DERECHO MORAL DE AUTOR VERSUS PROPIEDAD INMOBILIARIA: REFLEXIONES A PROPÓSITO DE LA FUNDAMENTACIÓN JURÍDICA DEL RECURSO DE CASACIÓN RESUELTO POR LA STS DE 6 DE NOVIEMBRE DE 2006.

Abstract

A copyright to an author's work, which comprises a moral facet and a proprietary facet, is independent of and compatible with a property or other right in the object in which the intellectual creation is incorporated. This maxim, which is consecrated by article 3.1 of the Revised Intellectual Property Act of 1996, may present some peculiarities when the author endeavours to exercise the unwaivable moral aspect in connection with a work installed in immovable property. In the case decided on by the Supreme Court in its ruling of 6/11/2006, the Court, confirming the ruling by the Provincial Appellate Court of A Coruña of 8/2/1999, deemed that the attendant circumstances prevented the suit from prospering. In the suit, on the grounds of the moral right stated in article 14.4 of the aforesaid Revised Act, the authors asked for damages as a consequence of the disappearance of murals designed and painted by them. The appellants gave as their causa petendi the municipal licence granted for the refurbishing the façade bearing the murals, the actual refurbishment of same and, in short, the failure by the building's seller to give notice of the transfer of the property, which, they said, prevented the moral right from being exercised in a timely manner. In the lawsuit it was demonstrated that the deterioration of the murals had indeed been considerably influenced by the passage of time and inclement weather (the action of uncontrolled persons also being pointed at as a possible cause), as well as the need to proceed to the refurbishment of the façade to which the murals were affixed for architectural reasons that advised a treatment that covered up the paintings. Under such circumstances, the moral right of the authors conflicting with the right of the building's owner to restore the building, it is blindingly clear that the right of the latter must be made to prevail, even when that entails the complete disappearance of the intellectual creation.