Pending final approval by the Congress, on October 15 the Senate gave green light to the reform of the Spanish Intellectual Property law. The reform has been considered as a short-term solution previous to the final one which is supposed to come approximately within a year, following the recent adoption of Directive 2014/26/EU on collective management of copyright and related rights. Although there are some voices arguing that this urgent and incomplete reform is not but a stopgap solution to the current law, the Government states that there are several problems which cannot longer wait for the adoption of a new comprehensive law on intellectual property.
In this sense, the development and application of new technologies have had an extraordinary impact on intellectual property rights, which has led to the need for effective tools in order to enhance protection of these rights. However, the adoption of these measures should be without prejudice of the development of the Internet, essentially based on the freedom of users to provide contents.
The new measures adopted by the Government can be grouped into three main categories, namely: (i) a broad review of the copyright levy system, (ii) the design of effective supervision mechanisms on Spanish collecting societies and (iii) the strengthening of response instruments against rights violations which boosts the legal supply in the digital environment.
Copyright levy system
The reform restricts the scope of current exception for private copying under Spanish law, and incorporates to the law the new copyright levy system, under which payments of private copying levies are charged against the general State budget, enacted in Spain by virtue of the Additional Disposition 10ª of Royal Decree-Law 20/2011, of 30 December. Contrary to the previous regime, where copyright levies were charged ultimately on the end-users, all taxpayers are now committed to paying copyright levies, regardless of the use that each one has made of the private copy. At this point it should be mentioned that on September 10, 2014, the Spanish Supreme Court referred a number of questions (unanswered so far) to the European Court of Justice in the context of this new copyright levy system. It has been speculated whether the approval of the reform could be stayed pending the decision of the CJEU, as the outcome may curtail its application.
Fee for news aggregators
One of the most hotly debated issues has been the requirement for news aggregators, to pay publishers a fee if they link to their content. In addition, this right to compensation may not be waived by publishers and shall be made effective through the collecting societies. Fee supporters argue that news aggregators benefit from the contents publishers provide, whereas news aggregators consider that publishers are not obliged to make use of their services.
Two EU Directives transposed
The first Directive (Directive 2011/77/EU) extends the term of protection for fixation of performances and for phonograms from 50 to 70 years from the relevant event. The second one (Directive 2012/28/EU) is referred to orphan works and its main objective is to provide a legislative framework which guarantees legal certainty in the use of these works by cultural institutions and public-service broadcasting organizations.
The experience has shown that there are several problems in the performance of the model under which collecting societies operate. Therefore, there are some issues in which there is room for improvement, especially in those referred to the efficiency and transparency of the societies. Pending the complete review of the system, the reform already provides some proactive measures in order to address the main weaknesses found. Moreover, the new law provides the one-stop mechanism as a means of billing and payment, allowing users (such as restaurants, hotels and hairdressers) to simplify and reduce the costs of the transactions.
Fight against piracy
The reform strengthens the fight against piracy on two fronts: on the one hand, it raises fines for severe infringements up to 600,000 euros and for the minor ones up to 150,001 euros; on the other hand, the Section II of the Intellectual Property Committee, responsible for the closing down of web pages for piracy reasons, may intervene as long as the service provider had significant (not notorious) audience in Spain, or if there was a significant volume of non-authorized works displayed on the website.
Reproduction, rental and lending rights
With regard to academic and scientific works, the reform limits to 10 the maximum number of reproductions of a certain work. Besides, the reform implements Directive 2006/115/EC on rental and lending rights with the aim of clarifying the meaning of “book lending” and preventing public libraries from charging users when borrowing a book.
In conclusion, this partial reform, which is still awaiting final congressional approval, anticipates the major one which will hopefully come by next year. Despite its novelties, the intellectual property law remains outdated and needs to be updated to meet today’s changing environment and forms of innovation. However, this remains to be a challenge. The activities related to intellectual property amount to a 4% of the Spanish gross domestic product, a fact that reveals the involvement of a wide range of conflicting interests which has prevented effective solutions from being taken for a long time.