Several major legislative reforms by the Spanish Ministry of Justice have been performed in the last months. Now it is the turn of the Criminal Code and for the purpose of this article we must focus on those reforms relating to offenses against IP rights, among the different amendments incorporated.
The reform proposed by the Government has been identified as a "technical review" of some aspects of this type of crimes and highlights the inadequacy of the current Criminal Code in order to protect the effectiveness of IP rights as long as the legislator insists on criminalizing such behaviors.
In general terms it is proposed a reclassification of penalties, reserving the highest (imprisonment of 1 to 4 years) for actions carried out large-scale or by a wholesaler; an intermediate response (imprisonment from 6 months to 3 years in prison) regarding conducts carried out by retailers; and a minimum for travelling distributors and marketers or due to an occasional activity (imprisonment from 6 months to 2 years).
Misdemeanor disappears. A fine or up to 6 months to work on behalf of the community will be imposed to illicit conducts with low economic impact.
In particular and for what offenses against copyright is concerned, behaviors consistent on occasionally facilitating to a third party the access to protected contents are punished with imprisonment from 6 months to 2 years, increased to 3 years (currently 2 years) for those who contribute to the elimination or neutralization of technical devices to protect copyrights. This particular change happens with the amendment of the former expression "specifically designed for" for "means primarily destined to" remove such measures, putting an end to the current position of Courts understanding that as long as the device was capable of also providing legal functionalities, the crime could not happen.
The most important proposal considering as copyright crime to regularly provide an Internet service allowing the download of protected works. Moreover, the lawmaker specifically refers to the behavior consisting on offering classified lists of links to works and other contents even if these had been previously provided by users. Another novelty is the possibility of blocking the website from which exclusively or predominantly protected contents are offered or distributed.
Unfortunately, a train has passed to refine some aspects of the basic type protecting the so called industrial property rights (trademarks, patents, designs, etc.) such as the requisite of "prior knowledge of the record" for criminal enforcement.
Another missed chance is regarding parallel imports.
This is the first draft of a reform that just started the tour and that will certainly find more than a stone in its path.