Intellectual property over advertising work: Towards a new legislative configuration in Spain
José Domingo Portero Lameiro
Bearing in mind the regulatory insufficiency concerning advertising work that the Law of Intellectual Property (1/1996, of April 12th) presents (also a problem of comparative law, both in continental surroundings as in the English horizon) this investigation assumes the following goal: to plan a partial reform of the mentioned legal text that allows a complete protection of the publicity work, aiming that the current lack of precision and its harmful consequences in terms of legal protection disappear. So, the author starts with the following hypotheses:
After the study of the legislative precedents of jurisprudence, and as a result of the legal analysis - formal and material – of the research questions, the author considers that the legal treatment provided in the Civil Code regarding the work contract or the lease (arts. 1544 and 1588 CC), it is thought more for the elaboration of a material work than for the elaboration of an intangible work (as it is the publicity creation).
- For its enormous economic relevance and for its undoubted intellectual feature, the publicity creations deserved the design of a new category in the protected works (art. 10 LPI);
- The advertising work would be located under the protection of the Intellectual Property whenever it meets the protection requirements: originality and expression (art. 10 LPI), but this Law does not contain a definition of what must be understood as “original”, concept that should be legally integrated;
- General Law of Publicity (34/1988 of November 11st), in relation to the legal framework of the advertising creation contract (art. 20 LGP), does not regulate the existence of a charge in favor of an advertiser or agency.