Spain.xml

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<article lang="en">
<articleinfo>
    <date>2017-05-18</date>
</articleinfo>
<section id="chap.spain">
<title>Spain</title>
<simpara>author:[Bain,Malcolm]</simpara>
<section id="sec_spain_introduction">
<title>Introduction to software protection under Spanish law</title>
<section id="sec_spain_body">
<title>Body of law</title>
<simpara>Copyright protection of software is regulated in Spain under Royal
Legislative Decree 1/1996 of 12 April, approving the consolidated text
of the Copyright Act (hereinafter, the &#8220;Copyright
Act&#8221;)<footnote><simpara>Official State Bulletin (BOE) Nº 97 of
  22/April/1996. Last amended by Law 23/2006 of 7 July. While the name
  in Spanish is &#8220;Ley de Propiedad Intelectual&#8221;, which confusingly
  seems to refer to the concept of Intellectual Property, a more
  correct translation of &#8220;Propiedad Intelectual&#8221; is Copyright (and
  neighbouring rights), and this is the name we are using.</simpara></footnote>. This law
transposes the EU Copyright Directives (Directive 2001/29/EC on the
harmonisation of certain aspects of copyright and related rights in
the information society, Directive 2004/48/EC on the enforcement of
intellectual property rights; Directive 96/9/EC on the legal
protection of databases; and, in particular, Council Directive
91/250/EEC of 14 May 1991 on the Legal Protection of Computer Programs&#8201;&#8212;&#8201;hereinafter referred to as the &#8220;Software Directive&#8221;).</simpara>
<simpara>Title VII of Book I of the Copyright Act (Articles 95-104)
specifically regulates copyright in computer programs. These
provisions are considered <emphasis>lex specialis</emphasis> with respect to the
general provisions of Copyright Act, as <emphasis>lex
  generalis</emphasis>.<footnote><simpara>Copyright Act, Art. 95.</simpara></footnote> This means that
the general provisons of the Copyright Act will apply to computer
programs to the extent that Book I, Title VII does not contain any
specific provisions.</simpara>
</section>
<section id="sec_spain_Objectofprotection">
<title>Object of protection</title>
<simpara>Computer programs are specifically included in the non-exhaustive list
of literary, artistic and scientific works protected by copyright, in
Article 10.1(i). Computer programs are defined in Article 96 as &#8220;any
sequence of instructions or indications destined to be used directly
or indirectly in a computer system to performe a function or task or
obtain a determined result, whatsoever its form of expression or
fixation&#8221;, and include their preparatory material. Computer Program
copyright protection is also extended to technical documentation and
user manuals. Only original computer programs benefit copyright
protection<footnote><simpara>Copyright Act, Art.10: &#8220;Are object o copyright
  any <emphasis>original</emphasis> literary, artistic or scientific works&#8230;&#8221;</simpara></footnote>.
According to Article 96.2 of the Copyright Act, the computer program
needs to be the own intellectual creation of the author, which has led
authors and judges to hold that the work must be new and bear, in some
manner, the print of the author&#8217;s persona (which, in computer
programming, does not have to be a high level at
all)<footnote><simpara>Implementing Art. 1.3 of the EC Software Directive.
  Real Marquez, M: <emphasis>The requirements of originality in
    Copyright</emphasis>, UAIPIT, December 2001.</simpara></footnote>. The ideas and principles
behind computer programs including those which serve as the basis for
its interfaces are explicitly denied copyright
protection<footnote><simpara>Copyright Act, Art. 96.4.</simpara></footnote>.  Malware such as
computer viruses, is also excluded from protection.</simpara>
</section>
<section id="sec_spain_AuthorsBeneficiaries">
<title>Authors/Beneficiaries</title>
<simpara>The Copyright Act generally provides that copyrights in a work belong
to the author, who is the person or group of persons who creates the
work<footnote><simpara>Copyright Act, Art.1 (also Arts. 2, 14 and 17 and for
  computer programs, Art. 97.1).</simpara></footnote>. In respect of computer programs,
Article 97.4 adds, however, that where computer programs are created
by one or more employees in the execution of their duties or following
the instructions given by their employer, the employer will be deemed
to be the exclusive rightsholder of the economic rights in the
computer programs so created, unless expressly provided
otherwise<footnote><simpara>Copyright Act, Art. 97.4.</simpara></footnote>. In these
circumstances, employee authors will maintain their moral rights over
the work (see below), while the economic rights belong&#8201;&#8212;&#8201;by
legislated automatic transmission of rights&#8201;&#8212;&#8201;to the
employer<footnote><simpara>Castro Bonilla, A: &#8220;Autoría y Titularidad en el
  derecho de autor&#8221;, <ulink url="http://www.informatica-juridica.com/">http://www.informatica-juridica.com/</ulink>
  (last visited, 01.08.2010).</simpara></footnote>.</simpara>
<simpara>The law also provides for works with multiple authors. Joint works
(works that are the unique result of the collaborative efforts of a
variety of persons) are the property of all the authors and the rights
correspond to them as they may agree. In default, the rights are held
equally. Each author may exploit his/her contribution to the work,
provided this exploitation does not prejudice exploitation of the work
as a whole<footnote><simpara>Copyright Act, Arts. 7 and 97.3.</simpara></footnote>.</simpara>
<simpara>The rights over a &#8220;collective work&#8221;&#8201;&#8212;&#8201;a program created by
initiative and under the coordination of a person that edits and
disseminates it (an &#8220;editor&#8221;, basically), and consisting in the
composition of several contributions (made for this purpose by
different authors) which merge into a single and unique work ---
without being able to attribute ownership rights to one author in
particular&#8201;&#8212;&#8201;belong to the editor, unless contractually provided
otherwise<footnote><simpara>Copyright Act, Arts. 8 and 97.2.</simpara></footnote>.</simpara>
<simpara>Finally, the Copyright Act also establises the concept of a
&#8220;composed&#8221; or &#8220;composite&#8221; work, being a work which incorporates
one or more previously existing works without the colaboration of the
prior author. Rights in the composed work belong to the person who
performs such composition, without prejudice to the rights of (and the
need for authorisation from) the prior author<footnote><simpara>Copyright
  Act, Art. 9.</simpara></footnote>.</simpara>
</section>
<section id="sec_spain_Economicrights">
<title>Economic rights</title>
<simpara>According to Article 99 of the Copyright Act, the economic rights in
computer programs comprise the exclusive rights to perform or
authorise the performance of :</simpara>
<simpara>(a) permanent or temporary reproduction of a computer program by any
means and in any form, in part or in whole (including when the acts of
loading, executing, displaying, transmission and storage of the
program require a reproduction);</simpara>
<simpara>(b) translation, adaptation, arrangement or alteration of a computer
program, and the reproduction of any such transformed work; and</simpara>
<simpara>(c) any form of distribution to the public, including the rental, of
the original computer program or copies thereof.</simpara>
<simpara>Article 99 does not mention the right of public communication (e.g.
transmission of a program in intangible form via Internet), however as
the other provisions of the Copyright Act apply in the absence of
specific provision, it is understood that Article 20 of the Copyright Act
grants the rightsholders the exclusive right to publicly communicate
the computer program.</simpara>
</section>
<section id="sec_spain_ExceptionstoExclusiveRights">
<title>Exceptions to exclusive rights</title>
<simpara>Article 99, last paragraph, expressly provides that the first sale in
the European Union of a copy of a program by the rightholder or with
his consent shall exhaust the distribution right of that copy within
the Community, with the exception of the right to control further
rental of the program or a copy thereof. This is understood to apply
only to tangible copies (i.e. programs on a CD or DVD, flashcard,
etc.), as the distribution right is limited to the computer programs in
tangible media.<footnote><simpara>Copyright Act, Art. 19.</simpara></footnote> And it does not
exhaust the reprodution and transformation rights.</simpara>
<simpara>The other exceptions are set out in Article 100 of the Copyright Act:</simpara>
<simpara>(1) In the absence of specific contractual provisions, no
authorisation by the rightholder is required for reproduction or
transformation of a computer program that are necessary for its use by
the lawful user in accordance with its intended purpose, including
error correction.</simpara>
<simpara>(2) Reproduction by way of a back-up copy of a computer program by a
person having a right to use it may not be prevented, insofar as that
copy is necessary to use the program.</simpara>
<simpara>(3) A person having a right to use a copy of a computer program is
entitled, without the authorisation of the rightholder, to observe,
study or test the functioning of the program in order to determine the
ideas and principles which underlie any element of the program,
provided he/she does so while lawfully performing any of the acts of
loading, displaying, running, transmitting or storing the program.</simpara>
<simpara>This article basically restates the three exceptions of Article 5 of
the Software Directive.</simpara>
<simpara>Articles 100.5-100.7 of the Copyright Act explain in detail the
circumstances in which a legitimate user of a computer program may
reproduce and/or translate a computer program without the prior
authorisation of the rightsholder, in order to obtain the information
necessary to achieve the interoperability of an independently created
computer program with other programs<footnote><simpara>Copyright Act, Art.
