Defining the object of protection of every branch of Law is necessary to define what it falls on, and therefore its scope. Copyright has as its object the work or creation resulting from the human intellect, which must be expressed in a perceptible expression or form and must be original.
In a general sense, creations or works will be protected by Copyright if they are manifested in a specific way, since ideas are not susceptible to being protected by this branch of Law, in fact several people may have a similar or identical idea and only that idea that is externalized in a concrete, palpable work that can be reproduced, disseminated and represented, will be protected by Copyright.
The works, in addition to being formally expressed, must be original, understanding this originality, for the purposes of Copyright, as the manifestation of the imprint and formal individuality of the author in a creation.
Sometimes it has happened that the same idea is expressed by several artists in concrete works; and yet the result is dissimilar in all cases, since each author at the time of creation prints his personal stamp. This requirement of originality does not mean that the work must be novel to be protected, but simply have this individuality that emanates from the creator.
On the other hand, the protection granted by Copyright to these formal and individualized creations is not governed by their value, destination or form of expression, and in most laws this protection is not subject to compliance. of any formality, being born with the act of creation and not by the recognition of the Administration. Copyright, then, is intended to protect all kinds of intellectual works, which meet the general requirements, which we previously exposed, which according to their form of expression and characteristics have been classified as works: literary, musical, theatrical or dramatic., artistic, scientific, audiovisual, and other less traditional that technological development has fostered, among which we can mention software,databases and multimedia works. Likewise, the protection extends to works that, although they are original, are created from other pre-existing works, and which are called derivative works, among which are translations, adaptations, compilations, etc.
In most of the regulations that regulate Copyright, the types of works are mentioned by way of example, a list that is not subject to numerus clausus, which allows those types of works that arise with human and technological development, and that meet the aforementioned requirements, can be included in the regulatory framework of this branch of law, without any need to modify the legislation, in terms of the object, and that the protection is timely and effective.
The Berne Convention for the protection of Literary and Scientific works does not establish a definition of a work, but in its Article 2.1 it makes an enunciative mention of the different types of work that are the object of copyright protection.
From the set of works protected by Copyright, we will make an analysis of artistic works, among which are, painting, drawing, engraving, sculpture, photography and architecture. The works classified as artistic create an aesthetic impact on those who contemplate them, and since sight is the most important human sense to appreciate them, they can be called visual works. This type of works are protected regardless of the materials and techniques that are applied in their elaboration. Likewise, the sketches and essays, which on many occasions the artists create prior to the elaboration of the work, are protected by Copyright.
In the elaboration of this type of work, the artist expresses himself through lines, colors, shapes, and various materials that he combines to achieve a result, so the personal execution of the creator is decisive to achieve the expected result; what does not happen with other types of works.
It is important to note that for the purposes of Copyright, and for a better understanding of the object of protection, there is a difference between the work and the support where it is incorporated to manifest itself, a distinction that in some types of work is feasible to determine, This is not the case with artistic works, where painting, drawing, sculpture are the work, while canvas, wood, and paper are the physical support where they need to be incorporated; We then speak of the corpus mechanicum, which is the material support in which the work is expressed, say the painting, the carving, and the corpus mysticum, which are the strokes, lines, images that the artist paints and which is the intellectual and immaterial work created..
This differentiation between the corpus mysticum and the corpus mechanicum is very important, since the rights that could be generated are different and consequently, their legal treatment would also be different, since the owner of the support of an artistic work, even if it is a unique copy As in many cases, it holds property rights, but does not necessarily own the copyright on this work; Therefore, the acquisition of a work classified as artistic works does not imply the acquisition of the ownership of the copyright on it.
The sale of this type of work does not imply the assignment or transfer of economic rights, which is why for any reproduction, application in another medium, or public communication of the works, except for any contractual stipulation, the authorization of the author, or owner derived from Copyright, as appropriate.
Although the author of this type of works sells the physical support, or assigns his copyright, it does not mean that moral rights disappear, since these are inalienable and imprescriptible, and can be exercised as long as the right of paternity and integrity is violated. of the work.
