Ownership of Works Created in the Workplace: The Framework of Article 51 of the Consolidated Text of the Intellectual Property Law (TRLPI)
When an employee creates a work protected by intellectual property rights in the course of their duties, the question of who owns that creation does not have an automatic answer. Article 51 of the Consolidated Text of the Intellectual Property Law (TRLPI) provides that the exploitation rights to works created by a salaried employee in the course of their duties or following the employer’s instructions are transferred to the employer, unless otherwise agreed. This transfer takes place automatically and is presumed to be assigned exclusively to the employer to the extent necessary for the employer to carry out its normal business activities at the time the work is handed over.
For this regime to apply, three essential elements must be present: the existence of a current employment relationship; that the work was created in the course of the duties entrusted to the employee or in accordance with the employer’s instructions; and that there is no express agreement to the contrary. Case law has applied this framework with remarkable consistency. The Madrid High Court of Appeal, in its judgement of 2 October 2020, ruled on a dispute in which an employee claimed exploitation rights over photographs taken over a period of more than ten years within the context of their employment relationship, concluding that, in accordance with Article 51(2) of the Consolidated Text of the Intellectual Property Act (TRLPI), the rights were presumed to have been exclusively assigned to the employer as there was no written agreement to the contrary nor any evidence that the photographs had been taken outside the scope of their duties.
The absence of express contractual provisions is, in practice, the main source of disputes. Companies that do not include specific intellectual property clauses in their employment contracts expose themselves to litigation whose outcome, whilst generally favourable to the employer by virtue of the legal presumption, entails entirely avoidable procedural and administrative costs. Proactive advice from the Commercial Law Department at Belzuz Abogados enables the drafting of contracts that eliminate this uncertainty from the outset of the employment relationship.
Computer Programs and Computer-Generated Works: The Specific Regime under Article 97.4 of the TRLPI
The legislator has established a stricter regime for computer programs created by salaried employees. Article 97.4 of the TRLPI provides that, where a programme is created by an employee in the course of the duties entrusted to them or in accordance with their employer’s instructions, ownership of the exploitation rights lies exclusively with the employer. Unlike the general regime, the attribution to the employer applies more strictly here, given the strategic and economic nature of software in today’s business environment.
Case law has been particularly clear in this area. The Zaragoza High Court of Appeal, in its judgment of 21 May 2020, attributed ownership of various computer applications to the Aragon Health Service in response to a claim by an employee who had developed them during his working hours, emphasising a criterion of great practical relevance: registration in the Intellectual Property Register in the employee’s name constitutes merely a rebuttable presumption, which can be overcome by evidence of the employment context in which the work was created. In the same vein, Bilbao Commercial Court No. 2, in a judgement of 1 September 2022, confirmed that the development of software within the employment context, in the absence of any agreement to the contrary, confers ownership on the company, and that the subsequent transfer of the programme to a third party is lawful.
The scope of this regime was defined by the Supreme Court in a judgement of 21 June 2007, which held that if the software is developed on the employee’s own initiative, using their own resources and without a specific commission or instructions from the employer, ownership lies with the employee, with the company being granted only a right of use. This ruling precisely defines the scope of application of Article 97.4 of the TRLPI and warns against a broad interpretation of the employer’s ownership.
The Moral Rights of the Author-Employee: Insurmountable Limits to Assignment
An issue frequently underestimated in business practice is that the assignment of exploitation rights to the employer does not, under any circumstances, affect the author’s moral rights. The TRLPI recognises that the creator has a set of inalienable and non-waivable moral rights, notably the right to recognition of authorship and the right to the integrity of the work. No employment contract may deprive the employee-author of these rights.
The Madrid High Court of Appeal ruling of 28 September 2018 made this crystal clear in a dispute between an audiovisual production company and the director and screenwriter of a documentary: although the employee had contractually assigned all economic rights, they retained their status as author in full, along with their moral rights, including the right to remuneration for public communication, which the court characterised as independent and non-transferable. This approach has recently been endorsed by the Supreme Court in a judgement of 30 September 2025, which recognised the co-authorship of a female employee in pictorial works created within the context of an employment relationship, declaring that the employment relationship cannot serve as a basis for denying recognition of the moral rights of the employee-author. This is a ruling of considerable significance, as it comes from the High Court and directly addresses the tension between the employment relationship and intellectual property rights.
Express Contractual Assignment and Effects Following the Termination of the Contract
Nothing prevents an employer and an employee from regulating the regime governing intellectual property rights more precisely by contract. The Supreme Court of Justice of Andalusia (Seville) (Labour Division) ruling of 23 October 2025 confirmed the full validity of an express assignment of rights in relation to choreographies during the agreed term, but absolved the employee of liability for damages arising from the cancellation of performances following the termination of the contract, on the grounds that such cancellation was due to organisational reasons unrelated to any breach by the employee. This ruling highlights that an express contractual assignment is valid and binding, but its effects are limited to the agreed period, and the termination of the contract may have direct consequences for exploitation rights if their continuation has not been expressly provided for.
Artificial Intelligence and Authorship in the Workplace: A Challenge Without a Definitive Legal Answer
The widespread use of generative artificial intelligence tools in work processes raises questions that the current TRLPI does not expressly resolve. Spanish law requires that a work be an expression of the author’s personality through free and creative decisions. If the human contribution is limited to entering instructions into an AI tool and reproducing the result without any significant creative intervention, the resulting work is unlikely to meet the threshold of originality required by the law and by the case law of the Court of Justice of the European Union.
The reality of the labour market is already feeling this impact. The Supreme Court of Justice of Castile and León (Valladolid) (Labour Division) judgement of 15 September 2025 upheld the validity of a dismissal on objective grounds at a translation company whose losses were directly attributed to competition from machine translation and artificial intelligence technologies, anticipating the need for specific regulation which the Spanish and European legislators have not yet addressed in sufficient detail. In this context, prudence dictates that companies should expressly regulate, in their contracts and internal policies, the use of AI tools, the ownership of the outputs generated, and the level of human creative input required to ensure the intellectual property protection of the results.
Conclusion
The provisions of Articles 51 and 97.4 of the TRLPI offer a solid legal framework for resolving the most common disputes regarding ownership and the assignment of rights in the workplace; however, the emergence of artificial intelligence and the growing economic significance of intellectual assets demand proactive legal attention and precise contractual regulation. Recent case law from the Supreme Court confirms that the courts protect both the employer’s rights over works created in the workplace and the inalienable moral rights of the employee-author, which obliges companies and professionals to address this matter with the rigour it deserves.
The Commercial Law Department at Belzuz Abogados, S.L.P. is at your disposal to provide the specialist advice that each situation requires.