The turn of the year is usually accompanied by press articles reporting on the authors and creators whose works enter the public domain in that year. This year, for example, it is Antonio Machado’s turn. But what exactly does it mean for a work to enter the public domain?
Intellectual property rights are very unique rights, and although—as a form of property right—they grant absolute control over the protected work (just as would be the case with a property right in real estate, for example), they have a limited duration. Once that duration has elapsed, the right ceases to have full effect, and the previously protected work may be used by anyone without the need to obtain a license.
Through this mechanism, the legislation seeks to strike a balance between allowing creators to reap the benefits of their work and, at the same time, granting society at large indefinite access to such works after a certain point in time, as an expression of its own culture.
Under current Spanish law, the rights to exploit a work remain in effect for 70 years after the author’s death and are calculated starting on January 1 of the year following the author’s death or the declaration of the author’s death.
If there are multiple authors, the calculation will be based on the death or declaration of death of the last of them.
However, there have been previous laws in Spain on this matter that established longer terms of protection. That is why the legislature has established a longer term of protection for authors who died before December 7, 1987. In such cases, the term of protection is 80 years rather than 70.
Furthermore, it is important to note that intellectual property rights are national rights, meaning that each country is free to establish its own criteria in this regard.
Thus, there are countries such as Mexico that have a longer term of protection than that applicable in Spain, and others, such as Canada, that have a shorter term of protection. Furthermore, just as has been the case in Spain, terms of protection may change over time.
There are even some special cases, such as the rights to James Barrie’s play “Peter Pan” in the United Kingdom, which were extended in perpetuity by the Queen of England after the author bequeathed them to a children’s hospital upon his death.
In short, and as we can see, the availability of works in the public domain can lead to interesting opportunities for personal enjoyment and even commercial use. However, it is very important not to lose sight of the territorial nature of intellectual property rights and their nuances, which can result in a work being in the public domain in one territory but not in another; in the latter case, the relevant license must still be obtained.
Author: Mabel Klimt