Modifications to the Intellectual Property Act relate to copyright management societies, protection of intellectual property rights in the digital environment, and a transitory revision of the concept of private copying and harmonisation of EU Directives.
5.1.7 Copyright provisions
Rules governing intellectual property in Spain were based for many years on the 1879 Act, and the jurisprudence it generated over the following 100 years. In 1987, it was superseded by a new 22/1987 Act, designed to bring copyright legislation up to date, improve the rights it covers and close the loop-holes left open by the nineteenth-century legislation, particularly the difficulties arising from the lack of reference to an author's ongoing property rights over an original work ("droit de suite"). Ten years later, the 1/1996Legislative Decree had to undergo numerous amendments to bring it into line with European Union legislation. This 1996 Decree assembled all current rules on intellectual property, applied to both artistic and scientific works, and included authors' economic rights, moral rights and "droit de suite". The new social and economic situation (especially,the challenge of providing more effective protection to creators, permitting the peaceful dissemination of their creations by culture industries, and guaranteeing the whole of society's access to a plural cultural offer), led to the approval of the 23/2006 Act that amends the text of the Intellectual Property Act of 1996.
The growing discomfort by artists, authors and publishers over the high rates of Internet piracy led the government, after a broad political and social debate, to the adoption of the 2/2011 Act on Sustainable Economy. The forty-third final provision of the Act establishes the amendment of the Act on Services of the Information Society and the Intellectual Property Act. In the first, safeguarding intellectual property rights becomes a principle justifying the withdrawal of illegal content or the interruption of certain services provided in web pages. The second refers to the Commission on Intellectual Property, under the Ministry of Education, Culture and Sport, as the competent authority in mediation, arbitration and safeguarding intellectual property. Among the measures already adopted by the Council of Ministers is the establishment of a combined procedure, administrative and judicial, for the protection of intellectual property rights on the Internet (see also chapter 4.2.3).
In December 2011, the 1889/2011 Royal Decree that regulates the functioning of the Commission on Intellectual Property was approved. The text enhances negotiated, extrajudicial and voluntary solution for conflicts, as well as protects the rights of both creators and citizens to have a legal, diverse and affordable supply of cultural products.
In November 2012, with the collaboration of private companies, industry associations and public organisms, the Ministry of Education, Culture and Sport launched the International Observatory on Intellectual Property to explore points of convergence in matters of businesses of cultural, content and creative industries, as well as in the search for solutions to conflicts and in national and international regulatory developments.
Another controversial aspect of the Intellectual Property Act has been, until recently, the establishment of a lump sum payment on analogue, first, and digital support, later, on behalf of rights holders. This fee was intended to compensate authors for private copying of work that had already been disclosed. The heated debate on the Spanish "digital canon" finished, in December 2011, when it was abolished by the government (20/2011 Royal Decree Act). A year later, the government adopted the 1657/2012 Royal Decree that regulates the procedure for payment of fair compensation to the rights holders for private copying with a charge to the General State Budget. Thus, the government considered that citizens could benefit from the limit of private copying as compensation for a part of the taxes that they satisfy. However, collecting societies saw in this measure a double taxation for those citizens who buy these devices, as their prices have not decreased, and an unfair measure for those who do not buy them and have to pay the fee via taxes.
In order to deal with the most urgent matters, in 2014, a new partial reform was approved by the 21/2014 Act that modifies the refunded text of the Intellectual Property Act, approved by the 1/1996 Legislative Decree Act, and the 1/2000 Act on Civil Procedure. The three main novelties are: new mechanisms for the supervision of copyright management societies, stronger instruments to react against intellectual property right infringements aimed at encouraging the legal supply of cultural contents in the digital environment, and a transitory revision of the concept of private copying (waiting for a European harmonisation of the issue). Moreover, the Act introduces into the Spanish legal system two European Directives: the 2011/77/UE Directive, by which the period of protection of the rights of performers and sound recordings is extended in 20 years (thus, adopting the 70 years limit), and the 2012/28/UE Directive on orphan works that allow certain uses to cultural institutions and public service broadcasting organisations in the European Union.
