Copyright reform: Spain

Written on 17 Dec 2014

A new law amending the Spanish Copyright Act (“SCA”) was published on 5 November 2014, and will enter into force progressively from 1 January 2015 onwards.

The reform addresses various issues such as compensation for private copying, the introduction of additional measures to fight against piracy, the improvement of transparency in the activities of the copyright collecting societies and the payment of a “fair compensation” by the aggregators of content to the publishers for the use of the content. Moreover, the law confers additional powers for enforcing copyright on the Copyright Commission.

The Spanish exception for private copying is now limited to the situation where copyright content is either acquired through a commercial purchase or accessed through a legitimate act of communication – excluding on demand services. It is also limited to copies made by the users themselves, excluding for instances services offered by commercial cloud PVR providers. In principle, it may be possible to exclude copies made using third party devices, but this remains to be clarified by the case law.

Once a copy has lawfully been made, it appears still to be permitted for individuals to pass on copyright protected content to relatives and other people provided that they do not communicate the content publicly. In this regard, it is worth noting that the concept of household –as a reference to set the limits of the private copy– and the concept of ‘public’ or ‘audience’ are among those that have drawn the attention of Spanish courts the most. Uploading content on internet platforms or playing it in public places would stand for examples falling outside of the private copy exception.

The question of what constitutes a fair compensation to the author for private copying has been controversial over the last years in Spain jurisdiction, firstly being levied on manufacturers –leading to price increases to be borne by acquirers– of devices able to store or record copyright protected content, and then being charged on the State General Budget since the former compensation regime was pronounced “illegal” by the European Court of Justice (Padawan Case) for its indiscriminate application to nearly all devices. However, the State General Budget approach is now also being queried, the Spanish Supreme Court having raised a preliminary ruling to the European Court of Justice in September 2014 questioning whether the Royal Decree 20/2011 – which eliminates the compensation method whereby the fair compensation was charged on manufacturers – complies with European law.

The proposal for fair compensation to publishers, on the other hand, was not in the previous version of the SCA. This proposal, known colloquially as the “Google fee”, requires the payment of a fee to content aggregators in order to provide a financial compensation to publishers for the use of their content. In return, content aggregators can use insignificant fragments of content from journals or regularly updated websites, without authorisation. This provision is being criticised by competition authorities since they consider that it might be contrary to the right to conduct a business as the entrepreneur cannot decide whether or not to collect money from users.

Finally, the Second Section of the Copyright Commission will now have authority to pursue not only webs of links but also those providing access to other pages where content protected by copyright could be downloaded. In particular, it will include those information society services providers that offer sorted and classified listings of links, regardless of whether these links can be initially provided by the service recipient. Once a right holder demonstrates that it has requested the infringer to remove the illegal content, the Copyright Commission can begin its procedures ex officio, ultimately (with the authorisation of a judge) blocking access to copyright-infringing sites. The fines for very serious infringements have been increased to up to €600,000.

For the full details of the changes to Spanish copyright law, please see here.