100.5. The authorization of the rightholder shall not be required
where reproduction of the code and translation of its form within
the meaning of article 99, a) and b) are indispensable to obtain the
information necessary to achieve the interoperability of an
independently created computer program with other programs, provided
that the following conditions are met:
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a) the reproduction or translation is performed by a person having a right to use a copy of the program, or on his behalf by a person authorized to do so;
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b) the information necessary to achieve interoperability has not previously been readily and easily available to the person referred to in subparagraph a);
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c) the reproduction and the translation are confined to the parts of the original program which are necessary to achieve interoperability.
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Art. 100.6. The exception of the paragraph 5 above shall only apply provided information obtained in this manner:
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a) is only used to achieve the interoperability of the independently created computer program;
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b) is only communicated to third parties when necessary for the interoperability of the independently created computer program;
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c) is not be used to develop, produce or market a computer program that is substantially similar in its expression, or for any other acts which infringe copyright.
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Art. 100.7. The provisions of this article may not be interpreted in such a way as to allow its application to be used in a manner which unreasonably prejudices to rightholders legitimate interests or conflicts with a normal exploitation of the computer program.
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(unofficial translation by the author)</simpara></footnote>.</simpara>
<simpara>The Act expressly provides that these exceptions, except that set out
in Article 100.1 (reproduction and transformation necessary for use)
are compulsory law. Hence, contractual provisions to the contrary are
deemed not to be valid. However, the exercise of these statutory
rights is often difficult in practice because the licensee generally
has no access to the source code of the application and it is not
obvious to enforce this access legally.</simpara>
</section>
<section id="sec_spain_moralrights">
<title>Moral rights</title>
<simpara>The Copyright Act makes no mention of moral rights in relation to
computer programs. These are regulated by Article 14 of the Act, which
is understood to apply to computer programs like any other protected
work<footnote><simpara>In application of Article 6bis 1 of the Berner
  Convention. See also Preinfalk Lavagni, I: <emphasis>El derecho moral
    del autor de programas infromáticos</emphasis>, Tirant Monografías, 2010.</simpara></footnote>.
These rights include the paternity right and the right to oppose
modifications and applications which might affect the honor or
reputation of the author<footnote><simpara>The Copyright Act also contains
  the right moral right to make the work known to the public.</simpara></footnote>. These
rights are inaliable and unwaivable<footnote><simpara>Copyright Act, Art.
  14, first line.</simpara></footnote>, and remain in force following the death of the
author.</simpara>
</section>
<section id="sec_spain_Termofprotection">
<title>Term of protection</title>
<simpara>Article 98 of the Copyright Act provides that the same term of copyright
applies to computer programs as for general protected works: 70 years
following the 1st January after the death of the author. For juridical
persons holding rights (employers or rightsholder in a collective
work), the term is 70 years from the 1st January of the year after
first legitimate public dissemination of the program (or its creation, if it
is not published)<footnote><simpara>Copyright Act, Art. 98.2.</simpara></footnote>.</simpara>
<simpara>Rights in a co-authored (joint) work last until 70 years after the
death of the last co-author. As regards collective works, having a
unique rightsholder (the editor), the copyrights last for 70 years
after first legal publication of the work. However, if the natural
authors are mentioned in the published versions, rights in the work
have the same general term: life (or dissemination) plus 70 years.</simpara>
</section>
<section id="sec_spain_Copyrightassignment">
<title>Copyright assignment</title>
<simpara>Economic rights in computer programs may be transferred to third
parties, <emphasis>mortis causa</emphasis> or <emphasis>inter
  vivos</emphasis><footnote><simpara>Copyright Act, Arts. 42 and 43.</simpara></footnote>. This is done by
operation of law in the case of employee created works, as we have
seen above. Otherwise, all <emphasis>inter vivos</emphasis> transfers must be
formalised in writing (paper or electronic)<footnote><simpara>Copyright Act,
  Art 45.</simpara></footnote>. The transfer of rights is limited to the specific rights,
use, term and geographic scope stated in the contract/license. If the
contract does not state these terms, transfers are deemed
non-exclusive, for 5 years, for the country where the transfer is
made, and only for the purposes that are necessarily deduced from the
contract and necessary for fulfilling its purpose.</simpara>
<simpara>If there is no contract for the transfer of rights, no rights are
transfered.<footnote><simpara>See e.g. Galán Corona, &#8220;La protección
  jurídica del software&#8221;, Noticias / CEE, Valencia, Ed CISS Nº73,
  Año VII, February 1991.</simpara></footnote> However, in the case of commissioned
works (e.g. from consultant programmers), the commissioner will have a
limited use right, limited in the same manner as above: having only
such rights as are necessarily deduced from the circumstances of the
engagement, and necessary for fulfilling its
purpose<footnote><simpara>See Ribas Alejandro, J: &#8220;Protección de los
  Programas de Ordenador&#8221;, in Informática y Derecho, Merida, Ed.
  UNED, Nº 9, 10 and 11, 1996.  Delgado Echevarría, J:
  <emphasis>Comentario a la Sentencia del 12 de diciembre del 1988</emphasis>, in
  CCJC, Madrid, Ed.  Civitas Nº 18, sept-dic 1988. This is reinforced
  by Copyright Act, Art. 99, last paragraph, applied by analogy, which
  states that unless otherwise stated, the transfer of a use right in
  the software is deemed non-exclusive, non-transferable and only to
  satisfy the needs of the user.</simpara></footnote>. In addition, depending on the
degree of participation of the commissioning party (client) (e.g.
