It’s not common to find an author or publisher who waives their rights to their work. Some intellectual property rights are inalienable, while others can be waived. In this article, we’ll see which ones they are and what happens to works whose authors have decided to waive them.

There are two types of copyright in a creative work: moral rights and economic rights. According to the Intellectual Property Law, moral rights are inalienable and cannot be waived, but what about economic rights? The rights holder can waive them and, therefore, waive the right to take any action that would prevent the exploitation of their work by third parties.

Moral rights are permanent.

Article 14 of the Intellectual Property Law details the moral rights that a rights holder cannot waive, which are the following:

• The right to decide whether and how their work should be published.
• Determine whether such disclosure should be made under their own name, a pseudonym, or anonymously.
• Demand recognition as the author of the work.
• Demand respect for the integrity of the work and prevent any distortion, modification, or alteration that would prejudice their legitimate interests or damage their reputation.
• Modify the work while respecting the rights acquired by third parties.
• Withdraw the work from the market due to a change in their intellectual or moral convictions, after compensating the holders of exploitation rights for any damages.
• Access the unique or rare copy of the work, when it is in the possession of another, in order to exercise the right of disclosure or any other corresponding right.

These copyrights cannot be assigned and will always remain with the holder and even their heirs until, generally, 70 years have passed since their death. After that time, the work will enter the public domain and may be reproduced without the need to request authorization, provided that the integrity of the work and the attribution of authorship are respected.

Waiver of Economic Rights

Economic rights are those that allow the owner to receive economic benefit from the use of their work, that is, from its exploitation, reproduction, distribution, public communication, and transformation. For this, authorization from the rights holder must be requested, and, unlike moral rights, these can be assigned or waived. This implies waiving the right to take any action that prevents the use of the work and to receive economic remuneration.

The fact that the owner of the work has waived economic rights does not necessarily mean that the work automatically enters the public domain, since, according to Article 41 of the Intellectual Property Law, a work will only enter the public domain upon the expiration of exploitation rights (when the established time period has elapsed).

Assignment and Waiver Are Not the Same Thing

Whenever an original work is to be reproduced, it is advisable to consult its specific situation, as it may be the case that a rights holder has assigned the work to a third party, who will then have to authorize its use.

Waiving exploitation rights is not the same as assigning them. In the first case, the rights holder themselves grants authorization to third parties; in the second, the economic rights are assigned to a third party (publisher, agent, etc.), and it is this third party from whom authorization to reproduce the work must be requested.

The main problem is that there is no specific registry to determine if a waiver has been made for a particular work.