ELZABURU Blog - Industrial and Intellectual Property

Tag Archives: Intellectual property

Why is it important whether a work is in the public domain?

A new calendar year normally brings with it reports in the press on the authors and creators whose rights will pass into the public domain in the year in question. This year, for example, it will be the turn of Antonio Machado. But what does it mean, exactly, when a work passes into the public domain?


Qué significa exactamente que una obra pase a ser de dominio público

Intellectual property rights are unique and while, as proprietary rights, they give absolute control over the protected creation (as would be the case with proprietary rights in real estate, for example), they are limited in terms of duration. Once the corresponding time period has lapsed, the right ceases to have full effect and the formerly protected creation may be used by anyone without the need to request a license.

Thus, the relevant legislation seeks, through this mechanism, to strike a balance between the creator being able to take advantage of the benefits of his work and permitting indefinite access to the work by society as a whole from a specific moment in time, as an expression of its own culture.

Pursuant to the Spanish legislation currently in force, exploitation rights in a work subsist for 70 years after the author’s death and that period is calculated from 1 January of the year following the author’s actual death or declared death.

If there are several authors, said period is calculated from the actual death or declared death of the last surviving co-author.

However, there have been earlier laws in Spain in this area which established other, longer protection periods. Thus, lawmakers established a longer term of protection for authors deceased prior to 7 December 1987. In that case, the term of protection is 80 years rather than 70.

It is also important to consider that the right to intellectual property is a national right and, therefore, each country has the freedom to establish its own criteria in this area.

Thus, there are countries, such as Mexico, which have a longer term of protection than that applicable in Spain, and other countries, such as Canada, which have a shorter term of protection. Moreover, as is the case in Spain, the term of protection can change over time.

There are even special cases, such as the rights in the play “Peter Pan” by James Barrie in the United Kingdom, which were extended in perpetuity by the Queen, after the author bequeathed them to a children’s hospital following his death.

In short, as we can see, the passing of creations into the public domain can give rise to a range of interesting situations with regard to personal enjoyment of creations and even regarding commercial use. Nevertheless, it is very important not to lose sight of the territorial nature of intellectual property rights and the implications thereof, which can lead to a work being in the public domain in one territory but not in another, in the latter case calling for the appropriate license to be sought.

Author: Mabel Klimt

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ELZABURU, leader in the protection of intangible assets, has renewed its corporate image

ELZABURU

Elzaburu, a firm specialising in managing intangible assets, has renewed its corporate image. The new image has been designed by the Manuel Estrada design studio and symbolises the firm’s vocation for adapting to the new demands of a marketplace that is subject to constant technological and social change. Elzaburu’s new branding includes a modern typeface together with a symbol projecting upwards, representing the firm’s commitment to supporting the innovations and progress of its clients.




Elzaburu, founded 155 years ago, was Spain’s first specialised IP firm. Throughout the firm’s history, it has witnessed such milestones as the patents for the inventions of Thomas Edison, Alexander Graham Bell or Juan de la Cierva, inventor of the ‘autogyro’, as well as the registration and protection of some of the most important trademarks of multinationals from all over the world.

The firm protects and defends the IP interests of 30% of the companies in the IBEX 35, Spain’s stock market index, together with 36% of the top Fortune 500 companies. Recently, a group of Elzaburu lawyers were selected to provide advice on IP-related matters to the Chinese government, a country where the firm has an office.

Over the years, Elzaburu has evolved from its initial activities centring on the registration of patents and trademarks, becoming a firm specialised in protecting and maximising the value of all kinds of creations and intangible assets in all economic sectors, particularly in the fields of new technologies, e-commerce, entertainment, cybersecurity, data protection, domain names and trade secrets, among others.

Today the firm has a staff of 165 people, with lawyers and experts in a wide range of areas, who handle the legal defence of more than 70,000 ongoing cases for more than 3,000 clients throughout the world.