providing the program design and detailed specifications), one could
consider the resulting work to be either a collective work, for which
the client is rights holder <emphasis>ab initio</emphasis> as editor of the work, or even a
collaborative work in which the client is co-author.</simpara>
<simpara>Transfers of rights can be exclusive or non-exclusive. There is no
such concept as &#8220;assignment&#8221; or &#8220;sale&#8221; of all the rights or
copyright property to a third party (this is contradictory to the
concept of moral rights)<footnote><simpara>Ródriguez Tapia (Ed),
  <emphasis>Comentarios a la Ley de Propiedad Intelectual</emphasis>, &#8220;La Cesión&#8221;.</simpara></footnote>. The closest transfer to an &#8220;assignment&#8221; is an irrevocable,
exclusive transfer or license of all the rights, for all purposes, for
all the duration of the rights and all the countries of the world.</simpara>
<simpara>Exclusive transfers must be expressly stated as such, and may be for
one, several or all the copyright rights. The exclusive licensee may
grant non-exclusive licences to third parties, and also has legal
standing to defend the rights in court, independently from the
original rightsholder. The exclusive licensee must also exploit the
work, or lose its license.</simpara>
<simpara>The Copyright Act establishes specifically that, unless proof is
provided to the contrary, the granting of any use license will be
considered non-exclusive and non-transferable, only for the purpose of
satisfying the needs of the user<footnote><simpara>Copyright Act, Art. 99
  last paragraph.</simpara></footnote>. Non-exclusive rights may not be
onwards-transfered, nor sub-licensed.</simpara>
<simpara>Copyright transfers may be royalty bearing or for free. This issue is
independent of the rights that are granted. Payments may be one-off,
or a proportional participation in the profits of exploitation of the
work (royalties)<footnote><simpara>Copyright Act, Art. 44.</simpara></footnote>.</simpara>
</section>
<section id="sec_spain_Copyrightenforcement">
<title>Copyright enforcement</title>
<simpara>Article 102 of the Copyright Act establishes the terms of breach of
copyright: the unauthorised performance of any exclusive rights
(reproduction, transformation, distribution, public communication),
and in particular:</simpara>
<simpara>(a) the commercialisation (putting into circulation) of any copies of
a program which the marketer knows or could be deemed to know are
illegal</simpara>
<simpara>(b) the possession for commercial purposes of any such copies</simpara>
<simpara>(c) the commercialisation or possession for commercial purposes
of tools which are exclusively aimed at facilitating the
unlawful removal or avoidance of technical means which protect the
computer program (TPMs)<footnote><simpara>In line with the Software
  Directive.</simpara></footnote>.</simpara>
<simpara>This latter provision (Article 102(c)) is specifically aimed at protecting
DRM and technical protection measures, and it was not considered
necessary to change these provision in 2004 or 2006 to implement the
EU Copyright Directives. Criminal law also penalises any copyright
infringement for commercial purposes (&#8220;for profit&#8221; motive), with
specific emphasis on removing TPMs<footnote><simpara>Spanish Penal Code,
  Art. 270. Note that the technical protection measures do not have to
  be &#8220;effective&#8221;.</simpara></footnote>.</simpara>
</section>
</section>
<section id="sec_spain_Unprotectedsoftwareandpublicdomainsoftware">
<title>Unprotected software and public domain software</title>
<simpara>As set forth above, only software that is original in the sense that
it is an intellectual creation of the author benefits copyright
protection. Non-original software does not come into consideration for
copyright protection and can, in principle, be used freely. Due to the
functional nature of many programs, the degree of originality for
software is not considered to have to be particularly high, and
basically a subjective criteria: of being the result of personal
effort that is not copied from another work, is
sufficient<footnote><simpara>Rodríguez Tapia, &#8220;Artículo 10 TRLPI&#8221;, in
  <emphasis>Comentarios a la Ley de Propiedad Intelectual</emphasis>, op cit, p.
  56.</simpara></footnote>.</simpara>
<simpara>Under Spanish law, public domain is limited to works for which the
copyrights have expired<footnote><simpara>Copyright Act, Art. 41.</simpara></footnote>. This
software&#8201;&#8212;&#8201;if there is any today!&#8201;&#8212;&#8201;can be used, reproduced or
executed freely, without permission or the payment of a fee. It can in
certain cases even be presented by third parties as their own work,
and by modifying the original work, third parties can take certain
versions of the public domain software out of the public domain again.</simpara>
</section>
<section id="sec_spain_FOSSunderSpanishLaw">
<title>FOSS under Spanish law</title>
<simpara>From a conceptual and legal point of view, FOSS is like any other
computer program, and benefits from the protection granted by
copyright law. Spanish copyright law fully supports the rights of the
copyright holder (usually the author) to establish determined
conditions in the software license, having the exclusive right to
exercise or authorise the exercise of the rights of reproduction,
transformation and distribution (and public communication). So, save
for public policy prohibitions, a rightsholder is free to choose the
conditions under which he or she licenses a computer program to third
parties.</simpara>
<simpara>Under Spanish law, FOSS would be considered as software to which users
generally have more rights, via the FOSS license agreement, than they
would have with a proprietary or &#8220;non-free&#8221; software
license<footnote><simpara>Nonius, J. (2002). <emphasis>Introducción a las
    licencias de software libre</emphasis>. Online now at
  <ulink url="http://campusvirtual.unex.es/cala/epistemowikia/images/d/d2/Introducci%C3%B3n_a_la_propiedad_intelectual_%28por_Jorge_Nonius%2C_20_de_abril_de_2002%29.pdf">http://campusvirtual.unex.es/cala/epistemowikia/images/d/d2/Introducci%C3%B3n_a_la_propiedad_intelectual_%28por_Jorge_Nonius%2C_20_de_abril_de_2002%29.pdf</ulink>
  (last visited 10.02.2011).</simpara></footnote>.  And, like any other software license,
the FOSS license conditions must be respected by the licensee (user),
or the license permissions may be revoked.</simpara>
<section id="sec_spain_Copyrightissues">
<title>Copyright issues</title>
<section id="_multiple_authorship">
<title>Multiple authorship</title>
<simpara>Although FOSS can be written by one person or be owned by one legal
entity<footnote><simpara>Such as software developed by employees (Copyright
  Act, Art. 96), and software developed for hire under a contractual
  transfer of copyrights.</simpara></footnote>, generally speaking, after some time it is
extended, improved, corrected and generally transformed, becoming the
result of the work of several authors who can make claims to it. The
question is whether later additions create a collaborative work (a
work created by collaborating authors), or whether the original
software is the work and every contribution created during the
further development of the software, a derivative or composed work.
The legal consequences are different.</simpara>
</section>
<section id="_qualification_of_foss">
<title>Qualification of FOSS</title>
<simpara>For FOSS to be a work created by means of a collaborative process,
i.e. to be considered a &#8220;collaborative work&#8221; of co-authors, it is
not necessary for every co-author to have contributed
equally<footnote><simpara>Carrasco Perrera, A, <emphasis>Comentario al Artículo
    7 TRPLI</emphasis>, en Bercovitz Rodríguez Cano, R (Coordinador)
  <emphasis>Comentarios a la ley de propiedad Intelectual</emphasis>, op cit, p. 124.</simpara></footnote>
(rarely the case), nor are co-authors required to work on it at the
same time (in most cases, not the case) although to be considered an
author the contributor must intervene during the creative process (i.e
not a tester or non-substantial bug-fixer).  However, to be a
co-author, the contribution needs to be worthy of protection by
copyright. The provider of an idea is not a co-author, nor is the
person who corrects a technical error or merely follows
instructions<footnote><simpara>Case 24th July 1995, Audiencia Provincial de
  Valencia (Civil).</simpara></footnote>.</simpara>
<simpara>Whereas the first version of a software program, if written by several
people, can in many cases be qualified as a collaborative work
(co-authorship), this seems much less the case for the later versions,
which are based on the original work without, however, there being
any &#8220;consultation&#8221; or direct collaboration between the authors.
These later versions would be qualified as &#8220;derivative works&#8221;, or
possibly collective works (if the author/editor of the new version
collated a series of different programs to form a distinct new
software based on the original). Therefore, in terms of the legal
consequences, a distinction needs to be made between the rights of the
original co-authors and the rights of subsequent authors who carry out
work based on the original.</simpara>
</section>
<section id="_rights_of_the_original_co_authors">
<title>Rights of the original co-authors</title>
<simpara>Co-authorship usually concerns the creation of a single &#8220;unique&#8221;
work that is more than the collection of its component
parts<footnote><simpara>Bercovitz Rodriguez Cano, R: <emphasis>Comentarios a la Ley de
  Propiedad Intelectual</emphasis>, 3rd Ed, 2007, p.114 ss.</simpara></footnote>. The contributions
may be indivisible, i.e. each individual contribution is not clearly
identifiable, e.g. when two authors write a text together. But it is
not necessarily the case: under Spanish law there may be co-authorship
even when the several components are distinguishable, but brought
together in a single work in which all the authors are involved
--- what one may call &#8220;horizontal&#8221;
collaboration<footnote><simpara>Case 17th December 1998, Audiencia Provincial
  of Asturias, Section 5 (Civil).</simpara></footnote>.</simpara>
<simpara>As we have seen above, in the case of collaborative works, the authors
are free to regulate the exercise of the copyrights by agreement.
