A recent court ruling that designates musician Paco de Lucia as the exclusive author of 37 of his musical works has reopened the debate on copyright issues.
The judgment of the Commercial Court No. 3 in Madrid required the descendants of Jose Torregrosa to return 100% of the income received as copyright royalties for 37 iconic songs, such as 'Entre dos aguas,' which are now solely attributed to the flamenco maestro.
Intellectual property expert lawyer Marisa Castelo was directly involved in this matter, representing the interests of Paco de Lucia's family until she was appointed president of the Instituto Autor, which is dependent on the SGAE (General Society of Authors and Editors). Due to the dispute being between two partners of this management entity, she had to withdraw from the case.
Through this organization, in collaboration with WIPO, this legal expert has launched MEDIAUTOR, a specialized mediation court focused on intellectual property matters.
"The advantage of resorting to mediation is that the proceedings are more agile and completely confidential, which reduces the reputational cost for the losing party. These matters are handled by professional mediators who seek an agreement between the parties outside of the judicial process."
Interview conducted by @Luisjasanchez, legal journalist
What can you tell us about the conflict between Paco de Lucia's family and the descendants of José Torregrosa regarding the authorship of 37 of his musical works?
It is true that this is a very old issue. Although his daughter, who is also a lawyer, initiated the claim during the Maestro's lifetime following his instructions, the proceedings were interrupted by the unfortunate events we are aware of, and it has lasted for many years.
The lawsuit and evidence were prepared by two lawyers, but when I was appointed President of the Instituto Autor, which is part of the SGAE, I had to withdraw since it is objectively a dispute between two partners of the SGAE.
What is the problem with copyright in artistic works?
First of all, I would like to mention that in my thirty years of professional experience in this sector, these types of issues are not as common as they seem to be now.
The case of Paco de Lucia is particularly glaring and painful, and it stems from malpractice or corruption, fortunately from past times, although that does not mean they should not be corrected and eradicated.
That being said, it should be emphasized that, in general abstract terms, the issue has two perspectives: either someone illicitly becomes a co-author of a work when they are not, or a co-author exceeds the allocation of shares or ownership rights regarding the works that they genuinely deserve. This always translates into receiving amounts that do not belong to them and causing moral damage, especially if they are not even co-authors.
What methods are there to prove the authorship of a work?
It is very difficult to prove that someone who has been excluded is the author, as well as to demonstrate that someone who has surreptitiously inserted themselves in a distribution list is not the author.
Musical and testimonial expert evidence are essential. In the case of flamenco, due to its special characteristics, it may have slightly less difficulty, but imagine in the case of a typical pop song, with both music and lyrics, how can it be determined that someone, for example, did not contribute to writing the lyrics?
It is tremendously difficult, if not impossible unless there is clear evidence to the contrary.
I must add that until now, we have discussed musical works where there are usually not many co-authors, but in other works, such as audiovisual works, directors, screenwriters, original soundtrack authors, and authors of pre-existing music coexist.
The complexity is terrible. Nowadays, for example, in the distribution of the literary part.
"Expert evidence and testimonial evidence are fundamental in demonstrating the authorship of an artistic work".
In this specific case of Paco de Lucia's works, where was the problem?
I prefer to speak in more general terms. The most serious problem usually arises when someone, through illicit or highly questionable means, proceeds to register a work, attributing authors and percentages that they deem appropriate, which are incorrect or not agreed upon, or simply when they are not even the author.
Obviously, if someone directly claims authorship of a work that is not theirs, we would be dealing with plagiarism. Both scenarios are of such gravity that in certain cases they can be considered criminal offenses.
Nearly twelve years of legal battle—what are the lasting effects of such a dispute between the parties?
Unfortunately, it is not uncommon for a lawsuit in Spain to last 12 years, and the repercussions are devastating. The lawsuit itself may lose its purpose due to factors such as death, disappearance, or bankruptcy. The human and financial toll of living with an unresolved matter is significant.
I am aware that authors suffer a great deal psychologically in these matters when they believe someone has claimed their work or part of it.
A slow justice system is not justice, but curiously, it is not a priority for Spaniards, and it never has been... until they personally experience it.
Mediation as an alternative to the judicial process
You have launched MEDIAUTOR, a specialized mediation court, in collaboration with WIPO. How would it have functioned in this case?
Mediation depends on the willingness of the parties to reach an agreement, first and foremost. For example, if someone claims plagiarism against another person who is unable to admit even copying a single line, we are off to a bad start. Spain is not a country of consensus but litigation. That is an error with serious consequences, and that culture needs to be changed.
In this case, if both parties had the willingness, the first thing to be eliminated would have been the reputational harm suffered by the losing party in a lawsuit, as mediation is strictly confidential, and a breach of that confidentiality has consequences.
Secondly, they would have been accompanied by a highly qualified mediator knowledgeable about the issues involved in the claim, who would have known how to bridge the gaps and address all the disputed aspects, of which there are many.
What role does MEDIAUTOR intend to play in these artistic sectors in which it is involved?
MEDIAUTOR is a pioneering project by WIPO at a global level, proposed and promoted by the Instituto Autor, and it aims to be the reference center for resolving copyright and image rights disputes not only in Spain but internationally, as WIPO has mediators of all nationalities and in all countries.
We genuinely want to serve society by helping to solve problems with highly specialized expertise and affordable prices since both WIPO (United Nations) and the Instituto Autor have no profit motive whatsoever. I believe that the mediators who apply for membership are also not driven by economic gain, as can be seen from their fees in the majority of cases.
This generosity from my colleagues is something that personally, as a lawyer, moves and greatly appreciates me.
'MEDIAUTOR aims, with the support of WIPO, to become a reference in resolving copyright and image rights conflicts.'
How long would it have taken to resolve this matter through mediation?
This specific case is not a good example given its extraordinary complexity. A less complicated case should not take more than two or three months to reach an agreement.
Who would choose the mediators to resolve this matter?
We have preferred that the acceptance procedure for mediators and their proposal to the parties be handled directly from our partner's headquarters, WIPO, in Geneva, to provide greater objectivity to the process.
MEDIAUTOR sends each party a list of at least three potential mediators for their case, along with their titles and qualifications. Each party can eliminate the name(s) they object to and rank the remaining ones in order of preference. Based on this, MEDIAUTOR (OMPI) makes the final appointment.
How is the agreement between the parties ratified to make it effective?
The agreement between the parties is a private contract. No external third party (judge, arbitrator) imposes anything that the parties do not wish to sign. Whatever is finally signed voluntarily has the same validity and enforceability as any contract.
Can mediation be sought when the judicial process is already underway?
Not only that, but mediation can also be sought to execute a court decision. For example, in the enforcement of a judgment in a copyright authorship case, which involves complexities in terms of monetary settlement, retroactivity, etc., mediation can be ideal.
Currently, the Procedural Efficiency Law is being approved, which will make mediation and other alternative methods (MASC) mandatory before resorting to the judicial process. How do you assess this issue?
It is something necessary and extremely important, but it will only work if people genuinely seek to solve something and not merely consider it a legal requirement before going to court.
We need to change our legal culture, which always reminds me of Goya's "Duel with Cudgels": we forget that the one who remains standing will not be in much better condition than the defeated. They haven't truly won; they simply remain standing.