The Intellectual Property Act (hereinafter LPI 1996) states that the ownership of the work corresponds to the author, that is to say, to its “creator”.  Therefore, the architect-designer acquires the intellectual property rights by the fact of being the author of the work that later takes shape in a building. However, intellectual property does not necessarily cover all the elements of a building, but only those elements that are creative and original and reflect the personality of the author.  Thus, for example, in a building intended for housing, the property of the author does not extend to the inner side of the house because, in general terms, house will have the elements required by its functionality.

The architectural work (corpus mysticum) therefore belongs to the author, while the building on which the work has been projected (corpus mechanicum) belongs to the person or persons for whom the building has been build and, where appropriate, to the successive purchasers.  Those are two properties with their respective objects and transferring regime. “The acquirer of the property of the medium to which the work has been incorporated shall not, by this title alone, have any right of exploitation over the work” (Article 56.1 LPI 1996).

Intellectual property grants the author, firstly, a set of moral rights as an instrument of protection of the author’s relationship with his work. These are non-transferable rights (in the event of death, the person designated by the author is entitled to perform them) and are therefore extremely personal. In accordance with the provisions of Article 14 LPI 1996, this category includes, inter alia, the right to decide when and how to disclose his work (normally by handing over the project to the builder); the right to decide whether the work should be identified by his name, pseudonym, sign or anonymously; the right to be recognised as an author; the right to demand respect for the integrity of the work and to prevent any distortion, modification, alteration or attack on the work that might prejudice his legitimate interests or damage his reputation. Within the limited judicial experience (undoubtedly because there are not many projects and buildings that are the consequence of a true architectural creation), it is worth highlighting the lawsuit between Santiago Calatrava and the Bilbao City Council that built a footbridge to connect the “Zubi Zuri” bridge with the adjacent promenade, the City Council being condemned to compensate the architect for having infringed the right to the integrity of the work (Decision of the Provincial Court of Vizcaya of 10 March 2009).

On the other hand, intellectual property grants the author the exploitation rights. According to Article 17 LPI 1996 “the author is entitled to the exclusive exercise of the rights of exploitation of his work in any form, and in particular the rights of reproduction, distribution, communication to the public and transformation, which may not be carried out without his consent”. These are economic rights that belong to the author, but those can be transferred either by inter vivos act or mortis causa. The question that is often at stake is whether the architect when handing over the project to the promoter or the builder, does it also imply the transfer of the economic rights of the architect-author? The answer must be not, because the purpose of the handover is the construction of a building and not the transfer of intellectual property rights. The interpretation of the contract of assignment to the architect-designer for the drafting of the project cannot be considered, by itself, to include intellectual property rights. According to article 1283 of the Spanish Civil Code, “Whatever the generality of the terms of a contract, it shall not be construed as covering anything different or as covering cases other than those in which the parties intended to contract”.

The variations of the author’s economic rights are independent of each other, that is to say, those can be transmitted independently. Public communication is any act by which a plurality of people may have access to the work without prior distribution of copies to each of them (Article 20 LPI 1996). In the case of architectural works, disclosure is, in itself, public communication.

The right to reproduce the work is significantly restricted by the fact that the building is located on a public street. Indeed, article 35.2 LPI 1996 establishes that “works permanently located in parks, streets, squares or other public thoroughfares may be freely reproduced, distributed and communicated by means of paintings, drawings, photographs and audiovisual procedures”.  This is a limitation to the author’s rights in favour of the general public, known as “freedom of panorama”. This freedom cannot be prevented by the holder of the intellectual property rights and can be freely reproduced by means of photographs and audiovisual processes. But this right of panorama has a nuance to prevent abuses. Article 40 bis LPI 1996 provides that the above-mentioned rights may not be interpreted in such a way as to allow their use in a manner which unreasonably goes against the legitimate interests of the author or which prejudices the normal exploitation of the works to which they refer.  The judgment of the Provincial Court of Gipuzkoa of 11 December 2012 dismissed the claims of the owners of a house against the architects on the grounds that the latter had published on their website a series of photographs of the house owned by the plaintiffs, the latter claiming, among other reasons, that they had exceeded the rights recognised in the Intellectual Property Law. Among the Court’s reasoning is the fact that the house is located on a public street, which implies public exposure, from which the architects themselves, authors of the project, can benefit, because in the case of buildings on public streets, public exposure is not a right of the owner, since the construction of the building is in itself, public exposure of the work.


Cristina Hernández-Martí Pérez