Co-authors can agree how the program is made public (e.g. under a FOSS
license) and how decisions regarding the copyrights are made, e.g. by
normal or special majorities, or give one of them the right to make
all decisions regarding this work. They can also reach an agreement as
to the economic rights, such as royalty payments, and moral rights
e.g. under whose name the work will be published<footnote><simpara>Bercovitz
  Rodriguez Cano, R: op cit,  p. 136 ss.</simpara></footnote>.</simpara>
<simpara>If the co-authors have not reached an agreement, neither of the
authors is allowed to exercise the copyright separately, however each
may exploit his/her own contribution separately if this exploitation
does not prejudice exploitation of the work as a whole. So if a
programmer wishes to use his or her contribution in another manner,
this will be possible, provided this does not create, for example, a
competing product. In the absence of agreement, unanimity is required
for decisions, and in the absence of unanimity the court decides, and
the court will decide according to the provisions of the Civil Code in
relation joint properties<footnote><simpara>&#8220;Comunidades de bien&#8221;, Spanish
  Civil Code, Arts. 392 ss.</simpara></footnote> (which usually means a majority rule, and
by default contributions are deemed equal unless proof to the contrary
is provided). The court will also weigh different factors to
be taken into account, including good faith, the degree of
collaboration, the degree of substitution of the different
contributions, etc.<footnote><simpara>Bercovitz Rodriguez Cano, R: op cit,
  p. 134 ss.</simpara></footnote></simpara>
<simpara>As each author has the right to exploit his/her contribution, it is clear
that he/she may, in his/her name and without intervention of the other
authors, institute legal proceedings for an infringement of copyright
in the work, and in her contribution. This is clear in so far as such
proceedings are for an injunction to end the
infringement<footnote><simpara>Copyright Act, Art. 4, al. 2.</simpara></footnote>. What is not
so clear is the right to individual compensation and it is thought
that for these cases, the consent of the co-authors is required (see
above). However, in some cases the lack of unanimity may result in the
inadmissibility of this claim, e.g. if heirs of a programmer are
unable to agree as to whether to institute a claim<footnote><simpara>J.
  Miquel, in Bercovitz Rodriguez Cano, op cit, pp. 139-140.</simpara></footnote>.</simpara>
</section>
<section id="_authors_of_derivative_composed_foss_works">
<title>Authors of derivative / composed FOSS works</title>
<simpara>After some time FOSS will, in most cases, be a derivative work of the
original or a composed work which includes it. Derivative works and
composed works are works which reproduce parts or characteristics of
the original work, and in which the new authors bring an original
contribution (thus creating a new work) by way of transformation or
composition of the orignal. The author(s) of the derivative or
composed work hold independent and full copyright rights in the new
work. They are, however, restricted because the derivative
or composed work cannot be exploited without the consent of the holder
of the copyright on the original work. Under FOSS licenses this
consent is not a problem, subject to respecting the terms and
conditions (e.g. regarding further distribution of the derivative
work)<footnote><simpara>The copyright holders on the original work don&#8217;t
  obtain any rights in the derivative work. They can however, restrict
  or stop the exploitation of the derivative work (Art 9, Copyright
  Act).</simpara></footnote>. This issue gives rise to certain difficulties as it is not
always clear if the use of the previous work is by way of mere
reproduction (or compilation into a new work), or by transformation
of the previous work&#8201;&#8212;&#8201;depending on the FOSS licenses, different
conditions may apply. This may be key to understanding the impact of
copyleft obligations in the GPL (v2 or v3).</simpara>
</section>
<section id="_the_management_of_copyrights_in_foss_8201_8212_8201_transfers">
<title>The management of copyrights in FOSS&#8201;&#8212;&#8201;transfers?</title>
<simpara>In order to manage copyrights in FOSS better, it may be useful to
collect all copyrights concerning a FOSS project within one person or
organisation. The existence of this organisation will simplify the
management and enforcement of the (eventually joint)
copyrights<footnote><simpara>FSFE (Free Software Foundation Europe)
  recommends that developers of Free Software projects use its
  Fiduciary License Agreement (FLA) to assign their rights to a
  fiduciary (preferably the FSFE). For an analysis of the FLA also
  under Belgian law, see Y., VAN DEN BRANDE, &#8220;The Fiduciary Licence
  Agreement: Appointing legal guardians for Free Software Projects&#8221;,
  IFOSS L. Rev., Vol 1, Issue 1, p. 9.</simpara></footnote>. The collective management of
copyrights is perfectly possible under Spanish law, and is usually,
but not necessarily, regulated by an exclusive license or transfer of
copyrights to the person or organisation in question. As an
alternative, the rightsholders may authorise an organisation to take
legal action in respect of their work&#8201;&#8212;&#8201;as a fiduciary, the
party to whom the legitimation is granted shall not act for himself
but on account of others who have so authorised him/her (being the
current rightsholders)<footnote><simpara>An analogy is the right of
  collecting societies to take action in respect of the rights they
  manage.</simpara></footnote>.</simpara>
</section>
</section>
<section id="sec_spain_Moralcopyrights">
<title>Moral copyrights</title>
<simpara>Generally speaking, FOSS originated in the United States, and FOSS
licensing tends to attach less importance to the question of moral
rights of the author<footnote><simpara>Creative Commons tried to solve the
  moral rights issue when transposing the&#8201;&#8212;&#8201;original American ---
  licenses to local law. Xalabarder Plantada, R: <emphasis>Las licencias
    Creative Commons: ¿una alternativa al copyright?</emphasis>; UOC Papers. N.º
  2. UOC.
  <ulink url="http://www.uoc.edu/uocpapers/2/dt/esp/xalabarder.pdf">http://www.uoc.edu/uocpapers/2/dt/esp/xalabarder.pdf</ulink> (last visited 10.02.2011).</simpara></footnote>,
however it must be noted that one common factor among all FOSS licenses is
the obligation to maintain attribution to the original authors, and
indicate any modifications&#8201;&#8212;&#8201;a contractual form of guaranteeing certain
moral rights (paternity and integrity).</simpara>
<simpara>The Open Source Definition specifies that the author of software
distributed under a FOSS license cannot oppose the use of the software
by certain people and groups<footnote><simpara>OSD Clause 5.</simpara></footnote> or for
certain areas of application<footnote><simpara>OSD Clausule 6. Bruce
Perens indicates, e.g., that an author of FOSS cannot provide a clause
that prohibits the use of the software by regimes such as the former
South African apartheids regime (B., PERENS, &#8220;The FOSS Definition&#8221;,
<ulink url="http://perens.com/OSD.html">http://perens.com/OSD.html</ulink>).</simpara></footnote>. This runs contrary to the moral rights
of an author with respect to the uses to be made of his/her work. It
is clear under Spanish law that an author is not able to give up
his/her moral rights in his/her work<footnote><simpara>See above,
<xref linkend="sec_spain_moralrights"/>.</simpara></footnote>: any waiver to exercise in the future
one&#8217;s moral rights is void, including moral rights on
software<footnote><simpara>As an example, the Fiduciary License Agreemet
of FSFE expressly stipulates that it leaves the moral and/or personal
rights of the author unaffected (FLA §1 (2)).</simpara></footnote>. The author of a work
distributed under the FOSS license should theoretically therefore be
able to oppose any use of his/her work by people or groups or for
certain purposes which affect his honour or reputation, based on
his/her moral rights.</simpara>
<simpara>Moral rights are also carried through to derivative works: the author
of the original work will therefore, based on his/her moral rights, not
only be able to oppose the use by third parties of his work, but also
the use of derivative works which affect his/her honour or reputation.</simpara>
</section>
<section id="sec_spain_EnforcingFOSSlicenses">
<title>Enforcing FOSS licenses</title>
<simpara>The question whether a FOSS license can be enforced under the Spanish
legal system depends on whether a valid license has been granted. The
essential questions are: (i) between whom is a license reached,
(ii) has the license been validly reached and (iii) what are its terms?</simpara>
<simpara>Another dimension to this debate is whether a FOSS license can only be
considered a contract (requiring formalisation as such: an offer and
its acceptance, being a manifestation of consent to be bound by the
terms, often absent in FOSS practice), or seen as merely conditions to
an authorisation or form of donation (donation not of the software,
but of the non-exclusive rights to use them). Doctrine in Spain
generally holds that copyright licenses are
contracts<footnote><simpara>Rodríguez Tapía, JM, in Rodríguez Tapía,
  op cit, <emphasis>Comentarios</emphasis>, p. 407 and Gete Alonso y
  Carrera, Mª del Carmen, in Bercovitz Rodríguez Cano,
   op cit, p. 765. This is based on both the wording
  of the Copyright Act as to licenses (&#8220;cesiones&#8221;, in Articles
  42-50), and the Spanish Civil Code as to obligations&#8201;&#8212;&#8201;license
  conditions being seen as obligations imposed on the licensee by the
  rightsholder.</simpara></footnote>, although there may be scope in Spanish law for
arguing against the need to prove the requisites of a contract, and
merely defend the instrument as establishing the conditions to be
applied to the authorisation to use the software (breach of which
gives rise to a mere breach of copyrights).</simpara>
<simpara>Note however that it will not be in the interest of the licensee to
prove that a license has not been granted (whether by contract or
otherwise), as by default the law provides that third parties may not
exercise any exploitation rights without due authorisation (or
eventually, if a license can be deemed, the licensee&#8217;s use rights are
