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Enforcement

Jurisdiction

Which courts are empowered to hear copyright disputes?

The Mercantile and Commercial Courts.

Infringement

What acts constitute copyright infringement in your jurisdiction (including with regard to online and digital content)?

The following constitute copyright infringement:

  • unauthorised reproduction;
  • distribution;
  • public communication (including making available to the public); and
  • transformation.

Examples of these include making illicit copies of works, making available copyrighted material without authorisation by uploading it to the Internet and giving access to users through links.

Is contributory infringement recognised in your jurisdiction (including liability for internet services providers and other online/digital actors)?

Yes.

Actions

What actions can be taken against copyright infringement (eg, civil, criminal or administrative), and what are the key features and requirements of each?

The Spanish legal system offers various options to authors to protect their work against infringers:

  • The author can request the cessation of the unlawful activity before the mercantile courts – this can also be requested from internet service providers without filing a claim against the infringers.
  • There can be a criminal action, provided that the criminal law requirements are met.

With respect to online infringement, the Spanish legal system provides two main approaches to seek the blocking of sites:

  • by initiating an administrative procedure to be carried out by the Commission of Intellectual Property; or
  • by bringing an action directly against the infringers through the Ministry of Education, Culture and Sport.

Who can file a copyright infringement action?

According to Article 138 of the Spanish Copyright Act, copyright holders are entitled to seek an injunction restraining the unlawful activity of an infringer. Similarly, they are entitled to claim reparation for material and moral damages suffered.

In this sense, the act recognises the following rights holders:

  • authors of the works (Article 5);
  • authors’ heirs (Article 42); and
  • any other physical/natural or juridical/legal legitimated by way of an assignment agreement made on an exclusive basis (Article 43).

Only authors have moral rights. However, heirs and expressly authorised third parties can exercise moral rights after the author’s death.

What is the statute of limitations for filing infringement actions?

Five years.

What is the usual timeframe for infringement actions?

It depends on the court workload. As a general rule, it usually takes 12 to 18 months from the date of filing the statement of claim until a first-instance ruling is rendered.

What are the typical costs incurred in infringement actions?

As a general rule, the costs incurred in infringement actions are:

  • attorney fees;
  • court representative fees;
  • expert fees; and
  • translation fees (all documentation must be submitted to the court in Spanish.

How are attorneys’ fees handled? Can they be claimed in infringement actions?

Yes, these can be claimed. As a general rule, according to the Spanish Procedural Law reasonable attorneys’ fees are assumed by the losing party provided that the prevailing party had all of its pleas upheld. Litigation costs are fixed by the court in separate proceedings.

Injunctions

What rules and procedures govern the issuance of injunctions to prevent imminent or further infringement?

In accordance with Article 141 of the Spanish Copyright Act, which covers interim measures, there are two main scenarios:

  • the infringement has already occurred; or
  • there are reasonable grounds to fear that infringement is imminent.

In both scenarios, the judicial authority may, at the request of any rights holder, order any precautionary measures as may be necessary to deal with the specific circumstances. Article 141 of the act establishes an open list of injunctions, including:

  • the seizure and deposit of revenues arising from the unlawful activity or, where appropriate, the deposit of the amounts payable by way of remuneration;
  • suspension of the reproduction, distribution and communication of the work to the public, as appropriate, or any other unlawful activity which constitutes an infringement of the act, as well as the prohibition of any activities defined if these are yet to happen; and
  • the seizure of the copies produced, or the devices used to execute infringing activities.

Remedies

What remedies are available to owners of infringed copyrights?

The following remedies are available to owners of infringed copyrights:

  • the publication, in part or in full, of the judicial resolution, at the infringer’s expense;
  • suspending the infringing exploitation or the infringing activity;
  • prohibiting the infringer from resuming the infringing exploitation or activity;
  • withdrawing and destroying unlawful copies and equipment used for the infringing activity;
  • removing instruments used for non-authorised suppression or neutralisation of any technical device used to protect works; and 
  • damages for:
    • the loss suffered due to the infringement (direct damages);
    • loss of profits; and
    • all expenses incurred by the rights holder to secure reasonable evidence of infringement.

Customs enforcement

What customs enforcement measures are available to halt the import or export of pirated works?

The rights holder can complete the port intervention form to provide the authorities with information about the works to include it in their databases. The port authorities will then notify the rights holder if they discover potentially infringing content coming across the border.

Port authorities retain illicit copies for 10 days, giving the rights holder time to confirm whether such products are legitimate. If the rights holder confirms that such products are illegitimate, it can ask for their destruction.

Defence

What defences are available to infringers?

There is no precise answer for this since the defence depends on the case and facts. However, usually the defence is an issue of legal argument or evidence. For instance, an infringer could allege that it has not committed infringement because it has just made a parody of a work.

Appeal

What is the appeal procedure for infringement decisions?

An appeal must be lodged before the first-instance court within no more than 20 working days. The other party has 10 days to file an opposition to the appeal.

It is not possible to file new documents alongside the appeal unless such documents prove new facts or were incorrectly rejected at first instance. As a general rule, the appeal court renders its decision without hearing the parties – that is, no court hearings are held unless evidence needs to be assessed at second instance, which is unusual.

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