Protecting Your IP When Hiring in Spain

When you employ someone in a different country, you cannot assume your home-country IP terms carry across. Spain has its own rules on who owns inventions, software and creative works made by employees, and its own limits on clauses like non-compete. Rely on assumptions and you can end up with a gap between what you think you own and what you actually do.

The good news is that the Spanish defaults are largely sensible for employers. The work is in translating them into clear contract terms, which is exactly where a compliant Spanish employment contract earns its place.

Spain’s Patent Act sorts employee inventions into three broad categories. If an invention is made as part of research or inventive duties the employee was hired and paid to perform, it belongs to the employer. If it has nothing to do with the job and did not draw on company resources, it belongs to the employee. In between sits a category where the employee’s work substantially used the company’s means or knowledge; the employer can claim these, usually with fair compensation to the employee.

For most technical hires the first category covers the important cases, but the distinctions matter, and a clear IP assignment clause in the contract removes the ambiguity about which bucket a given piece of work falls into.

Software gets special treatment under Spanish intellectual property law. Where an employee writes software in the course of their duties, the economic rights are presumed to pass to the employer unless the parties agree otherwise. That default is helpful, but presumptions can be argued, so confirming ownership expressly in the contract is the sensible course.

Other copyright works, such as designs, written materials and marketing content, are best handled with an explicit assignment of economic rights in the contract, since the general copyright rules are less automatically employer-favouring than the software provision.

Spain has a dedicated Trade Secrets Act, Ley 1/2019, which protects confidential business information that has commercial value and is kept secret through reasonable measures. Employees owe a duty of good faith and confidentiality during and after employment, and the law gives you remedies if a trade secret is misused.

To rely on it, you need to actually treat the information as secret: a clear confidentiality clause in the contract, plus practical controls such as limiting who can access sensitive data and systems. Protection follows the effort you put into keeping something confidential.

A post-contractual non-compete, the pacto de no competencia, can be valid in Spain, but only within strict limits. It cannot last more than two years for qualified technicians, or six months for other employees. The employer must have a genuine commercial or industrial interest to protect, and, crucially, the employee must receive adequate financial compensation for agreeing to it.

That compensation requirement is the one companies from other countries most often miss. A non-compete with no real payment behind it is generally unenforceable in Spain, so it needs to be designed properly or it protects nothing.

All of this comes together in the employment contract. A well-drafted Spanish contract for a role that touches valuable IP should cover the assignment of inventions and IP, ownership of software and other works, a confidentiality clause aligned with the Trade Secrets Act, and, where justified, a properly compensated non-compete.

• Assignment of inventions and intellectual property to the company.
• Express ownership of software and copyright works created in the role.
• A confidentiality clause backed by practical access controls.
• A non-compete only where justified, and with the required compensation.

Building these terms into a compliant contract, correctly for Spanish law, is part of what an EOR service in Spain handles, so your IP is protected from the first day of employment.