de minimis use rights provided by law: those necessary for fulfilling
the purpose of a contract). So from a licensee&#8217;s point of view, there
is no point in attacking the existence of the license, but, should
there be any conflict, rather the validity and scope/interpretation of
the terms.</simpara>
<section id="_license_parties">
<title>License parties</title>
<simpara>If a rightsholder makes his/her work available under a FOSS license,
the answer as to parties is usually clear: the license is reached
between the rightsholder and the licensee. In case of several
co-authors, the situation may be more complicated, and the question as
to with whom the licensee reaches a contract depends on the mutual
agreement between the co-authors<footnote><simpara>See above on
  &#8220;Authors/Beneficiaries&#8221;.</simpara></footnote>.</simpara>
<simpara>Often, a FOSS program will be the work of several authors who did not
work in joint collaboration. After all, FOSS is usually created via a
chain of authors who all contribute to the creation of the program
that is, in the end, licensed to the user/licensee. In so far as each
new author makes an original contribution to the work, a derivative
work is produced<footnote><simpara>See above, &#8220;Authors of derivative /
  composed FOSS works&#8221;.</simpara></footnote>. The licensee of the eventual work will need
to have the consent of every author in the chain who made an original
contribution to the final work, starting with the author of the first
work or version. This consent can be direct, or indirect by giving
consent in the FOSS license to the next author to modify and
distribute the work (verbatim or as modified).</simpara>
<simpara>Insofar as an &#8220;editor&#8221; (such as Red Hat or Novell) collates
different FOSS works into a new package, a collective work may be
created, and the licensee will have a license from, and need the
consent of, the editor&#8201;&#8212;&#8201;who in turn will have to manage the
upstream licenses.</simpara>
<simpara>Most FOSS licenses solve this by creating binding conditions between
the licensee and all authors in the chain. GPL version 3, for
instance, contains the following clause: &#8220;Each time you convey a
covered work, the recipient automatically receives a license from the
original licensors, to run, modify and propagate that work, subject to
this License&#8221;<footnote><simpara>GNU GENERAL PUBLIC LICENSE (GPL) version 3,
  article 10, <ulink url="http://www.gnu.org/copyleft/gpl.html">http://www.gnu.org/copyleft/gpl.html</ulink>.</simpara></footnote> and GPL version
2: &#8220;each time you redistribute the Program (or any work based
  on the Program), the recipient automatically receives a license from
  the original licensor&#8221;<footnote><simpara>GNU GENERAL PUBLIC
  LICENSE (GPL) version 2, article 6,
  <ulink url="http://www.gnu.org/licenses/old-licenses/gpl-2.0.html">http://www.gnu.org/licenses/old-licenses/gpl-2.0.html</ulink>.</simpara></footnote>.</simpara>
<simpara>In this way the user of the software obtains a license of all authors
in the chain. This chain of licenses is valid under Spanish law, and
it is argued that it must be this way, as non-exclusive licensees (the
intermediate creators, in the chain) are not entitled to relicense or
sublicense the original work.</simpara>
</section>
<section id="_validity_of_the_license_8201_8212_8201_as_a_contract_or_otherwise">
<title>Validity of the license&#8201;&#8212;&#8201;as a contract or otherwise</title>
<simpara>Contracts in Spanish law require an offer and acceptance of the offer
by way of a manifestation of a consent to be bound by the terms of the
offer<footnote><simpara>Spanish Civil Code, Arts. 1254 ss.</simpara></footnote>. Conventional IT
agreements are reached by the explicit acceptance of the terms and
conditions by the licensee through signing the terms and
conditions, by opening the packaging, by clicking or selecting an
&#8220;I agree&#8221; button, or indeed by any other action from which
acceptance can be deduced. These methods to reach a licensing
agreement have been sufficiently tried and tested and, at least
between commercial parties, are generally considered to be
valid<footnote><simpara>Aurelio López-Tarruella Martínez: <emphasis>Contratos
    internacionales de software</emphasis>, Editorial Tirant Lo Blanch. Barriuso
  Ruiz, C: <emphasis>La Contratación Electrónica</emphasis>, Dykinson 1998, p. 161.
  RUIZ PERIS, (Dir.): <emphasis>Oferta, perfección y prueba del contrato
    electrónico</emphasis>, in &#8220;Nuevas formas contractuales y el
    incremento del endeudamiento familiar&#8221;, Madrid: Consejo General
  del Poder Judicial, 2004, pp. 215-242.</simpara></footnote>.</simpara>
<simpara>Typically, in a FOSS environment, however, software is made available
with the simple specification on a website (&#8220;licensed under the GPLv2
license&#8221;) or in the source code of the software itself (in the code
file header and with luck, in a &#8220;COPYING.txt&#8221; file or a
<literal>/legal/</literal> folder). The license is not usually required to be
explicitly accepted, nor are the terms presented to the licensee/user.
Having to click and confirm every time could in some cases interfere
with the use of the software<footnote><simpara>This created signficant
  debate within the Debian community when Mozilla Foundation required
  acceptance of the Firefox/Thunderbird end user license as part of
  the installation process, and thus led to the creation of a fork,
  Iceweasel.</simpara></footnote>. In addition, the Open Source Definition opposes
demanding explicit agreement to the license conditions with the aim
of confirming the agreement between licensor and
licensee<footnote><simpara>OSD Criteria 10, online at <ulink url="http://opensource.org/docs/osd">http://opensource.org/docs/osd</ulink>.</simpara></footnote>.</simpara>
<simpara>The question is double: whether in these cases a valid license has been
entered into, and what are the applicable terms. The answer to the
first question must be affirmative. The reason is that the user of a
copyright protected work needs to be able to indicate the grounds on
which he/she is authorised to use the work. As we have seen, using
software without the rightsholder&#8217;s consent implies a copyright
infringement. This implies that everyone who wants to use software
which they find via the internet, needs to actively look for a
license. If the user cannot prove he/she has a license<footnote><simpara>Unless
  a legal exception applies.</simpara></footnote>, he/she must refrain from using it.</simpara>
<simpara>The trouble is that, without having had an opportunity to review the
terms and thus consent to them (and, sometimes in the case of FOSS,
the rightsholder not properly indicating the applicable terms, if any,
other than stating that the software is &#8220;free software&#8221;), the
licensee may be in a position to argue that certain terms are not
applicable or part of the agreement. Against this, the licensor would
generally argue that, in the absence of proof to the contrary, the
FOSS license conditions are the only terms under which he or she
licenses the FOSS, and thus if the user now disagrees to any of the
terms, then the licensor has granted no license to the licensee and
any use of the software is thus a breach of copyright. Furthermore,
Spanish courts would look, in the professional sector, at the uses and
customs in the sector, to determine if sufficient opportunity was
granted to read and accept the terms, and it is now fairly well
established that free software licensing terms are available to be
read in the source code or on the project website, and most software
developers know and apply this custom. Accordingly, as regards
professional developers who are FOSS licensees, it would be very
difficult to argue that there was no binding license between the
parties, or that the terms are unknown<footnote><simpara>They may be some
  doubt as to certainty, as the FOSS licenses are in English, however
  it is also a use and custom of the sector that most technical
  documentation is in English, thus a court may accept that use of
  English language for the license is acceptable. This would not apply
  to consumer licensees.</simpara></footnote>.</simpara>
<simpara>As we have noted above, it is doubtful whether any user would benefit
from disputing the existence of a FOSS license (except with regard to
disclaimers, for which see below). If the user disputes the conclusion
or validity of the FOSS license, this implies that no legally valid
copyright license was granted and the user therefore is not allowed to
use the software at all.</simpara>
</section>
<section id="_violation_of_license_conditions">
<title>Violation of license conditions</title>
<simpara>Breach of a FOSS license by a user/licensee could constitute a double
infringement in Spain: contractual breach of binding license
obligations, and breach of copyrights of the rightsholder. The
rightsholder may take action in civil courts under both claims (and
due to the possibility of arguing against the existence or need for a
contract, it would be recommended to sue on both grounds). In
addition, breach of copyright provides several interesting
remedies<footnote><simpara>See <xref linkend="sec_spain_legalprocedures"/> below.</simpara></footnote>.</simpara>
</section>
</section>
<section id="sec_spain_Disclaimersandliability">
<title>Disclaimers and liability</title>
<simpara>Typically, FOSS licenses contain very strong disclaimer clauses, which
attempt to discharge the author from all liability<footnote><simpara>See
  e.g., the BSD license
  (<ulink url="http://www.opensource.org/licenses/bsd-license">http://www.opensource.org/licenses/bsd-license</ulink>): THIS
  SOFTWARE IS PROVIDED BY &lt;copyright holder&gt; &#8220;AS IS&#8221; AND ANY EXPRESS
  OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
  WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE
  ARE DISCLAIMED. IN NO EVENT SHALL &lt;copyright holder&gt; BE LIABLE FOR
  ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR
  CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF
  SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR
  BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF
  LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING
  NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS
  SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.</simpara></footnote>.
