YEAR 2016

ISBN 978-84-9085-841-7

The (relative) constitutionality of copyright in Spain: Background and status of the question

José Domingo Portero Lameiro




Favoured by the recognition of free enterprise within the framework of the market economy that the Spanish Constitution proclaims, intellectual creations have enormous economic importance and, so, generate privileges for their creators. This study analyses the constitutionality of these copyrights in Spain. Matter encouraged by the lack of a clear position on the matter in the Magna Carta. Quite the contrary to the way of approaching the constitutional protection of consumers and users of these intellectual works, by virtue of the right to culture. Thus, the interpretation of various precepts of Norma Normarum becomes interesting. In any case, there is no unanimity in admitting copyright as a fundamental right, furthermore, against it, the Intellectual Property Law is an ordinary and not organic law. However, to the author, we must accept the constitutionality of copyright based on the necessary subjection to the Universal Declaration of Human Rights and to international treaties and agreements on the same matters ratified by Spain. Thus, the economic effects derived from this assessment cannot be ignored, since even more substantial claims for copyright infringement could arise. In short, and taking into account that Spanish constituents had excellent precedents (such as the Portuguese Constitutional Text), it is lacking that they did not express the same exactitude in Spanish Basic Norm, since the aforementioned imprecision makes the inference indispensable which, in turn, can cause confusion.