the LGPL can be linked to a non-GLP program, which may be free software or non-free software.

Forms of intellectual and industrial property

Definitions

Authors' rights

A work is protected by authors' rights due to the simple fact of its creation. Its registration or any other formalities are not necessary. However, some national authors' rights offices, and some laws, envisage the registration of works. These systems allow the problems posed to be tackled, including disputes relating to ownership or creation, and sales or assignments and transfers of rights as they provide proof and publicity to the rights registered there.

In the case of Catalonia, the office responsible for this is the Intellectual Property Register of Catalonia. Although the Register is for the whole of Spain, it has a decentralized structured through regional registers.

Software

Computer programs are intangible assets that require legal protection, as occurs in the case of literary, artistic and scientific works. The set of instructions that constitute each program is the result of the human mind, for which reason it is necessary to protect both the programs and their creators effectively.

The protection of computer programs by authors' rights has come about due to the realization that the protection provided by patents is insufficient. The rights on computer programs, their successive versions and derivative programs may be registered in the Intellectual Property Register.

The characteristic features of the current protection are as follows:

Registration is not mandatory.
It is presumed that whoever appears in the Register as rights holder of the program is the real rights holder, so the onus is on anyone disputing this point to prove otherwise. Registration is not taken into account to determine the start of the program protection period.
The Register is public.

Although it is true to say that registration with the Intellectual Property Register is very often complicated and not of any great use in terms of source code, there are other alternatives for protecting this.

Trademark or logo

A trademark is a distinctive sign that indicates that certain goods or services have been produced or provided by a specific person or company. Article 4 of Law 17/2001, of 7 December 2001, on trademarks, defines it as "any sign of graphic representation that serves to distinguish one company's products or services from those of another".

Protection of the trademark is obtained through registering it, and in some countries also through its use.

Although trademarks can be protected by their use, it is advisable to register them by submitting the relevant application to the appropriate office according to whether the registration is national, EU or international. Registration of a trademark will provide greater protection, especially in cases where there is a dispute with an identical trademark or one that is so similar that it may cause confusion.

Therefore, although it is not compulsory to register the trademark, it is advisable, since this grants exclusive rights that prohibit the unauthorized use of the trademark.

Patents

A patent is a series of exclusive rights that guarantee the right to operate as exclusive the invention made for a limited amount of time, which is twenty years in the case of Spain.

In Spain, it is regulated by Law 11/1986, of 20 March 1986, on patents.

For an invention to be covered by a patent, it has to fulfil three requirements:

Novel: an invention is considered as new when it is not included in the state of the art, ie when it has not been published prior to the date of submission of the application.
Inventive step: it is considered that an invention involves an inventive step if it does not result from the state of the art in a way that is evident to an expert in the matter.
Industrial application: it is considered that an invention is enabled for industrial application when the subject of the invention can be manufactured or used in any class of industry, including agriculture.

In accordance with the requirement of being novel, a research result cannot be published before patenting it, as a publication prior to the submission of the patent application would result in the loss of the novelty of the invention, which would then become non-patentable.

Utility models

Utility models protect inventions of a lower inventive rank than those protected by patents, consisting of providing an object with a configuration or structure from which a utility or practical advantage for its use or manufacture is derived. For example, a mop bucket.

The device, instrument or tool that can be protected by the utility model is characterized by its "utility" and "practicality".

Domain names (DNS)

A domain name is the Internet address of a company, organization, association or person that allows their information and their products and services to be accessible worldwide over the Internet.

There are three levels of Internet domains:

Top-level domains.
- Generic: These are the ones ending in ".com", ".gov", ".edu", ".org", etc. and they are allocated by institutions designated by the ICANN.
- Country code: these are the ones that identify the country, such as ".es" and ".ny".
Second-level domains: this is the name that is registered when applying for a domain, eg in uoc.edu, "uoc" is the second-level domain.
Third-level domains: ".com.es", ".nom.es", ".org.es", ".gob.es" and ".edu.es".

How can the author protect their work? Registration and identification of documents

For a work to be protected, the author simply has to declare their authorship in a visible place in the publication without the need for any additional procedure.

Similarly, a number of options are available so that authors wishing to do so can register their works, identify them uniquely and grant user licenses with which the permitted uses of the work for users can be described.