The argument given for this is that FOSS is often made available
without a fee, as a result of which the author/rightsholder generates
insufficient income to pay for liability insurance and legal
costs<footnote><simpara>B., PERENS, &#8220;The Open Source Definition&#8221;, <emphasis>Open
  Sources: Voices from the Open Source Revolution</emphasis>,
  <ulink url="http://perens.com/OSD.html">http://perens.com/OSD.html</ulink> (last visited 10.02.2011).</simpara></footnote>.</simpara>
<simpara>Although this reasoning is certainly valid for the amateur programmer,
it applies much less for professional programmers who build their
business model around FOSS<footnote><simpara>See e.g., M., OLSON, &#8220;Dual
  Licensing&#8221;, in <emphasis>Open Sources 2.0: The Continuing Evolution</emphasis>
  (Ed. C., DiBona, D., Cooper and M., Stone), O&#8217;Reilly, 2006, p. 35.</simpara></footnote>.
To cover the eventuality of being held liable for a warranty of title
or quality, professional suppliers of FOSS or related services often
provide guarantees and technical support<footnote><simpara>The GNU General
  Public License expressly allows this (GPL v. 2, art. 11; GPL v. 3,
  art. 7).</simpara></footnote>.</simpara>
<simpara>Article 1902 of the Spanish Civil Code provides for strict liability
and indemnities for wilful misconduct (&#8220;culpa&#8221;) or negligence
(&#8220;negligencia&#8221;) in an extra-contractaul context (i.e. tort,
including breach of copyrights), as does Article 1101 for
contractual liability. Damages for wilful misconduct may not be
excluded at all, and those caused by negligence are subject to review
by the courts. Liability under these provisions would apply both in
the context of any problem with relation to title (copyright in the
code) or quality of the software. In addition, with respect to
quality, suppliers in a commercial relationship are liable to repair
damages caused by hidden defects (Articles 1461 and 1484 Civil Code).</simpara>
<simpara>More specifically as regards title, although in Spanish law there is
no such concept as a &#8220;warranty of title&#8221;, it is implicit that a
licensor must have sufficient rights to be able to grant a FOSS
license&#8201;&#8212;&#8201;in absence of which, the supplier will not only be in
breach of the third party&#8217;s copyright (and thus, in breach of the
obligation to ensure the licensee&#8217;s right of quite
enjoyment<footnote><simpara>&#8220;Goce pacífico&#8221; by analogy with rental
  agreements, under Spanish Civil Code, Article 1552.</simpara></footnote>) but also
liable under the aforementioned provisions relating to fraud or
negligence.</simpara>
<simpara>However, between professionals, the law allows parties to regulate
liability (except for fraud, and even negligence may not be wholely
excluded), for example limiting damages to the price paid for software
or establishing a process for maintenance and bug correction. In all
circumstances, the courts will look at the balance of rights and
obligations between the parties, in which case for FOSS significant
weight may be given to the free (gratis) nature of FOSS, as well as
the wide scope of rights granted to the licensee, as a balance against
the wide disclaimers.</simpara>
<simpara>It is doubtful whether the exoneration clauses or disclaimers
contained in FOSS licenses comply in full with the general validity
requirements under Spanish law, especially in relation to a consumer
licensee. These requirements include that the clauses are not against
the principle of good faith, do not upset the balance of obligations
and rights between the parties, and are not subject to the unilateral
discretion of one party (the licensor). Thus it will depend on each
circumstance whether the disclaimer clauses will be seen as valid or
not: the drafting of the clause, the balance of the parties, the
knowledge and experience of the licensee, etc. When the disclaimer
does not include the now-standard expression &#8220;to the extent permitted
by mandatory applicable law&#8221; (as in the BSD or MIT License), the
clause may be struck out as invalid, in part or in whole, as
contradictory to the aforementioned provisions of the Civil Code (if
not also consumer protection laws, see below). It is also important to
look at how the licensor presents the product (differentiating, for
example, system libraries or components, such as MySQL, and end-user
products such as Firefox or the GIMP). For a product that is presented
as finished and ready for use, the exoneration clause will be
considered invalid much more easily, than for a product for which the
licensor clearly formulated a reservation<footnote><simpara>To this extent,
  the EUPL establishes that the work is &#8220;in development&#8221; and not
  finished.</simpara></footnote>.</simpara>
<simpara>In so far as the aforementioned conditions have been complied with,
exoneration provisions will be enforceable in principle, unless the
stipulating party could be considered as a professional seller in a
relationship with a consumer purchaser<footnote><simpara>Many FOSS projects
  would not be seen as &#8220;sellers&#8221;.</simpara></footnote>. As mentioned above, professional
sellers are required to repair hidden defects in the products they
sell, except if the purchaser is a specialist in the sector, under
Article 1484 of the Spanish Civil Code. Contractual provisions may
modify this, if they are validly incorporated in the contract and not
invalidated for other reasons (see above, and in particular by
consumer protection laws). If the hidden defects are known, and this
state is not declared to the purchaser, then the supplier will be
liable not only to repair the defect but also for damages and
interest<footnote><simpara>Spanish Civil Code, Art. 1486.</simpara></footnote>. The professional
seller of FOSS may therefore be liable in principle, unless he can
provide proof of his ignorance of the bugs/mistakes. In practice while
this proof will be hard to provide (through due diligence in testing,
programming process and methodology, etc), take into account that it
is generally accepted that software is buggy and virtually impossible
to make perfectly.</simpara>
<simpara>Finally, these disclaimers will usually be held invalid with respect
to consumer users, both due to the scope of the disclaimers (being
deemed abusive<footnote><simpara>RDL 1/2007 on Consumer Protection, Arts. 82
  et seq.</simpara></footnote>) and due to the fact that a consumer in Spain would not be
expected to be able to understand a disclaimer in English (the language of
most FOSS licenses) and thus held not to be incorporated in the
consumer contract. On the other hand, it could be argued that as there
is no commercial relationship between the parties (and thus, the
licensor is not a &#8220;seller&#8221; of a product), then consumer protection
law may not apply to the full extent<footnote><simpara>RDL 1/2007 on
  Consumer Protection, Art. 114 et seq, and in particular Art.
