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Keys to understand the implementation of the Copyright Directive in Spain

Last November 4th, Royal Decree-Law 24/2021 brought into force in Spain the transposition of Directive (EU) 2019/789 and Directive (UE) 2019/790, aiming to adapt copyright to the digital environment.

This transposition modifies, among others, the Intellectual Property Law in force, including 15 new articles and 3 precepts and modifying 7 other precepts to adapt the legal system to the development of technologies and the Internet.

These are the main changes introduced by RD 24/2021 of the Intellectual Property Law:

1) Firstly, Article 66 RD introduces the definition of concepts such as “text and data mining,” comprising any automated analytical technique to analyze texts and data in digital format to generate information. In this sense, the holder’s authorization of IP rights will not be required for reproductions of works and other legitimately accessible services in mining cases.

2) The limits of IP rights are updated, stating the author’s authorization will not be required for reproductions of works and other legitimately accessible performances:

• The authorization would not be necessary in the case of text and data mining.
• On the other hand, it also allows the digital use of works and other performances in digital and cross-border educational activities for educational purposes, provided that accredited educational establishments use them, take place in a secure electronic environment, and the source is indicated with the author’s name where possible.
• Likewise, cultural heritage institutions are enabled to reproduce works that are permanently in their collections for preservation purposes in the preservation of cultural heritage.

3) It is worth mentioning the introduction of limits on “pastiche,” both digital and non-digital, whereby the author’s or right holder’s authorization is not required in case of transformation of a disclosed work, provided that there is no risk of confusion or damage to the original work or its author.

4) Measures are established to improve licensing practices and ensure greater access to contents, specifically regulating the use of works and performances outside the commercial circuit by institutions responsible for cultural heritage; as well to visual artworks in the public domain, which once the exploitation rights have expired, may be reproduced unless the resulting material is deemed to be original.

5) One of the most commented novelties has been the transposition of Art. 17 of Directive, regulating the use of protected content by service providers to share online content.

In this regard, it is established that service providers must obtain prior authorization from the authors, considering them not only as providers but also as responsible for the published content, and they should monitor the publications and adopt the necessary measures to detect and prevent copyright infringement

6) Likewise, a new obligation is introduced for service providers, who should disable access to the contents of their website during the broadcasting of a live event. In this respect, the Spanish legislator has been more restrictive than at the European level, adding the obligation to remove content that does not comply with the regulations while streaming.

7) The remuneration of authors and performers in exploitation contracts is regulated, and it should be adequate and proportionate, expressly excluding the position of dominance. On the other hand, the obligation of transparency implies that authors or performers should be provided with up-to-date information on exploiting their works or performances. This provision does not apply to authors of computer programs.

8) Another introduction in this RD is the regulation of online transmissions by radio and television broadcasting organizations and retransmissions, with the “country of origin” principle being applicable in the acts of communication, making available to the public and reproduction of such shows. The exercise of retransmission rights by right holders, whether or not they are broadcasters, is regulated.

9) Finally, Title VI includes amendments to the TRLPI, including the concept of “retransmission” and “editing contract.” However, the most relevant novelty is the repeal of the AEDE Canon, establishing a right with its own entity for news aggregators concerning the use of their online press publications to the platforms. In this way, they will be able to freely negotiate remuneration for publishing their online content, either individually or through a collective management entity. It also recognizes the right of review for non-equitable payment and the right of revocation except for joint works, collaborative works, and computer programs.

In short, this Decree-Law, a late transposition, adapts the regulation to the rapid evolution of ICTs, adapting copyright to the digital environment. Nevertheless, the approval of this regulation has given rise to an avalanche of controversy, and its application will gradually resolve doubts that it has raised since its inception.