Intellectual property and literary works

Intellectual property and literary works

Since the origin of intellectual property, literary works have held a privileged position within it. This genre has always been considered one of the great exponents of both culture and dissemination, allowing, especially since the 15th century, the time when Gutenberg invented the modern printing press (without disregarding the advancements made in China since the 10th century), the dissemination of news and knowledge to the public.

Literary works are explicitly reflected in Article 1 of Royal Legislative Decree 1/1996, of April 12, which approves the revised text of the Intellectual Property Law (hereinafter referred to as the “IP Law”). It establishes literary works as the triggering factor for intellectual property rights for their author. 

It should be noted that the author is the owner of the rights from the moment of creation of the work, and therefore, it is not necessary for the work to be registered for the author to exercise their economic and moral rights.

Definition of “literary work”

The true challenge regarding these works is to establish a definition of literary work. The IP Law, in Article 10.1, provides a definition that is clearly generic and perhaps somewhat repetitive: “a) Books, pamphlets, prints, letters, writings, speeches and addresses, lectures, forensic reports, lecture explanations, and any other works of a similar nature.” 

In fact, the last sentence is a clear intention of the legislator to establish a “numerus apertus” for such classification since creativity is a living entity in constant change. In any case, it should be noted that the title of any work is also protected by intellectual property, generating an independent literary work separate from the main part.

Furthermore, it should be taken into consideration that it is very common for works of this nature to be integrated into other works, predominantly in visual or audiovisual works. For example, the images included in a book, as well as the illustrations included in a graphic novel, not to mention the scripts of film productions.

The requirements for a literary creation to be considered as a protected work are already known to the reader and apply to all works. 

That is, they must be original creations and expressed through any means or medium, tangible or intangible, currently known or to be invented in the future.

Human and original creation

It is worth focusing on the term “original creation” because determining the limits of this concept is not simple. Nowadays, without disregarding the eternal discussions between German and French doctrine, it is understood that it must be a human and original creation. 

Regarding originality, it should be noted that subjective originality tends to be accepted (although it is debatable), meaning that one has not copied another’s work, rather than objective originality, which would involve creating something new. The latter conception is much more restrictive than the former.

In any case, that originality must have a minimum level of relevance to be protected. The difficulty lies in determining the limits of this relevance. German doctrine coined the term “height of creativity” (Gestaltungshöhe) to determine if a creation was protectable. 

However, the jurisprudence of our Supreme Court has established a very broad criterion for assessing originality, accepting as works items such as instruction booklets for a screen or classified advertisements.

Finally, I want to highlight that the author is not the only agent when it comes to literary works. 

A few lines should be dedicated to the publisher, who has a separate chapter (Article 58) and subsequent articles in the IP Law, particularly Article 62. In this regard, two types of contracts will be emphasized: commissioned works and publishing agreements. However, we will discuss the publisher in a future article.

At Letslaw by RSM, we specialize in intellectual property and literary law. For any inquiries, do not hesitate to contact us.