  115.</simpara></footnote>. This argument is reinforced by the free (gratis) nature of
most FOSS.</simpara>
</section>
<section id="sec_spain_Thecopyleftprinciple">
<title>The copyleft principle</title>
<section id="_principle">
<title>Principle</title>
<simpara>A characteristic found in several (but not all<footnote><simpara>Neither the
  principles (freedoms) of the Free Software movement, nor the Open
  Source Definition mandate the copyleft clause. Several FOSS licenses
  don&#8217;t contain a copyleft clause. Examples of permissive (non
  copyleft) licenses are the modified Berkeley Software Distribution
  (BSD) license and the Apache 2.0 license.</simpara></footnote>) FOSS licenses is the
so-called &#8220;copyleft&#8221; principle. Copyleft FOSS
licenses, in return for the use rights
that are granted, require anyone who redistributes the copylefted
software or any derivative works of it to third parties, to do so
under the same license conditions<footnote><simpara>E.g., GPL version 3, Art. 5 stipulates: &#8220;You must
  license the entire work, as a whole, under this License to anyone
  who comes into possession of a copy. This License will therefore
  apply, along with any applicable section 7 additional terms, to the
  whole of the work, and all its parts, regardless of how they are
  packaged. This License gives no permission to license the work in
  any other way, but it does not invalidate such permission if you
  have separately received it&#8221;.  GPL version 2, Art. 2 b stipulates:
  &#8220;You must cause any work that you distribute or publish, that in
  whole or in part contains or is derived from the Program or any part
  thereof, to be licensed as a whole at no charge to all third parties
  under the terms of this License&#8221;.</simpara></footnote>. Thus, usually it would not be
legally possible to incorporate and redistribute copyright protected
parts of copylefted software in a proprietary licensed work.</simpara>
<simpara>It has been argued that this copyleft principle can restrict the
commercial use possibilities of the software<footnote><simpara>See e.g., M.,
  OLSON, &#8220;Dual Licensing&#8221;, in <emphasis>Open Sources 2.0: The Continuing
    Evolution</emphasis> (Ed. C., DiBona, D., Cooper and M., Stone), O&#8217;Reilly,
  2006.</simpara></footnote>. Warnings have also been issued regarding the dangers that
companies may run if a negligent or vindictive employee were to
incorporate a piece of copyleft code in a proprietary software
program. In theory this could mean that the company would be obliged
to make its proprietary software available under a copyleft FOSS
license or remove it from the market. Although caution is necessary,
one can ask  whether these &#8220;worst-case scenarios&#8221; are
realistic under Spanish law. The sanction for incorporating copyleft
code in proprietary software and distributing this under a closed or
proprietary license will usually be restricted to (a) a prohibition to
distribute the software whose license has been breached or (b) the
obligation to remove this piece of code from the program. In addition,
if the unlawful use has caused damage to the author, this damage will
need to be reimbursed, but not more than the damage actually suffered
(e.g. indemnities to the original copyright holder)<footnote><simpara>See
  &#8220;Damages&#8221; below.</simpara></footnote>. But in all events it is unlikely the owner of
the proprietary software would be obliged to release all its code
under the copyleft FOSS license.</simpara>
</section>
<section id="_validity_of_copyleft_obligations">
<title>Validity of copyleft obligations</title>
<simpara>The question relating to the validity of the copyleft clause coincides
with the question whether a rightsholder is able to validly establish
the conditions under which derivative or composite works must be
distributed. The answer to this question is affirmative: while the
righsholder of the original work does not hold any copyright in the
derivative work, he or she is entitled to determine the conditions for
the creation and redistribution of a derivative work of his/her
original work<footnote><simpara>Copyright Act, Article 99.b.</simpara></footnote>. A derivative
work can therefore only be exploited subject to the consent of the
copyright owner of the original work<footnote><simpara>Bercovitz Rodríguez
  Cano, op cit, pp. 1349 et seq.</simpara></footnote>.</simpara>
<simpara>As copyright holder, an author is thus able to authorise the use
of his/her work for a particular use, and link certain conditions to this.
This right to determine the destined use or conditions of use of a
work is clearly stated in the Copyright Act, in Article
43<footnote><simpara>Copyright Act, Article 43: &#8220;licenses are limited
    to the right or rights expressly granted, the modes of use
    expressly provided and the time and territory which are
    determined&#8221;. To be read in line with Article 1.255 of the
  Spanish Civil Code regarding the autonomy of contracting parties to
  determine the conditions of contract, subject to other laws,
  morality and public order.</simpara></footnote>. The rightsholder can therefore impose
the copyleft condition based on these rights.</simpara>
<simpara>All rights are subject to control against abuse, including copyright:
contractual conditions must comply with mandatorily applicable laws
(such as consumer protection, data privacy, etc.) morality and public
order. An author cannot therefore randomly exercise his/her economic and
moral rights. However, exercising his/her copyrights (by determining the
conditions of exploitation) cannot be considered as an abuse of rights
&#8220;as such&#8221;: only in exceptional cases will an author who invokes his/her
copyrights be guilty of an abuse of rights<footnote><simpara> Spanish Civil
  Code, Article 1.255. See Mª del Carmen Gente-Alonso, in Bercovitz
  Rodríguez Cano (Ed), &#8220;Comentarios&#8221; op cit, p. 772.</simpara></footnote>. We consider
that licensing a work under a copyleft restriction will in principle
not constitute an abuse of right, because the author, in
general, will be able to prove a legitimate moral or tangible interest
(and indeed a public interest to maintain the code in the
&#8220;commons&#8221;). A legitimate moral interest could be that of wanting to
keep the work within the FOSS community, including in modified form.</simpara>
<simpara>It is argued that the copyleft provisions may only affect works to
which the rightsholder is granted rights to control: the original
work, derivative works, and composite works incorporating the original
work. Copyright rights are not granted with respect of independent
works not included in this list, and it may be considered an abuse of
(copyright) rights trying to extend those conditions or provisions
beyond that which the Copyright Law has permitted the author to
control. Including for example, works in the public domain, works not
protected by copyright, and independent works e.g. stored on the same
carrier as the licensed work<footnote><simpara>Note that the Open Source
  Definition prohibits this under criteria 9.</simpara></footnote>.</simpara>
<simpara>However there is also an argument that, the license being considered a
contract, the licensee may be bound by whatever (legally valid)
conditions are imposed in the license, even outside the scope of
copyright law and including as to
&#8220;non-derivative/composite/collective&#8221; works. This is subject to
limitations, of course. Competition law, for example, would prohibit
certain forms of product bundling or restrictions on legitimate
uses<footnote><simpara>Ley 15/2007 de 3 de julio de Defensa de Competencia
  (e.g. Art. 2.2.e, on bundling in certain conditions)</simpara></footnote>, and
consumer protection law would prohibit restrictions  imposing
conditions on certain forms of claims for redress or indemnities.</simpara>
<simpara>In addition, it has been argued that copyleft restrictions may run
contrary to the exhaustion principle (with regard to the distribution
right). However, the Copyright Act specifies: &#8220;The first sale in the
European Union of a copy of a program by the copyright owner or with
his consent results in the exhaustion of the right to control the
distribution of that copy in the European Union, with the exception of
the right to control the further leasing and lending out of the
program or a copy thereof.&#8221;<footnote><simpara>Copyright Act, Art. 99 in
  fin. See also Software Directive, Art. 4, c.</simpara></footnote> Note that his
&#8220;exhaustion&#8221; only applies to controlling the tangible copy which has
been lawfully released in the European market. This does
not affect the right of the author to lay down certain conditions
regarding the use of the (intangible) work on that copy. The
conditions of use established in the license on this work &#8220;run&#8221; with
the tangible copy, as the sole authorisation to exploit the intangible
work on that copy.</simpara>
</section>
</section>
</section>
<section id="sec_spain_FOSSCasesinSpain">
<title>FOSS cases in Spain</title>
<simpara>While there have been several cases regarding the use of free content
(specifically within the context of paying collecting societies'
levies, or not, and the burden of proof<footnote><simpara>E.g. Decisions of
  21st February and 8th May 2008, Audiencia Provincial de Madrid, or
  Decision 28th of July 2009, A.P. Guipúzcoa.</simpara></footnote>), there have
been no cases regarding free and/or open source software. The judicial
consideration of &#8220;copyleft&#8221; as a concept within the aforementioned
free content cases is interesting, showing an increasing awareness of
judges with respect to FOSS licensing models.</simpara>
</section>
<section id="sec_spain_legalprocedures">
<title>Legal procedures</title>
<section id="sec_spain_LegalAction">
<title>Legal action</title>
<simpara>With regard to the enforcement of copyrights in Spain, Articles
138-140 of the Copyright Act provide for a broad range of actions, in
line with the EC IPR Enforement Directive 2004/48/EC. These actions
include:</simpara>
<simpara>a) Preliminary measures including (i) seizure of both infringing
software/goods and devices, (ii) embargo of bank accounts where
profits may have been deposited, and (iii) suspension of
non-authorised activities</simpara>
<simpara>b) Injunctions to (i) cease and desist from the illicit activity, (ii)
remove from the market any infringing articles, (iii) destroy any
illict software and devices, and (iv) suspend ISP services used
infringing IPR rights.</simpara>
<simpara>c) Damages and interest (see below)</simpara>
<simpara>Legitimation for taking action is vested in the copyright holder or an
exclusive licensee of the infringed copyright (i.e. either or both may
take action). Non-exclusive licensees may not, however a third party
(e.g. a fiduciary) may be authorised by a copyright holder to take
action on his/her behalf. Only authors may claim for breach of moral
rights.</simpara>
<simpara>Proceedings are taken before the Civil Courts, in accordance with the
standard procedures of the Civil Procedure<footnote><simpara>Law 1/2000, 7th
  January 2000.</simpara></footnote>. While the principles of international private law
applicable to software (applicable in Spain as in any other EU
jurisdiction) may complicate the question as to where a case may be
brought, Spanish courts follow EU Regulations in the matter (Brussels
and Rome I and II Regulations<footnote><simpara>&#8220;Brussels Regulation&#8221; Reg.
