Better late than never: Spain transposes Directives on copyright and related rights

In order to comply with the transposition obligation – yet with 5 months of delay and with a result that seems to be (at least) questionable – on 3 November 2021, Spain published the Royal Decree-Law 24/2021 on the transposition of, among others, the European Union Directives on copyright and related rights, Directives 2019/789 and 2019/790 (the "Royal Decree-Law"). In this article, we assess the amendments introduced.

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Although most of the amendments introduced in the field of intellectual property (Book Four of the Royal Decree-Law) came into force on 4 November, the legal text must be immediately submitted to the Spanish Congress for its debate and voting. For this reason, the legal wording could be validated, undergo certain changes, or even be repealed.

Despite this, it is still useful to briefly go through the most significant amendments introduced in the field of copyright and related rights by the Royal Decree-Law:

  1. Modification of the intermediary service providers’ liability regime

In the context of the ongoing debate regarding the suitability of the liability regime established so far in the E-Commerce Directive (Directive 2000/31/EC), which is commonly known as the “Safe Harbour” regime, the Royal Decree-Law introduces certain clarifications.

In particular, the Royal Decree-Law now clarifies that any act through which a service provider of online content sharing services grants to the public access to works protected by copyright and uploaded by its users, amounts to a communication to the public of such work. In this sense, in order for service providers to be able to carry out such communication, they must obtain the corresponding authorisation from the relevant right holders. Otherwise, they would be held liable unless they can prove that they have made – inter alia – their best efforts to obtain the corresponding authorisation. Special attention should be paid to the amendments introduced with regards to live content, since it is provided that the service provider must disable access to or remove such content from their website during the actual retransmission of the live event.

  1. Updating of the list of limits and exceptions to intellectual property rights

The Royal Decree-Law has introduced new limits and exceptions as well as supplemented some existing ones in order to take into account the new digital uses of protectable works and services.

These limits and exceptions relate, in particular, to the reproduction of protected content for text and data mining purposes, the transformation of works by means of the so-called “pastiche“, the use of protectable works and performances in digital and cross-border educational activities, and the reproduction of protectable works and performances by institutions responsible for cultural heritage for conservation purposes.

  1. Establishment of measures to ensure a fair remuneration of authors and performers in contracts

The Royal Decree-Law has also set forth certain provisions regarding the adequacy and proportionality of the remunerations due, as well as transparency obligations.

  1. Regulation of online transmissions by broadcasters and retransmissions of radio and television programmes

  1. Abolition of the AEDE royalty and introduction of the new related right of publishers

The so-called “AEDE” royalty – a mandatory and unwaivable collective management fee – has been deleted and a new related right of publishers has been introduced in relation to the online use of press publications by providers of electronic content aggregation services.

  1. Establishment of measures dedicated to the improvement of licensing practices and to ensure greater access to content

In particular, the Royal Decree-Law has established certain measures to facilitate conditional access to protected content outside the commercial circuit by cultural heritage institutions.

  1. The attribution of new competences to the First Section of the Spanish Copyright Commission

The functions of mediation, arbitration, and determination of fees and control of the First Section of the Copyright Commission have been updated. The amendments ensure that the Commission’s functions also cover some of the issues that have been introduced in the Act (e.g. conflicts regarding the transparency obligation).

 

It is clear that one of the main objectives of the Royal Decree-Law is to develop a favourable and legally secure environment for the exploitation of content protected by copyright and related rights, particularly in the context of constant technological evolution.

The new business models and agents that have arisen as a result of digital technologies and the Internet have led to a regulatory framework that has become progressively ineffective (or, at least, generic and ambiguous). In light of this, and of the certain emergence of future innovation, legislative amendments were – and still are – necessary.

In any case, we will have to wait for the final wording of the Royal Decree-Law to know what the new Spanish copyright framework will be, of which we will keep you informed through MediaWrites.

David Fuentes Lahoz is an associate in our Madrid office. He has experience across a wide range of IP & IT work. In this sense, his practice covers all IP & IT-related matters, including patents, as well as industrial designs, trademarks, domain names, trade secrets and unfair competition, with particular expertise in copyright and related rights. His work includes intellectual property-related pre-contentious and contentious matters, advising large companies and individuals on intellectual property matters, and representing companies in complex transactions.

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