The Act also adapts the limit of citation or reference to the realm of content aggregators on the Internet, recognising the right of the editing companies and of the authors of news to be economically compensated for the exploitation of their contents. With these measures, the compensation system currently applicable to the "press-clippings" or newsletters is extended to the Internet, so there is a legal basis that permits agreements between the two concerned parties (editors of news and Internet content aggregators).
The reform was passed with the votes of the majority party and it still generates a lot of controversy. Other parties are filing appeals to the Constitutional Court, and the Supreme Court of Spain has itself presented questions to the European Union Justice Court regarding the compatibility of the 1657/2012 Royal Decree, that regulates the compensation for the private copying to be paid by the General Public Budgets, with the European Directive 2001 that regulates copyright.
Regarding collecting societies in Spain, there are currently eight which are authorised by the Ministry of Education, Culture and Sport: the Spanish Society of Authors Composers and Publishers (SGAE), the Spanish Reproduction Rights Centre (CEDRO), the Association for the Management of Intellectual Rights (AGEDI), the Artists and Performers Society of Spain (AIE),the Visual Management Entity of Plastic Artists (VEGAP),the Audio-visual Producers' Rights Management Association (EGEDA),the Artists, Interprets, Management Society (AISGE), and the Audiovisual Media Author's Rights (DAMA).
The 23/2006 Act, which amends the text of the Intellectual Property Act of 1996, obliges these societies to set up welfare and support services for "authors, performing artists or cultural workers", either themselves or through third parties. Societies are to spend 20% of their copyright fees on such services. Some companies, such as the SGAE, the VEGAP and AISGE have set up special foundations to fulfil these obligations. These are the SGAE Foundation, the Foundation Art and Law and the AISGE Foundation, respectively. The 1657/2012 Royal Decree that regulates the procedure for payment of fair compensation to the rights holders for private copying has established that the copyright societies will have to spend 40% of the amount of this compensation on health care and training activities, as well as on the promotion of authors, performing artists and cultural workers.
The allegations of irregularities in the financial management of one of these collecting societies (SGAE), in July 2011, led to a heated political and social debate around the transparency, control, accountability and effective supervision of these entities. In the new Intellectual Property Act (21/2014 Act), new tools to reinforce control and effective supervision are implemented, as well as a single instance for invoicing and payment.
Also in matters of copyright and with the aim of introducing the 2001/84/CE Directive into the Spanish legal system, the 3/2008 Acton resale rights for the benefit of the author of an original work of art was passed in December 2008. This Act includes some modifications to the previous regulation, such as the calculation of a remuneration system, the shared responsibility of sellers and the professional art market to pay duties, and the collection of this payment through collecting societies. In addition, the Act includes a series of measures that address specific problems: the fight against professional intrusion, the operation of the Internet trade in works of art and the obligation of the Fund for Fine Arts to deliver an annual report on the effectiveness of the Act. More recently, the 624/2014 Royal Decree has developed the right for authors to get paid for lending their works in certain public establishments. The main novelty lies in the procedure to pay and in the objective criteria to calculate the remuneration, as the obligation to remunerate had already been introduced in the reform of the amended text of the Intellectual Property Act carried out by the 10/2007 Act for Reading, Books and Libraries, that approved a transitory system to calculate the remunerations, and is waiting for a royal decree that should regulate it definitely.
Although copyright legislation is the exclusive domain of the central government, the Autonomous Communities of Andalusia, Aragon, Asturias, Catalonia, Extremadura, Galicia, La Rioja, Madrid, Murcia and Valencia have some local administrative powers to run their own registries under the aegis of the state-run coordinating committee of the central copyright register (Intellectual Property Register).
See also chapter 8.1.2.
Chapter published: 24-06-2015