Painting, drawing, sculpture, engraving, are the works recognized as traditional artistic works, which have an older emergence in the history of human development, but with technological development, photography arises that is also included in this type of works, and that doctrinally valued in two edges, those photographs that by the shape of the frame, the use of light, or another element have originality, and are protected by Copyright; and those that do not imply this degree of originality to be considered works protected by Copyright, and that have been cataloged in different regulations, as mere photographs or simple photographs, regulating the different regimes that will be applied in the protection of this type of works photographic.
In addition to these types of artistic works mentioned, we want to analyze the works of graphic design, which with industrial development and the market economy, achieved an important role regarding the advertising and promotion of products and services. As many believe, design is not art, and therefore analogies with artistic works should not be sought, since the essential thing is that art asks questions and design solves problems; However, I consider that what is essential for the purposes of Copyright, is that as long as this design is original and is expressed formally and concretely, it can be protected by this branch of Law.
The creators of artistic works have moral and patrimonial rights over their work. Moral rights are inalienable, inalienable, unattachable, inexpropriable and imprescriptible; and they are made up of different faculties of different content, so in the doctrine they have been divided into positive and negative faculties. The positive ones, so called because they imply an initiative of the author, are made up of the right of disclosure and the right of withdrawal or repentance. The second are classified as negative because they prevent others from violating moral rights, and are the right to recognition of the paternity of the work and the right to its integrity. The author can decide to disclose his work or keep it private,although in most cases the creators of artistic works choose to exhibit them or communicate them to the public through exhibitions, or another form of public communication; This does not mean that there are works that they want to keep without exhibiting to the public, and only he can decide what to do with his work.
This disclosure is important, because despite the fact that the author's patrimonial rights are born with the creation, it is no less true that from the disclosure of the work it is that these can be manifested, it is not possible to exercise a patrimonial right of public communication otherwise the work is disclosed. Regarding the right of recognition of the paternity of an author of artistic works, it must also be respected, and it is important to clarify that although usually authors in plastic works for example illustrate their signature in a personal way, if it may be the case that photographs are taken of this type of works or the image is reproduced in another format of any artistic work and the author who created it is not mentioned. Regarding the right to respect for the integrity of the work, its impact on artistic works must also be valued,because sometimes segments of plastic, photographic or other works included in this group of works are used, mutilating or modifying the work without authorization of the authors and in many cases affecting their legitimate interests.
At present, a cultural industry has been developed dedicated to applying in utilitarian supports, plastic, sculptural and photographic works, which allows low-income people to acquire umbrellas, tableware, home decorations, among other products with applications of a copy of these works of art.
For these uses in new media, the express authorization of the authors and copyright holders is required, who are the only ones authorized to approve a modification of the size of the works, any change in color tones or the modifications that these new ones impose. supports and formats, and it is important to make it clear that the owner of the painting, the size, the engraving or other, in many cases is not the owner of the copyright and as a consequence is not authorized to grant the above mentioned authorizations.
Regarding economic rights, we must state that they are independent of each other, which means that if an author transmits his right to public communication about a work, this does not imply that he is authorizing its reproduction or distribution. Each transfer must be expressly authorized and must specify what economic right it covers. The economic rights are not subject to numerus clausus, they can be as many as ways of use the work has. However, in doctrine and legislation, they are grouped according to the different forms of exercise of these, namely: the right of reproduction, distribution, public communication of transformation.
Closely related to the artistic works that are the object of analysis of this work, we find the right of participation or droit de suite, which is the right of the authors of this type of works to receive a part of the price of the successive sales of the originals of these works that are carried out in public auction or with the intervention of a merchant or commercial agent.
A final aspect that we wish to assess related to artistic works is the responsibility of the centers and institutions that carry out permanent and transitory exhibition activities that promote public communication of this type of works, since they must guard the works and ensure that they are not mutilated, stolen or damaged, because on many occasions these specimens on display are unique specimens, and any of these actions would affect the moral rights of the author in the first instance and the property rights.
Respecting and safeguarding copyright, encourages greater artistic creation and that humanity can count on marvelous works that illuminate our soul.
