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Collecting societies unhappy with new measures to compensate for private copying.


The new International Observatory on Intellectual Property will explore points of convergence, solutions and protection.

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Spain/ 5.1 General legislation  

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 In 1987, it was superseded by a new 22/1987 Act, designed to bring copyright legislation up to date, improve the rights it covers and close the loop-holes left open by the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 1/1996 Legislative 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, pertaining to both artistic and scientific works, and included authors' economic rights, moral rights and droit de suite. The new social and economic situation and 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 amendsthe text of the Intellectual Property Act of 1996.

Among the objectives of the 23/2006 Act are the simplification and clarification of the obligations of the debtors for the use of the creations; the increase of transparency in the management of these rights; the introduction of flexible mechanisms for solving conflicts, and the redefinition of the role of the various levels of government with competence in the field.

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 and, in March 2012, the Commission became operational. In general terms, 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. At present, the government is working on a partial reform of the Intellectual Property Act that is guided by two basic principles: first, its digital orientation and second, the development of a framework of legal safeguarding of intellectual property rights that also supports talent and creative freedom. A specific reform will include the functioning of the Commission on Intellectual Property. 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 has seen 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 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.

With respect to the copyright societies, the 23/2006 Act, that amendsthe 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. Recently, the 1657/2012 Royal Decree that regulates the procedure for payment a fair compensation to the rights holders for private copying establishes 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.

There are currently eight collecting societies in Spain which are authorised by the Ministry of Education, Culture and Sport: SGAE, the Spanish Society of Authors Composers and Publishers; CEDRO, the Spanish Reproduction Rights Centre; AGEDI, the Association for the Management of Intellectual Rights; AIE, the Artists and Performers Society of Spain; VEGAP, Visual Management Entity of Plastic Artists; EGEDA, Audio-visual Producers' Rights Management Association; AISGE, Artists, Interprets, Management Society; and DAMA, Audiovisual media Author's Rights.

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 control of these entities. Among the initiatives presented by the then Minister of Culture to improve the functioning and control of these entities are the partial amendment of the Intellectual Property Act (in order to prevent indiscriminate creation of foundations and corporations by these collecting societies), the creation of a sanctions regime and the establishment of a mandatory public audit.

To introduce the 2001/84/CE Directive into the Spanish legal system, the 3/2008 Act on 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.

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 (Registry of Intellectual Property).

See also  chapter 8.1.2.

Chapter published: 20-03-2014

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              Council of Europe/ERICarts, "Compendium of Cultural Policies and Trends in Europe, 16th edition", 2015 | ISSN 2222-7334