  (EC) No. 44/2001 on Jurisdictional Competency, and &#8220;Rome I adn II
  Regulations&#8221;, Reg. (EC) No. 593/2008 and Reg. (EC) No. 864/2007
  respectively.</simpara></footnote>). Depending on the cause of action taken (IPR breach,
contractual breach) and the nature and domiciles of the parties, the
courts and applicable law may vary.</simpara>
<simpara>Criminal law also sanctions copyright breaches for commercial (profit)
purposes<footnote><simpara>Spanish Criminal Code, Fundamental Law 10/1995,
  as amended, Articles 270-272.</simpara></footnote>, providing jail sentences up to two
years and/or equivalent fines (12-24 months) for those who, for profit
and in prejudice to a third party, reproduce, distribute or publically
communicate a work or its derivative, in any media, without the
corresponding authorisation from the rightsholder. The same sanction
is given to those who would import, export or stock copies of works
without authorisation, and those who manufacture, import or deal in
any device specifically aimed to supress or neutralise technological
protection measures applied to protect software or other protected
works.</simpara>
</section>
<section id="sec_spain_Damages">
<title>Damages</title>
<simpara>Damage caused by copyright violations are compensated under Spanish
law in accordance with the Articles 138 and 140 Copyright Act, and
generally applicable principles of law relating to unlawful acts
(extracontractual infringements) and breaches of
contract<footnote><simpara>Article 1902 of the Spanish Civil Code for breach
  of non-contractual obligations (negligence, wilful misconduct) and
  1101 for contractual obligations.</simpara></footnote>. According to the specific
provisions of Article 140 of the Copyright Act, an injured party of a
copyright breach may request compensation for the loss actually
suffered and profits that were not gained. This can be calculated as
either a) the negative economic consequences (including loss of profit
/ profits made by the infringer) or b) the amount the licensor would
have received had the infringer asked for consent to use the protected
work in the infringing manner<footnote><simpara>This is in line with Arts.
  13 and 14, IPR Enforcement Directive 2004/48/EC.</simpara></footnote>. Dual damages,
triple damages or other forms of punitive or special damages are not
awarded under Spanish law. Costs spent on tracing and prosecuting
infringements may also be compensated<footnote><simpara>Copyright Act, Art.
  140.1.</simpara></footnote> and authors, when involved may also claim for breach of
moral rights, giving rise to further damages.</simpara>
<simpara>Infringements of software copyrights follow the same regime as
infringements of every other copyright<footnote><simpara>Copyright Act, Art.
  103.</simpara></footnote>. The aforementioned principle is therefore applicable in the case
of copyright infringements of software. Infringements of copyright
protected software distributed under a FOSS license would be
sanctioned in the same manner (including provisional and precautionary
measures such as seizure of infringing works, interlocutory
injunctions, etc.). In no way whatsoever has the author given up his/her
rights.</simpara>
<simpara>It is yet to be seen whether the argument that, having given up rights
to royalties in the FOSS license, the licensor&#8217;s right to damages
would be limited, is correct. We would differ. Besides establishing his/her
reputation and recognition, an author
can have other reasons to make a work &#8220;freely&#8221;
available<footnote><simpara>See e.g. C., DIBONA, D., COOPER and M., STONE,
  &#8220;Introduction&#8221;, in <emphasis>Open Sources 2.0: The Continuing
    Evolution</emphasis> (Ed. C., DiBona, D., Cooper and M., Stone), O&#8217;Reilly,
  2006.</simpara></footnote>. The author may also have a direct monetary advantage from
the free distribution of his work. The simplest way is circulating the
free works with advertising. Another way is providing specific services
relating to the work. The free circulation of the work ensures the
work has many users. The author generates his/her income from the
provision of support and consulting services, licensing &#8220;proprietary&#8221;
add-ons<footnote><simpara>Extensions or additions to the free work to which
  the author reserves all rights, and which can only be used against
  payment.</simpara></footnote>, or so-called &#8220;dual licensing&#8221; the code. This model uses
--- as the name indicates&#8201;&#8212;&#8201;two different licenses for distribution
of the software. The first license is often a FOSS copyleft license
and ensures the work is circulated quickly and has a wide range of
users. A second license (without the copyleft obligations) can then be
obtained against payment by interested parties who want to use the
work without their own additions or modifications being affected by
copyleft<footnote><simpara>See e.g. M., OLSON, &#8220;Dual Licensing&#8221;, in
  <emphasis>Open Sources 2.0: The Continuing Evolution</emphasis> (Ed. C., DiBona,
  D., Cooper and M., Stone), O&#8217;Reilly, 2006, p. 35.</simpara></footnote>.</simpara>
</section>
<section id="_recommended_literature">
<title>Recommended literature</title>
<section id="_general_literature_on_copyright_law">
<title>General literature on copyright law</title>
<itemizedlist>
<listitem>
<simpara>
Rodrigo Bercovitz Rodríguez-Cano (Ed): &#8220;Comentarios a la Ley de
  Propiedad Intelectual&#8221;, (3rd Edition, 2007), Tecnos, Madrid.
</simpara>
</listitem>
<listitem>
<simpara>
Rodrigo Bercovitz Rodríguez-Cano et al., &#8220;Manual de Propiedad
  Intelectual&#8221;, Tirant lo Blanch, Valencia.
</simpara>
</listitem>
<listitem>
<simpara>
José Manuel Rodríguez Tapia et al., &#8220;Comentarios a la Ley de
  Propiedad Intelectual&#8221;, Aranzadi, Navarra 2007.
</simpara>
</listitem>
<listitem>
<simpara>
Alejandra Castro Bonilla, AUTORÍA Y TITULARIDAD EN EL DERECHO DE AUTOR, <ulink url="http://www.informatica-juridica.com">http://www.informatica-juridica.com</ulink>, last visited 10.08.2010.
</simpara>
</listitem>
</itemizedlist>
</section>
</section>
</section>
</section>
</article>