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?
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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