– Article 270 of the Criminal Code of November 23, 1995.
– Legislative Act 1 of April 12, 1996, approving the revised text of the Copyright Act to regularize, clarify, and harmonize the legal provisions in force.
Membership in International Conventions
– Berne Convention for the Protection of Literary and Artistic Works.
– Geneva Convention for the Protection of Literary and Artistic Works (1952).
– WTO’s TRIPS Agreement, in force since January 1, 1996.
The general legal framework for the protection of computer programs in Spain is set out in Title VII (Articles 95 to 104) of Legislative Act 1 of April 12, 1996, approving the revised text of the Copyright Act. The protection of computer programs has been explicitly excluded from the field of patents under Article 4, paragraph 4c, of Law No. 24/2015 of July 24, 2015, which provides that “schemes, rules and methods for performing mental acts, playing games or doing business, and computer programs” shall not be regarded as inventions and shall therefore not be patentable. However, software-implemented inventions can be eligible for patent protection when the subject matter is not the software as such but an invention that incorporates the computer program.
Definition and Conditions of Protection
Definition: all forms of expression of a computer program are eligible for protection except those designed to cause harmful effects to computer systems. Computer programs are defined as any sequence of instructions intended for use, directly or indirectly, in performing a function or task or to achieve a given result in a computer system, irrespective of the form of expression and material means employed. The term “computer program” encompasses the preparatory documentation. The ideas and principles on which any component of a computer program is based, including those for its interfaces, are not protected under the Law. Computer programs are eligible for protection only if they are original intellectual creations of the author.
Right to protection: belongs to the author of a computer program who is considered to be the person or group of individuals who has created it or to the legal person who edits and discloses it under his name.
Effects of Protection
Extension: the exclusive right to exploit a computer program includes the right to carry out or authorize: (a) the reproduction in full or in part by any means and in any form, either permanent or temporary; (b) the translation, adaptation, reworking or any other transformation and reproduction of the results of such actions, without prejudice to the rights of the person who has transformed the computer program; (c) all forms of public distribution, including rental of the original computer program or copies thereof.
Duration of protection: (a) for legal persons: seventy years from 1st January of the year following the year of publication or of creation, if the program has not been published; (b) for a natural person: for the author’s lifetime and an additional seventy-year period after the author or the surviving co-author has died or been declared legally dead.
Infringement: according to the Copyright Act, an infringement of the intellectual property rights of a computer program is committed by those who (a) bring into circulation one or more copies of a computer program when they know or can assume that they are unlawful; (b) stock for commercial purposes one or more copies of a computer program when they know or can assume that they are unlawful; or (c) bring into circulation or stock for commercial purposes any instrument whose sole purpose is the unauthorized removal or disablement of any technical device used to protect a computer program. According to CJEU's decision on the IT Development case, the breach of a software license shall also be considered an infringement of intellectual property rights. Pursuant to the Revised Criminal Code (Organic Act No. 1/2015), the criminal offense of infringement is defined as (a) copying, plagiarizing, distributing, communicating to the public, or financially exploiting in any other manner, in whole or in part, the literary work (software), without the consent of the copyright holder, for direct or indirect financial gain, and to the detriment of a third party; (b) within the context of the provision of information society services, with the aim of obtaining direct or indirect financial gain to the detriment of a third party and without the right holder’s consent, actively facilitating access or the location on the Internet of copyright-protected works or subject matter, in a manner that surpasses mere technical processing, in particular, offering ordered and classified lists of links to works and content, even if those links have initially been provided by the users of the services; (c) favoring or facilitating the perpetration of the conduct referred to in sections (a) and (b) by suppressing or modifying any effective technological measures incorporated for the purpose of preventing or restricting such conduct without the consent of the right holder or the assignees; (d) facilitating third-party access to a copy of a work, circumventing or facilitating the circumvention of any effective technological measures designed to block access to the work without the consent of the right holder or the assignees, provided that there is an intention of obtaining direct or indirect financial benefit; (e) exporting or storing copies, including digital ones, of the said works, for the purpose of copying, plagiarizing, distributing, and/or communicating them to the public; (f) importing the said goods, regardless of whether they were produced lawfully or unlawfully in the country of origin, with the aim of reproducing, distributing or communicating them to the public, except where they have been imported from an EU country after being acquired directly from the right holder in that country or with his consent; and (g) manufacturing, importing, putting into circulation or possessing, for commercial purposes, any means primarily conceived, produced, adapted or made to facilitate the unauthorized suppression or neutralization of any technical device that has been used to protect computer programs or any of the other works.
Penalties: imprisonment of from six months to four years and a fine. Regarding the actions described in section (g) the imprisonment term is from six months to three years. In cases of itinerant or merely occasional trade, the term of imprisonment is from six months to two years. However, depending on the profile of the guilty party and provided that the profit that was obtained or could potentially have been obtained was low, the courts may instead impose a fine equivalent to a period of one to six months or thirty-one to sixty days of community service. For issues relating to the criminal liability of legal persons, civil liability, and interlocutory relief, the situation is as in the case of “patents“.
Exceptions, limitations and exhaustion of rights: according to the Spanish Copyright Act those rights are limited in the following ways: (1) the authorization of the rightholder shall not be required, in the absence of a contractual provision to the contrary, for reproduction or transformation of a computer program, including the correction of errors, where those acts are necessary for the use of the program according to its intended purpose by the lawful user; (2) the making of a reserve copy by the person who holds the right to use the program may not be prevented by contract insofar as it is necessary for such use; (3) the lawful user of the copy of a program shall be entitled to observe, study or verify the operation thereof, without prior authorization from the rightholder, for the purposes of ascertaining the ideas and principles underlying any element of the program, provided that this is done in the course of any of the operations of loading, display, operation, transmission or storage of the program that he is entitled to perform; (4) unless otherwise agreed, the author may not object to the assignee who holds the exploitation rights carrying out or authorizing the carrying out of successive versions of his program, or of programs derived therefrom; (5) the authorization of the holder of the rights shall not be necessary where the reproduction of the code and the translation of its form is essential to the securing of the necessary information for achieving interoperability of an independently created program with other programs. This exception shall be applicable insofar as the information obtained (a) is used solely for the achievement of the interoperability of the independently created program; (b) is communicated to third parties only where essential to the interoperability of the independently created program; (c) is not used for the development, production or commercialization of a program substantially similar in its expression, or for any other act that infringes copyright. On another note, the first sale of the computer program in the European Economic Area exhausts the distribution right on that copy. Since 2012, following the UsedSoft Judgment of the Court of Justice of the European Union subsequently confirmed by the CJEU in its "Ranks" (C-166/15) judgement, the licensing of a computer program for a price and without limitation in time is considered equivalent to a sale, so in these circumstances that right must similarly be deemed exhausted.