Intellectual property rights in the Spanish Constitution: observations on strengthening protection and promotion.

Joaquín de Fuentes Bardají and Isabel Aramburu Muñoz, lawyers at Escalona & De Fuentes

>There is no doubt that intellectual property is a manifestation of private property rights and is recognized in the Spanish Constitution (CI). As noted by the Decision of the Constitutional Court in many decisions, "(...) there has been a differentiation of the dominant institution into different, differently meaningful and significant legal figures or situations", resulting in different types of property with different legal statuses, depending on the objects on which each property right falls (STC 37/1987, FJ 2).

In addition, Constitutional Court Decision 7/2023 of February 21 reaffirms, referring to its previous doctrine, that''The constitutional norm referred to, Article 33, "recognizes the right to private property, which is indeed constituted and protected as a set of individual rights over things, but also, at the same time, as a set of duties established in accordance with the laws, taking into account the values or interests of society, that is, the public purpose or benefit to be fulfilled by each category of legal property objects.

It is only with this constitutional approach in mind that it is possible to understand the meaning that must now be given to the set of rights and objects that make up the institution of intellectual property, taking into account also the constitutional nature of the 'right to literary, artistic, scientific and technical creativity''' 'culture' and 'cultural creation', the Constitutional Court stated that 'the constitutional enshrinement of the right to literary creation endows it with an autonomous content which, without excluding it, exceeds freedom of expression' and therefore 'its inclusion in the Constitution gives it the status of an autonomous right, its own field of protection' and 'protects it from any unlawful interference by public authorities or private persons' (STC 51/2008 of May 14 and STC 34/2010 of July 19).

The protection of cultural creativity on the basis of Article 20 1 b) of the CI as an 'autonomous right' - which therefore goes beyond the subcategory of 'concretization of general freedom of expression' (STC 153/1985 and STC 81/2020) - is a way of ensuring the inviolability of cultural creativity and the rights''intellectual property "from unlawful interference by public authorities or private persons".

It should also be used to involve public authorities in its promotion and dissemination, and to create an environment of respect (link to public authorities, who should be the first to respect intellectual property in all its manifestations) as well as sympathy (link to private persons) for intellectual property and its safeguards, which should be regarded as a fundamental right in a developed democratic society.