Spain - The Spanish Copyright Act Reform Enters into Effect
On 1 January 2015, the Act 21/2014, dated 4 November amending the Copyright Act, passed by Royal Legislative Decree 1/1996, dated 12 April and the Civil Procedure Act 1/2000, dated 7 January ("IPA Reform ") entered into effect. The main amendments resulting from the IPA Reform are aimed at:
1. Restricting the maximum number of private copies and reducing the number of cases that give rise to the owner being entitled to fair compensation. In particular, the following cases are excluded from the private copy limit and therefore do not give rise to compensation: (i) copies of works for professional or commercial use. This amendment incorporates the criteria held by the European Court of Justice in Judgment C-467/08, dated 21 October 2010 (Padawan Case); (ii) copies of works from physical mediums that are not owned by the user; (iii) copies of works made available to the general public enabling people to access them whenever they wish; and (iv) copies made with the professional or commercial assistance of others. In addition, the IPA Reform expressly states that copies made of those acquired unlawfully or files unlawfully downloaded from the Internet are not protected by private copy restrictions.
2. Adapting the quote, review or illustration limits to educational and scientific research objectives: (i) the quote and review limits have been adapted to Internet content aggregators, acknowledging the right of publishing companies and authors of news to receive fair monetary compensation for the exploitation of their content on the Internet, without demanding prior authorization. Nevertheless, the use of images, photographic works or mere photographs is excluded, given that they always require prior authorization; (ii) the exception relating to illustrations for educational and scientific research purposes has been extended to adapt to new forms of teaching and distance learning (exchange of files and documents on education intranets).
3. Guaranteeing greater surveillance and transparency in relation to the functioning, management and control of Spanish collecting societies. In particular, the following controls have been introduced: (i) new regulations on the relations between collecting societies and their members; (ii) accounting and auditing obligations; (iii) functioning obligations, calculation of rates and creation of a single window; and (iv) inspection, surveillance and control powers granted to the Ministry of Culture.
4. Increasing the powers and functions of the Intellectual Property Commission ("IPC"), in particular: improvements in efficiency of legal mechanisms designed to protect intellectual property rights against digital environment breaches thereof by information society service providers ("ISSPs"). In particular, the IPA Reform provides for the possibility of filing an administrative claim with Section 2 of the CPI against websites that simply organise, index and classify content subject to intellectual property rights, without the express authorisation of the owner, irrespective of whether or not those responsible for such websites have uploaded the content themselves or it has been provided by third-party users.
5. Extending the term of rights protection granted to artists, performers and phonogram producers from 50 to 70 years (as of the recording or first publication of the phonogram), according to the provisions of Directive 2011/77/EU. In addition, artist rights have been reinforced by a series of unwaivable rights relating to (i) the determining of rights assignment agreements, and (ii) the receipt of certain remuneration; which may be exercised after 50 years since the lawful publication or communication to the general public of the phonogram.
6. Establishing new civil law methods to identify digital environment breaches of intellectual property rights: Any person filing a civil action for breach of intellectual property rights will be entitled to request preliminary measures obliging other ISSPs, electronic payment service and advertising providers to identify the alleged breaching ISSP. Such person will also be entitled to request certain ISSPs to provide the necessary information to identify users with which they hold or have held service providing relations during the preceding twelve (12) months, depending on the volume of the works and services made available without authorisation, when there is reasonable evidence that they are directly or indirectly making available or publishing works or services subject to protection without authorization, provided they are not non-profit making end consumers.
The effects of the amendments introduced have already been felt across Spain, with the shut-down of news content aggregators in Spain and numerous other websites linked to online streaming and P2P services. Additional developments are expected throughout 2015 given the two questions referred to the Court of Justice of the European Union (CJEU) by the Spanish Supreme Court regarding whether or not the private copying levies system which is now paid from the State budget is compliant with Article 5(2)(b) of the Infosoc Directive 2001/29/EC and the fact that the IPA Reform also sets a one year deadline for the Government to carry out the preliminary work necessary to initiate a comprehensive overhaul of the Spanish Copyright Act in order to assess the regime applicable to copyright collective management, the rules for fair compensation for private copying and the competencies and nature of Spanish regulators.
For more information, please contact Jose Maria Mendez, Ana Alpera or Michael Fonseca.