Bill to amend the Spanish Copyright Act Published
Last March 22nd a preliminary draft of a Bill to amend the Spanish Copyright Act (in Spanish) was released. The text has been long awaited both by industry and end users, as copyright is indeed one of the hot topics in the current Spanish public scenario.
In the past some, sneaky texts have circulated, however the document now issued is the one that will be the object of discussion between the legislator and several collectives and advocacy groups before it moves forward to the Parliament for final confirmation.
The text has raised many controversies from the very moment it was made public. Thousands of critics coming from end users, cultural industries advocacy associations, and collecting societies have flooded the newspapers, the Internet and the media in general.
The text proposes several amendments to the current-in-force text. They can be summarized in 4 main blocks:
1.- New requirements and measures to increase the degree of transparency in the management of collecting societies
This set of measures responds to a social demand deriving from some first-page scandals related to the misappropriation of collected funds that affected to some of these entities in the near past. The Bill puts much relevance on the way collecting societies distribute its revenues among their associates.
Several economic sanctions (that can amount up to 2% of their annual turnover) are also foreseen in the event of breach of any of these new requirements.
The draft does not make any mention to the proposal for a new Directive on management collecting societies but its spirit is indeed embedded within the Bill, mainly for what refers to the increased transparency in their management.
2.– The new Law will also toughen control over websites that link to third parties’ websites allowing download of illicit copyrighted content being these websites Spanish or not. This is somewhat surprising since the Spanish Courts have long claimed that merely linking is not to be considered illicit.
This measure seems to have been enacted due to the demands of the entertainment majors and content providers. Furthermore there are rumors that unless such an action (or a similar one) is implemented, Spain could be placed back within the US Special 301 report from which it was removed in 2012.
3.-The Second Section of the Copyright Commission is to see their powers enhanced.
This commission is in charge of fighting against online copyright infringement, but up to date it has not been very successful with an overall number of 30 proceedings in 12 months.
Now the new text proposes to increase their duties and capacities in order to provide with a new and more solid administrative control of online copyright infringement.
Among the proposals that channel this new role is the amendment of Article 256 of the Spanish Civil Procedure Act (in Spanish), in order to enable this Section to ask judges to compel service providers to identify infringers, something that so far was reserved for serious crimes.
On top of that the major set of amendments deal with the new capacity of this Commission to impose economic fines from 30.000 to 300.000 euros to the alleged infringing websites and the possibility -with the prior permission of a court – to ask advertisers and e-payment companies to stop working with reported websites. These measures are part of an overall strategy to cut all the economic resources of infringing websites, as a prior step before proceeding to its removal and full blockage.
Notwithstanding the above the new text explicitly excludes search engines like Google, and those websites that ‘occasionally’ link protected content from the scope of action of this Commission and the mentioned economic fines.
Likewise the penalty actions will-in theory- never target Internet end users.
4.- Restrict the legal concept of private copy.
With the new text the private-copy exception would be reduced to the minimum, and constraint to legally acquired copies of an original physical storage device such as a DVD or a Blu-Ray.
By such a definition private copy is distinguished from “licensed copy” that would include any content not included in a physical unit (downloaded content, streaming content) and not be subject of private copy.
It is pretty straightforward that with the downturn in the sale of content included in physical means by contrast with the remarkable increase of “virtual” (in a file or by streaming) content, the final amount collected by this redefined concept of private copy will also be notably reduced.
It is no wonder that the Spanish Government adopts this measure now that the economic compensation for private copy comes from the State Budget and not as in the previous system where end users had to assume this by paying a fixed amount when purchasing content players (DVD players or similar) or physical storage means.
Now that the text is official it will now enter the consultation phase. After that, it is expected that the very final version be voted in the Spanish Parliament by the end of this year.
Related Posts:
- The European Commission Proposal for a Directive on collective management of copyright
- The CJEU Considers that the Spanish Fair Compensation for Private Copying System is Incompatible with Directive 2001/29.
- Antonio Vitorino presents his recommendations on private copying and reprography levies in Europe
- The CJEU Confirms the Existence of Digital Exhaustion for Software