Elzaburu


Visit our website: www.elzaburu.es/en

A step forward, but we need to be bolder

Film Industry Act Revision

(More on the revisions to the Royal Decree setting out the Implementing Regulations to the Film Industry Act) 

Rounding out a month in which the movie industry has been much in the news with Spain’s Goya Awards still fresh in our minds, the Government has today set in motion a public consultation regarding amendments to Royal Decree 1085/2015 of 4 December 2015 with the Implementing Regulations to Law 55/2007 of 28 December 2007 on the Film Industry.

The Royal Decree is the cornerstone on which the entire regulatory system for the motion picture industry in Spain rests, encompassing (naturally), the basis for public subsidies but also many other questions as well, such as the procedural methods of advisory bodies and oversight by the Instituto de la Cinematografía [Film Industry Institute], the system of penalties, the audiovisual content rating system, and a long list of other aspects.

Turning to the text that has today been made available for public consultation, open to all citizens until this coming 19 February, what we have is an update to the law, given that the original law dates from 2007, a little over 12 years ago, ancient times in an industry that is continually reinventing and upgrading itself.

Film Industry Act Revision

The new revision is not a complete overhaul but merely retouches a few articles in the 2015 version. In fact, many of the changes are more formal than substantive or are the result of legislative changes since the original Royal Decree was issued and which would be applicable even without this new version. This is the case, for instance, of the references in the new draft to Law 39/2015 on Administrative Procedure in Article 4.2 or to Law 40/2015 on the Public Sector in Article 36.

Still, there are some much needed changes that have been pushed along by practical necessities. One example is Article 10.3 in the draft, dealing with co-productions. The current version of the law requires all formalities in this respect to be completed before a production starts shooting. This means that, as a result, the producers cannot have recourse to funds from foreign co-producers interested in taking part in the project, which on some very noteworthy occasions (fortunately few in number) keeps projects from ever getting off the ground. Quite reasonably, the law contains an exception to the general rule, allowing co-production financing to be approved after filming has begun.

As might be expected, the lynchpin of the revisions is Article 21.2 of the draft, which regulates limits on government grants. These limits determine the amount of public funds that can be put into audiovisual projects, already set previously by the European Union. However, it is up to each Member State to define the content of what can be regarded as “problem” projects, that is, projects which have more restricted commercial appeal, which encounter greater difficulty in obtaining financing, or which without additional public support would be destined to be shelved.

The definition of a problem project varies greatly around the European Union and allows any given Member State to give certain types of works extra protection and fund more than the 50 % cap commonplace in the industry. Each country, of course, has come up with its own definitions, resulting in a sort of minor “arms race” in this area.

Spain was not particularly audacious in its definition of problem projects in the 2015 version of the law, which was not very helpful to writers and producers, who have to compete with other, bolder European countries, compelling Spanish film industry producers to limit the size of their stakes and expand production stages in search of financing, lowering competitiveness in attracting shoots (with the resulting cost in jobs), etc.

The inflection point in this particular race came about in Italy, which two years ago brought in a package of regulations that substantially modified the rules of its own domestic scheme (based on the French system, by the way). The new regulations defined a problem production as any Italian production costing less than 2.5 million euros and allowed public financing of up to 100 % of those projects. This was on top of a quasi-automatic system of grants, a strong tax incentive structure, and a 60 % increase in public funding for the industry, climbing to 400 million euros. Far more than in Spain, which expends barely 70 million nationally.

The revision that is now being planned is not the remedy on the Italian model and is far removed from the French system, but it does include improvements that will make it possible to support particularly vulnerable projects which up to now have not benefited from any special protection. These include measures aimed at people with disabilities, women, and projects of special cultural and artistic value that need extra support.

Even so, the changes only go halfway. Apart from the efforts that approving the law in question surely entails and will require on the part of the Government, it represents the lonely voice of the Ministry of Culture. It is commonly accepted that as things stand today the audiovisual production system would not be able to keep up its current pace without the system of financial incentives, which paves the way for private financing and makes our country attractive to foreign producers.

To be fully effective, the changes now being proposed need to be co-ordinated with the specific tax legislation previously referred to, including Article 36.1 of the Corporate Income Tax Act. Otherwise, there will continue to be two separate playing fields, one tax related, one regulatory, which definitely need to be reconciled in order to create a consistent, secure legal structure for the industry.

