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Reform of the Spanish Intellectual Property Law

The Congress will probably approve the project for the reform of the Intellectual Property Law this week. The text, which partially modifies the current Spanish Intellectual Property Law has and is still being the object of many controversies, given the fact that all the sectors involved: creators, industries in the sector and users have expressed their disagreement to a greater or lesser degree, which means that its impending approval has very few supporters, even more so taking into account that the Government itself has announced the imminence of a more important reform.

The most important aspects of the reform are:

1.- The concept of private copying.

Redefinition of the concept of private copying, understood to be that which the user (a natural person) may carry out for his personal use, which is legal but enables the author of the work to obtain a financial compensation.

The reform also establishes a clear difference between physical and digital storage, which means that copies made of contents legally acquired by a license will not be protected by private copying rights, the terms of the said license being those which will determine reproduction rights.

The concept of the “Levy” was created in conjunction with that of private copying. This is the compensation that the authors receive for any copies made of their works.

Under the previous regulations, the manufacturers were those responsible for paying the copyright collectives for the sums corresponding to recording devices. A new modification was carried out in 2011, by means of which the Government established that this compensation would be paid through the General Budgets and its amount was reduced. The copyright collectives have presented an objection to the same.

To the above-mentioned situation must be added the decision of the Supreme Court to ask the Court of Justice of the European Union whether this new system of compensation is in accordance with European legislation, given that no country has established it in these terms.

Apart from this fact it is necessary to add a report issued by a mediator appointed by the European Commission whose recommendations are to reestablish the already revoked system of remuneration by equipment and supports.

Given all the above, and despite the approval of the reform, this system seems to be transitory, given that a Community harmonization to unify compensations for private copying is under debate.

2.- Google tax/AEDE (Association of Spanish Newspaper Editors) levy

This is another of the most controversial sections of the reform, given that it foresees the establishment of a levy to compensate the authors and owners of journalistic texts for fragments of the same used by service providers.

3.- Reinforcement of the monitoring mechanisms of copyright collectives carried out by Public Administrations in order to promote transparency, control and effective supervision.

Resources such as the following are created to this end: the creation of a detailed and systematic catalogue of the obligations of copyright collectives and the definition of a set of infractions and sanctions which will make it possible to demand accountability from the same for incompliance with their legal obligations.

A “single-window” mechanism is also created. The object of this is to facilitate the procedure of the end-user, thus eliminating the need to contact and negotiate with different entities. To this end the copyright collectives will need to constitute a private legal entity which will be responsible for centralization and management.

4.- Transposition into the national law of Directives regulating intellectual property related matters, amongst which is that concerning producers of phonograms, whose validity will be extended to 70 years, as well as the management of orphan works.

5.- Protection of Intellectual Property rights on the Internet.

The text also establishes instruments to respond to actuations which infringe copyright online, amongst which are: the modification of civil procedure law so that the author who esteems that his/her copyrights have been infringed can request a judge to identify the owner of the website, the increase of economic sanctions in the case of repeated incompliance with the removal of illegal contents.

Once the Congress has definitively approved the text it will come into force at the beginning of 2015. However, as already mentioned, the putting into practice of this reform has a limited date given that there is European legislation being debated at this time.

Carmen Sánchez-Puelles