Does a work have to be registered?

A work is any original literary, artistic or scientific creation expressed by any medium or support, tangible or intangible, currently known or that may be invented in the future.

As of the moment that the work is created, the author already enjoys all the benefits of the law and, therefore, does not have to do anything in addition to protect their rights; to this effect, no one can make use of the work without the mandatory authorization of the author.

This notwithstanding, there are various systems for registering and identifying works:

Intellectual Property Register
Safe Creative
Legal deposit
ISBN/ISSN
Others

Registration systems

The Intellectual Property Register

The Intellectual Property Register is an agency envisaged in the Intellectual Property Act, conceived as one of the systems for protecting intellectual property rights through the proof and the publicity of the rights that are registered with it.

For the work to be protected, it is not necessary to register it with the Intellectual Property Register, as the work is protected due to the sole fact of its creation. Therefore, registration is declaratory, not constituent.

The advantages offered by registering with the Register are that it provides qualified proof that the rights registered exist and belong to their holder, except in the case where the opposite is proven, and publicity is given to the rights registered.

Safe Creative

Safe Creative is a private register of contents on digital media.

For authors, registering their work with Safe Creative is the proof of authorship of a register with irrefutable technological guarantees: deposit of the work, registration of multiple digital imprints and double time stamping; for the users of the works it provides certainty about the license and permitted uses.

Since registration with a public register is not compulsory in order to acquire intellectual property rights or to obtain the protection that the law provides to authors and other intellectual property rights holders, registering the material in a private register, as in the case of Safe Creative, offers evidence of authorship. The essential purpose of registration is to be able to show that a work has been created before that of a third person for the purposes of proving its originality.

To this effect, users can register their works using the service and leave a record of their authorship and intellectual property rights, since the aim of all of this is to provide a mechanism of proof in the event of cases of plagiarism or improper use of works of intellectual property.

Legal deposit

Legal deposit is the obligation for printers and publishers to deposit copies of all of their publications of all types disseminated on any medium with the aim of collecting and preserving all the production published in Spain and enable access to it. Authors who self-publish their works also have this obligation.

An infringement is committed if the obligation of legal deposit is not fulfilled. The following are infringements:

The publication of a work without having applied for the legal deposit number.
The publication of a work with a false or incomplete legal deposit number.
The fact of not having provided the copies.
The fact of not informing the legal deposit office of the postponement or cancellation of a publication.

Although legal deposit is not a system for protecting intellectual property rights as such, it does allow a work to be identified.

ISBN/ISSN

ISBN (International Standard Book Number)

The ISBN is a unique numerical identifier created for every book, based on a standardized combination of numbers that indicate a country or original language code, the publisher, the number of the article and check digits, which permits the identification of any book and the use of IT tools to locate it.

The ISBN is allocated by the Spanish ISBN Agency to publishers or authors who self-publish the works.

ISSN (International Standard Serial Number)

The ISSN is an internationally recognized numerical code for the identification of serial publications (journals, yearbooks, newsletters, collections of dossiers, etc.).

The National ISSN Centre of the country of publication is responsible for allocating this number. In Spain, it is based in the National Library.

When a journal is published in paper and electronic format, a different ISSN number is allocated for each format.

Others

Identifiers of works in print format:

ISBN (International Standard Book Number)
ISSN (International Standard Serial Number)
NIPO (Official Publication Identification Number)
ISAN (International Standard Audiovisual Number)
ISMN (International Standard Music Number)
ISRC (International Standard Recording Code)
ISWC (International Standard Work Code)

Identifiers of works in digital format:

HANDLE and DOI
PURL
SICI

What can be done if a work has been used illegally?

In the event that anyone has plagiarized a work or made use of it in any way that is not permitted by law without the consent of the rights holder, the latter may, without prejudice to any other actions that may correspond to them, seek the cessation of the illegal activity of the offender and demand compensation for the material and moral damages caused. They may also seek the publication or dissemination, in full or in part, of the court or arbitration ruling in the media at the cost of the offender.

To be able to detect possible unauthorized uses of the work, a plagiarism detection program can be used, which allows documents that coincide partially or completely and are disseminated on the Internet to be scanned.

For more information about how to detect plagiarism and protect a work, the academic plagiarism dossier produced by the Library can be consulted.