LA TRANSMISIÓN MORTIS CAUSA DE LOS DERECHOS DE EXPLOTACIÓN DEVENGADOS DE LAS CREACIONES LITERARIAS, ARTÍSTICAS Y CIENTÍFICAS: CONTROVERSIAS TESTAMENTARIAS EN MATERIA DE PROPIEDAD INTELECTUAL.

Abstract

Book One of Royal Legislative Decree 1/1996 of 12 April passing the Revised Intellectual Property Act devotes Title V to right transfers. In particular, while article 43 addresses the system for intervivos transfers, article 42 deals expressly with the procedure for transfers taking place on mortis causa grounds. It reads, «Exploitation rights in the work are transferred mortis causa by any of the means allowed by law». In other words, whereas intellectual property is made up of rights of a personal and economic nature, article 42 is circumscribed to the sphere of rights of an economic nature, or exploitation rights. These, in turn, may be split into rights of reproduction, distribution, public communication and conversion. In this sense, exploitation rights may be held as easily by the creator of the copyright at issue (covering a literary, artistic or scientific work) as by a third party to whom exploitation has been assigned. Thus, the mortis-causa transfer in article 42 refers to the right holder, whether the right holder is the creator, the author, the exclusive assignee or a non-exclusive assignee of the copyright's economic sphere. With these basic elements in hand, a review is given of the rights, stemming from an author's works, that belong to the heirs to a mandatory legal share of the author's estate and the provisions made by the testator or donor. The leading controversies in these matters that have come to court include a suit filed against the Camilo José Cela Foundation by Camilo José Cela's son, as heir to a forced share in his father's estate.