The legal status of copyleft before the Spanish courts

Abstract

This article studies the current understanding of copyleft by the Spanish judicature from the analysis of the collection of judgments delivered since the first appearance of this new concept in court in 2005.

Two different main issues are discussed in this article: on one hand, the attitude of Spanish courts to copyleft, on the other, their approach to copyleft and moral rights. The study of the first point is based on the review of 20 judgments concerning musical works and the characteristics and importance of two existing case law presumptions, their application by the courts, and the lessons that may be drawn from four relevant cases. The study of the second element is based on the review of the only case which connects copyleft with moral rights by contrasting court's findings with the broad frame of protection to moral rights existing in Spain.

Europe has recently witnessed a first launch of judicial decisions on open content and copyleft issues. From a practical perspective, the author explains the general framework designed by case law in Spain and points out several critical issues about the exercise of some moral rights over copyleft works in one of the jurisdictions with stronger moral rights protection.

Keywords: copyleft, moral rights, Spain