On 5 March 2011, the Spanish Parliament approved an amendment of the Spanish Copyright Act allowing a Commission (dependent of the Ministry of Cultural Affairs) to close down websites that infringe copyrights.
After months of public debate, the Spanish Government finally enacted the so-called "Ley Sinde" (after the name of the current Minister of Cultural Affairs, Ms. Angeles González- Sinde) as of 6 March 2011. The law was adopted as part of a group of measures aimed at improving the current situation of the Spanish economy — "Ley de Economía Sostenible" (Sustainable Economy Act). The most relevant change — in addition to the Ley Sinde — is the announcement of the amendment to the Spanish copyright levies regime (Article 25 of the Copyright Act) within the next three months. This is the result of the recent judgment of the Court of Justice of the European Union (CJEU) in the "Padawan" case, where the court declared the Spanish copyright levy system was contrary to the EC Directive 29/2001.
The Ley Sinde consists of an amendment to Article 158 of the Copyright Act, which created, in 1996, a Commission within the Ministry of Cultural Affairs ("Intellectual Property Commission") entrusted with the mediation and arbitration between collecting societies and third parties.
The new Article 158 of the Copyright Act establishes a second section of the Commission. While the first section keeps its former functions, the second section (composed of five members from different ministries) will be in charge of protecting IP rights in relation to infringements by any person (individuals or legal entities) rendering services over the Internet (including services which are not directly compensated by the addressee). For these purposes, the section is entitled to take measures aimed at the suspension of such services and the withdrawal of any content which infringes IP rights if the person or entity rendering the services, directly or indirectly, acts for a consideration or has caused or may cause material harm.
The procedure — subject to further legal development in the following months — will be as follows:
- It can only commence at the request of the IP right owner or its representative (never ex-officio).
- Before taking any measure, the service provider must be summoned so that within the next 48 hours, he can voluntarily withdraw the infringing content or, alternatively, he can defend himself and can submit evidence in relation to the legality of his activities.
- All the evidence will be heard within the following two days. The parties will then have a maximum of five days to submit their final pleadings. A decision will be made within the next three days by the Commission.
- If the Commission orders any measures, these will not be implemented unless they are confirmed by a court after a hearing in which the representative of the Administration, the Public Prosecutor, and the IP right holder shall be heard.
While the first Government proposal of the Ley Sinde had been rejected some months ago by the Spanish Congress, a new version was negotiated in the Senate between the two major Spanish political parties. The amendments in the final text were aimed at raising the level of protection of the rights of all involved parties. As a result, there is now a requirement of judicial intervention in the process to implement the order of the Commission, as well as the possibility of voluntary withdrawal of the infringing material by the defendant and the need of the whole procedure to commence at the request of the IP right owner.
Finally, the procedure does not preclude the IP right owner from using other legal alternatives (i.e., civil, criminal, or administrative proceedings) to protect his rights.
Only when the Spanish Government has further developed the functions and procedures of the Commission — by means of a regulation — and, in particular, when the second section commences its activities, will we know whether it is a real alternative for IP right owners to defend their rights