© 2000-2003 Daliv Group
1.What is the copyright?
The copyright is the right of an author of an
intellectual creation to allow or forbid other persons to
use his/her work.
2.Which are the intellectual
creations protected by the copyright?
According to Article 7 of the Law 8/1996 on copyright and
related rights, the intellectual creations protected by
the law are "original literary, artistic or
scientific intellectual creations, regardless of the
modality of creation, of the way or the concrete form of
a) literary or press writings, conferences, sermons,
pleas, speeches and any other written or oral works, as
well as computer programs;
b) scientific works, oral or written, such as:
conferences, studies, university courses, school manuals,
projects or scientific documentation;
c) musical compositions with or without lyrics;
d) dramatic, dramatic-musical, choreographic and
e) cinematography works, as well as any other audiovisual
f) photographic works, as well as any other work
expressed through a procedure analogous to photography;
g) plastic art works, such as: sculpture, painting,
graphics, engraving, lithography, monumental art,
stagecraft, tapestry, ceramics, metal and glass plastic,
as well as art work applied on products destined for
h) architecture works, including sketches, lay models and
graphic works that are part of the architecture projects;
i) plastic works, papers and drawings belonging to
topography, geography and science in general."
According to Article 8, original works are also
protected, without any prejudice brought to copyright. By
original work it is understood " derived works which
were created starting from one or several preexistent
works, such as:
a) translations, adaptations, annotations, documentary
works, musical arrangements and any other transformations
of a literary, artistic or scientific works which
represent a work of intellectual creation:
b) anthologies of literary, artistic or scientific works
such as: encyclopedias and anthologies, collections or
compilations of materials or dates, protected or not,
including databases which, through the choice or the
arrangement of the material constitute intellectual
To be noted that the original or derived works enumerated
by Articles 7, letter a-i and 8, letter a-b have only an
orientating character and the protection may extend to
other expressions of the intellectual creation, as well.
3.Can inventions be protected
No, inventions are not protected by copyright. However,
they are under the specific protection of the legislation
referring to inventions.
4.How can an author or the
owner of the copyright cede it?
First of all, only patrimonial copyrights can be ceded.
This is done in a contract and can be limited to specific
rights, territory and duration. The ceding of patrimonial
copyrights may be exclusive or non-exclusive.
Exclusive cession is characterized by the fact that the
titular (owner) of the copyright:
- may no longer use the work in the situations specified
by the contract (this right exclusively belongs to the
- may not transmit the copyright to another person;
- the exclusive character of the cession must be
expressly specified in the contract;
Non-exclusive cession is characterized by the fact that
the titular (owner) of the copyright:
- may use the work, as well;
- may transmit the non-exclusive right to other persons;
- the non-exclusive cessionary may only cede the right to
use the work only with the explicit agreement of the
titular of the copyright.
5.What are the mandatory
clauses that should be contained by a patrimonial
copyright cession contract?
According to Article 41-(1), the patrimonial copyright
cession contract must contain:
- transmitted patrimonial rights;
- modalities of utilization;
- the time-frame and the extension of the cession;
- the remuneration of the titular of the copyright;
If any of these elements is missing, the interested party
has the right to demand the annulment of the contract.
Besides these specific clauses, the copyright cession
contract must also contain the essential elements of any
6.Is the written form
mandatory for a contract of patrimonial copyrights
Yes, the cession contract of the patrimonial copyrights
is one of the contracts for which the written form is
provided by the law. In this sense, Article 42 explicitly
specifies: "The existence and the contents of the
patrimonial copyrights cession contract can only be
proven by the written form of the contract. Exception to
this law are the contracts having as object works used in
7.Is it possible to cede the
patrimonial rights regarding ALL the future works of the
No. Such a contractual clause is null and void from the
8.What can the author do in
case the remuneration was not established in the
In this situation, the titular of the copyright has two
1) to require the annulment of the contract;
2) to solicit a competent Court to establish a
remuneration. In this case, the Court will establish the
remuneration "taking into account the sums usually
paid for the same category of works, the destination and
the duration of the utilization, as well as other
circumstances of the case". (Article 43-2 of the Law
9.What can the author do in
case there is a significant disproportion between his/her
remuneration and the benefits of the cessionary?
The author has the right to ask a competent Court to
revise the contract or to augment the remuneration. The
law does not specify a quantum for the disproportion
between the remuneration and the benefits of the
cessionary. The term "obvious disproportion" is
used in the law. Therefore, it is the Court which decides.
According to the particularities of each case, the Court
will rule in favor of an augmentation of the remuneration
if it appreciates that the disproportion is obvious and
that it is equitable that the remuneration be increased.
Last but not least, the attorney holds a very important
role in the success of such an action. An attorney
specialized in copyright matters will be able to persuade
the Court of the equity of such a request.
10.Who has the copyright in
case of a work created while in an individual work
The patrimonial copyright over the works created as a
result of a work contract may belong both to the author
and to the employer. Thus, the patrimonial copyrights
- the author of the created work in the situation in
which there is no contrary clause in the work contract;
- the employer, in case the contract contains express
clauses in this sense.
These clauses must also contain the extent of time over
which the patrimonial copyrights have been ceded. If the
term is not specified, it is considered to be 3 years
from the date the work was turned in.
Therefore, watch out! The fact that certain clauses
regarding the beneficiary of the patrimonial copyrights
are missing from the individual work contract is only in
the advantage of the author.
Specific, explicit clauses must be put in the contract,
in order for the patrimonial copyrights to belong to the
There is an exception from this rule in case of computer