A few weeks ago the Council of Ministers adopted the Draft Bill amending the Intellectual Property Law (LPI) and the Act 1/2000 of Civil Procedure, (LEC) confirming the suspicions of both authors and users of works: this is a new patch to the current text, far from solving problems found with new technologies, it incorporates changes that forecast future and notorious confrontations between users and authors and rights holders.

As the Statement of Purpose of the Draft Bill reflects, measures introduced are grouped into three subjects:

  • Review of the private copying system.
  • Design of effective oversight of collecting societies managing authors' rights.
  • And the strengthening instruments to react against the violations of rights, allowing the legal offer of contents in the digital environment.

Respect the private copying system, the Draft Bill comes to adapt the existing text in new mechanism of fair compensation for private copying introduced by the Royal Decree-Law 20/2011, of 30th December, as from January 2012 that compensation is payable under the State Budget. It also incorporates a new restriction on private copy limit expressly excluding reproductions for professional or business use and reproduction made of recordable media not owned by the user, following the Padawan doctrine arose from CJEU.

As a novelty it has been introduced the modification to the limit of illustration for teaching. This limit, it has not been approved so far, and yet it is already so famous as the private copying levy. In this respect it should be underlined the possibility introduced to illustrate the educational activity beyond the classroom  and its inclusion, within the limit, to the university textbooks or publications assimilated, so far been excluded, although it introduces the obligation for the user entities  of these kind of works to pay an equitable remuneration to the authors. This new remuneration will be managed by collecting societies.

The second subject refers precisely to these collecting societies, introducing changes aimed at increasing the efficiency and transparency of the system. In this sense, despite the Statement of Purpose of the Draft Bill announces a future review in depth of the collecting societies, it introduces a detailed catalogue of obligations for collecting societies both with Government and its members; penalties for breach of its obligations, and extends the competency of the Commission on Intellectual Property on the determination and control of the tariffs fixed by collecting societies. Surprisingly, contrary to the settled doctrine of our Courts, the proposed modification limits the accreditation of their legitimacy, by their statutes and a certification of the Ministry, to the exercise of the obligatory collective management.

The third subject is about the Commission on Intellectual Property. Everyone knows the lack of effectiveness of the Commission in the fight against infringements via Internet, and precisely this lack of effectiveness has led to little more than a year of operation of the Commission, they will carry out a review of the protection proceedings for the prosecution of those who cause significant damage offenders, quantitatively or qualitatively, to the Author’s rights, including those known as webs of links. This will try to provide more effective mechanisms of reaction to the Commission and the adoption of measures for the interruption of service in case of not meeting the requirements of the Commission, the possibility of requiring the collaboration of electronic payment and advertising services to suspend the services, or the possibility of imposing fines of 30,000 to 300,000 EU.

Finally note that the Draft Bill adapts the LPI to the content of the Directive 2011/77/EU extending the term of protection for fixations of performances and for phonograms and also amends the LEC entering a specific course of preliminary investigations aimed at identifying a services provider of the information society.