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Wednesday, 5 November 2014

What is the recent Spanish IP reform all about copyright-wise?

Elena Molina
A few days ago The IPKat reported that Spain has now adopted the final text of a law that will enter into force on 1 January 2015, and significantly reform its IP law system. In the guest contribution below Katfriends Elena Molina and Sergio Miralles (Intangibles Legal S.L.P) explain in detail what this reform means for online piracy, news aggregators, the private copying exception, collective rights management, and a bit of EU directive implementation.

Here's what Elena and Sergio write:

"On 30 October 2014 the Spanish Parliament passed the proposal for the reform of Royal Legislative Decree No. 1/1996, of 12 April, approving the Restated Text of the Copyright Act (the “Reform”). The most relevant amendments introduced are briefly described below.

Sergio Miralles
Tackling online piracy

First of all, the Reform enhances the legal tools for fighting against online piracy through the Sección Segunda de la Comisión de Propiedad Intelectual (the “Commission”). This is a Spanish administrative body ascribed to the Spanish Ministry of Culture which is in charge of adopting the appropriate measures to safeguard IP rights over the internet. In any event, before the Commission starts infringement proceedings, the right holder must send a cease and desist letter to the alleged infringer clearly identifying the specific content that should be removed as well as its location.

Under the Reform, to qualify as an infringement, the alleged infringer must: i) intentionally induce the unlawful conduct; ii) cooperate, being fully aware or having enough evidence that the offending conduct is taking place or; iii) where having a direct economic interest on the unlawful conducts’ outcome, have the ability to control that conduct.

Are lists of
infringing
links this cute?
Pursuant to Article 12 of the Ecommerce Directive, service providers that carry out mere technical intermediation activities are excluded from any liability. However, the Commission may initiate proceedings against those individuals or entities providing indexed lists of links to unlawful contents, regardless of whether these links have been provided by a third party or not. Apparently, this provision may force information service providers to cope with the risk of their users providing themselves links to unlawful content. Before commencing proceedings against a services provider, the Commission will take into account new criteria, such as the number of alleged infringing works accessible through the allegedly infringing service as well as the number of users in Spain.

The applicable penalties should the Commissions’ order to remove the allegedly unlawful content were disregarded are the following: i) fines up to EUR 600.000; ii) interruption of infringing services up to one year; iii) order directed to the internet service provider to block internet access; iv) ceasing order directed to the payment and/or advertising service provider, if any; v) cancellation of the gTLD “.es” used by the alleged infringer up to six months and/or; vi) ceasing order directed to funding sources, where applicable. In any event, the Commission will need a judicial authorisation to execute such cessation measures.

News aggregators

Secondly, the Reform establishes a new right consisting of an equitable remuneration to be paid by news aggregators to publishers or other right holders. This right will arise any time a news aggregator service uses non-insignificant pieces of information, opinion or entertainment previously published in a newspaper or a website periodically updated. Images are excluded as well as search engine services when using isolated pieces of information necessary to provide results to a specific search, provided that such services lack commercial purpose and a link is provided by the search engine to the website hosting the original content.

Private copying

Third, the Reform limits the scope of the private copying exception [those numerous private copying enthusiasts will promptly recall that the Spanish Supreme Court has recently referred a number of questions to the Court of Justice of the European Union regarding the interpretation of this exception under Article 5(2)(b) of the InfoSoc Directive]. Specifically, it excludes all reproductions made for professional or business uses as well as all those made from works not obtained by means of legal purchase or public communication. However, it does not change the current compensation system, in force since 1 January 2012. Under the current system, the compensation is calculated annually and charged to the State Budget on the basis of the expected damages inflicted to the right holders as a result of the private copying use. In any event, the Reform keeps silent about the specific criteria to determine the exact amount to be paid by the State.

Collective rights management
The implied clause in most
transposition provisions of EU directives

Fourth, the Reform subjects the activity of collecting societies to more administrative controls with the aim to improve their transparency and efficiency and introduces a centralised payment system to redistribute the income amongst the authors.

Orphan works and term of protection


Lastly, the Reform incorporates into Spanish law Directive 2012/28/EU on certain permitted uses of orphan works and [with a slight delay, since the deadline for national transpositions was 1 November 2013] Directive 2011/77/EU, amending Directive 2006/116/EC on the term of protection of copyright and certain related rights, which extends the term of protection for phonograms from 50 to 70 years.”

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