  Author: Mabel Klimt Visit our website: www.elzaburu.es/en

BREXIT: WHAT HAPPENS NOW?

brexit

CALM should be the watchword guiding the actions of holders of IP rights from midnight tonight, that is, when Brexit, the United Kingdom’s withdrawal from the European Union, takes place at 00.00 am CET.

  brexit
 

Despite the storms clouds that were gathering at times in 2019, pointing to a risk of the UK crashing out of the EU, finally an agreement has been reached which, aside from ensuring an orderly exit, also provides that during the transition period which, in principle, will run until 31 December 2020, EU legislation will continue to apply in the United Kingdom. This transition period thus extends to, among others, the regulations governing European Union trademarks and Community designs, the regulation on border measures to tackle counterfeiting and piracy or the procedural regulations that apply when bringing legal proceedings. It should also be borne in mind that European patents will not be affected by Brexit, given that the European Patent Convention, which regulates the grant of European patents, does not form part of the EU legal order.

The effects of Brexit with regard to industrial and intellectual property rights and other related rights are therefore delayed until 1 January 2021.

In the coming months, ELZABURU aims to send out circulars with information on the effects and consequences of Brexit in relation to the following areas: European Union trademark applications and registrations and international trademark registrations designating the EU; Community designs; plant varieties and “.eu” domain names; applications for EU Customs action; ongoing or planned legal proceedings; the absence of consequences, as things presently stand, for matters relating to the European patent; opposition, invalidity and revocation proceedings; and issues relating to representation before the EUIPO.

The message for now is clear. From 1 February 2020 until the end of the transition period (expected to be on 31 December 2020), everything will remain the same in practice: proceedings concerning trademarks, designs and other intangible assets will continue to operate as they have until now.

Should you have any questions, please contact us at: brexit@elzaburu.es.

Visit our website: http://www.elzaburu.es/en


Film award ceremonies and festivals: much more than winning an award

premios_festivales_cine

In the United States the Golden Globes award ceremony was held recently, and on 9 February the Oscars ceremony, organised by the Academy of Motion Picture Arts and Sciences, will take place in Los Angeles. Also coming up in February are the award ceremonies for British cinema, the BAFTA awards, and French cinema, the César awards.

Spain is no exception to this “awards season”. In mid-January the José Mª Forqué awards, organised by EGEDA, celebrated their 25th edition. They are followed by the Feroz awards and, of course, by the Goya awards ceremony organised by Spain’s Academy of Cinematographic Arts and Sciences, which will take place on 25 January.

 

film_awards_festivals

 

With such a deluge of awards, doubts inevitably arise as to their importance. The reality is that, essentially, there is no “awards season”, and these activities, including awards, festivals, ceremonies and film markets, take place practically throughout the year for the different facets and specialities of the industry.

This concentration of award ceremonies in the opening months of the year is due principally to the fact that these events are promotional tools for the films that are about to be released or for recent releases. It serves as a means of attracting or focusing the attention of audiences, in a world full of distractions. In some cases, a prominent nomination or award can even provide a second commercial opportunity for a film (or perhaps even a new opportunity for smaller projects that have passed through cinemas with little commercial success).

This has become such an important part of the economic process connected with the production, promotion and exploitation of audiovisual projects, that the Institute of Cinematography and Audiovisual Arts (ICAA), subsidiary to Spain’s Ministry of Culture and various Autonomous Communities of Spain, has specific lines of funding in relation to support for both festival attendees and organisers.

Moreover, it is common for such events and, principally, film festivals (Berlin, Cannes, Toronto, San Sebastian), to be accompanied by parallel activities relating to the industry’s development, such as conventions or working sessions. These activities tend to have frenetic agendas, in order to secure sales, seek funding, participate in debates on future legal texts and in meetings of associations from the industry, hold meetings with the authorities, or simply take the opportunity to establish cooperation networks that may lead to future projects.

Thus, despite the aura of glamour that surrounds any film award or competition, it is important to be aware that behind that aura, and beyond the excitement at receiving an award, there is a thriving industry which in Spain generated ticket sales in excess of 500 million euros last year.

 

Author: Mabel Klimt

Visit our website: http://www.elzaburu.es/en

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