A recent sentences of the Supreme Court has put an end to the
litigation that arose between the heirs of the British writer GKChesterton and a
Spanish editorial due to the discrepancies regarding the within
protection applicable to his works in Spain. The ruling confirms that
Chesterton's works, like those of any author, national or foreign,
who had died under the validity of the spanish law from 1879, are protected
in Spain during a term of 80 years post mortem auctoris.
litigation that arose between the heirs of the British writer GKChesterton and a
Spanish editorial due to the discrepancies regarding the within
protection applicable to his works in Spain. The ruling confirms that
Chesterton's works, like those of any author, national or foreign,
who had died under the validity of the spanish law from 1879, are protected
in Spain during a term of 80 years post mortem auctoris.
The Royal Literary Fund (RLF) is a British foundation,
heir and representative of the rights of the writer GKChesterton. Enokia,
SL is a Spanish company that owns a well-known publishing house
mainly for its collections of classic authors. RLF filed suit
against the Spanish publisher due to the publication and marketing by
part of the latter in a series of titles by the British writer, who, to
understand the foundation, were not yet in the public domain in
Spain. Consequently, it requested a declaration that the edition, publication and
commercialization of Chesterton's works constituted an infringement of the
intellectual property rights of the plaintiff, condemning the lawsuit to
cease exploitation of the works and compensate the owners for the
patrimonial and moral damages caused.
heir and representative of the rights of the writer GKChesterton. Enokia,
SL is a Spanish company that owns a well-known publishing house
mainly for its collections of classic authors. RLF filed suit
against the Spanish publisher due to the publication and marketing by
part of the latter in a series of titles by the British writer, who, to
understand the foundation, were not yet in the public domain in
Spain. Consequently, it requested a declaration that the edition, publication and
commercialization of Chesterton's works constituted an infringement of the
intellectual property rights of the plaintiff, condemning the lawsuit to
cease exploitation of the works and compensate the owners for the
patrimonial and moral damages caused.
On April 13, 2015, the Supreme Court ruled
finally in favor of the British foundation stating that the protection
conferred by the Spanish Law of 1879 clearly establishes a term of 80 years
pma
finally in favor of the British foundation stating that the protection
conferred by the Spanish Law of 1879 clearly establishes a term of 80 years
pma
The Court also adds that cannot be accepted
statement of the appellant, about a possible discriminatory result and
unfair for national authors. Although it is true that, unlike the
foreign authors, the requirements for registration in the Registry were
applicable to nationals, it is also true that the 1987 law not only eliminated
this differentiation, but also established mechanisms to alleviate unfair treatment
that they had received under the legislation.
statement of the appellant, about a possible discriminatory result and
unfair for national authors. Although it is true that, unlike the
foreign authors, the requirements for registration in the Registry were
applicable to nationals, it is also true that the 1987 law not only eliminated
this differentiation, but also established mechanisms to alleviate unfair treatment
that they had received under the legislation.
The complexity – and richness – of this lawsuit is motivated
because the solution to the conflict (the determination of the term of protection of
the works of the British writer in Spain), requires a work of integration and
reconciliation of various norms that are found in spatial and
different times. To the problems of transitional law specific to the law
Spanish legislation adds those derived from having to reconcile the different regulations
applicable – the national, the community and that contained in the Conventions
international -, in some points contradictory.
because the solution to the conflict (the determination of the term of protection of
the works of the British writer in Spain), requires a work of integration and
reconciliation of various norms that are found in spatial and
different times. To the problems of transitional law specific to the law
Spanish legislation adds those derived from having to reconcile the different regulations
applicable – the national, the community and that contained in the Conventions
international -, in some points contradictory.
That the works of GK Chesterton be protected in Spain by
A period of 80 years would not be so shocking if it were not for the fact that in the United Kingdom
United Kingdom, the writer's country of origin, the rights to them are
in the public domain since 1986 or, at the latest, since 2006
(after the enlargement carried out by Directive 93/98/EC). The fact is even more
surprising considering that Spain would be the only country where, today
Today, the rights to Chesterton's work are still in force.
A period of 80 years would not be so shocking if it were not for the fact that in the United Kingdom
United Kingdom, the writer's country of origin, the rights to them are
in the public domain since 1986 or, at the latest, since 2006
(after the enlargement carried out by Directive 93/98/EC). The fact is even more
surprising considering that Spain would be the only country where, today
Today, the rights to Chesterton's work are still in force.
In an attempt at abstraction, it could be stated that the conclusion reached by the Supreme Court
Spanish is the result of the application of three fundamental principles:
Spanish is the result of the application of three fundamental principles:
- The principle of non-discrimination between nationals
community. GK Chesterton's works are protected in Spain for 80 years
like those of any other community author – Spanish or not – because, otherwise
Otherwise, the writer would be granted discriminatory treatment in
relationship with the rest of national authors, whose works would be protected
during that entire period. - Respect for the
acquired rights. In accordance with this principle of respect for the rights
acquired, together with the game of
transitional provisions of the successive intellectual property regulations,
It would turn out that authors who died before 1987 were not
neither the 60-year term initially provided for in the 1987 law would apply, nor
nor the 70 set after community harmonization, but the 80 years of
the Law of 1879. - Minimal protection. Article 5.2 of the Berne Convention
establishes that the enjoyment and exercise of the rights recognized therein
"They will not be subordinated to any formality". The 1987 law, in sign of
rejection of the previous formalist system, compensated the authors who had
suffered by allowing them “rescue” from the public domain the works that had
fallen into it for not having been registered.
Without downplaying the importance of the victory of the Royal Literary
Fund in the defense of the rights of the brilliant writer, the truth is that the
implications of this ruling of the Spanish Supreme Court go much further
there. In case there was any doubt, the term of protection in Spain for works
of authors – national or not – who died before 1987 is 80 years
pma This sentence has probably come as a pleasant surprise to the
heirs of many authors whose works were already believed to be in the public domain.
Fund in the defense of the rights of the brilliant writer, the truth is that the
implications of this ruling of the Spanish Supreme Court go much further
there. In case there was any doubt, the term of protection in Spain for works
of authors – national or not – who died before 1987 is 80 years
pma This sentence has probably come as a pleasant surprise to the
heirs of many authors whose works were already believed to be in the public domain.
NB. Spanish version of the article published in the Kluwer Copyright Blog
