Main changes to the Spanish Copyright Reform

Written on 4 Dec 2014

On 5 November 2014, Law 21/2014 amending the Spanish Copyright Act was published and it will enter into force progressively from 1 January 2015 . The reform addresses various issues such as the scope of the private copy and the payment of a fair compensation to publishers, colloquially known as “Google fee”. This Act also provides the second section of the Copyright Commission with additional powers to enforce copyright.

The Spanish legislator specifies the scope of the exception of private copy by ascertaining its boundaries. Since the reform, the private copy exception can be relied upon where the copyright protected content has been acquired through a commercial purchase or where it has been accessed through a legitimate act of communication. The scope of the extension is also limited by means of an exclusion from the material scope of application –in addition to databases and software– for those works made available to the audience through a wired or wireless system in such a way that it allows access from anywhere and at any time convenient for the audience.

Therefore, the copyright content made available to the public for its consuming at individual’s convenience (i.e. downloadable content from the Internet to be watched in a limited period of time) would be excluded from the scope of the private copy exception. However, other forms of content consumption would in principle still be included as long as the reproduction is made out of a legitimate act of communication (i.e. public TV broadcasting). Practices such as the so-called “time-shifting” and “format-shifting” would be still allowed provided that the content is accessed through a legitimate act of communication and it does not fall within the material exclusions from the exception.

Hence in Spain there would still be room for individuals to pass on copyright protected content to relatives provided that they do not communicate publicly the content. In this regard, it is worth noting that Spanish courts are specially paying attention, among others, to the concept of household –as a reference to set the limits of the private copy– and the concept of ‘audience’. Uploading content on internet platforms or playing it in public places would stand for examples falling outside of the private copy exception.

The reform also includes the payment of a fair compensation to publishers, colloquially known as “Google fee”. Pursuant to the provisions of article 32.2 of the reformed Spanish Copyright Act (Real Decreto Legislativo 1/1996, de 12 de abril, por el que se aprueba el texto refundido de la Ley de Propiedad Intelectual), the measure authorizes the use, without authorization, by content aggregators of not significant extracts of content, published in journals or websites regularly updated, whether informative, opinion-making or entertainment content, while establishing the “inalienable” right of the publishers or other right holders to receive a “fair compensation”, which will be effective through the Collecting Societies.

The text does not establish a definition of ‘content aggregators’. It is also unclear whether blogs and social networks will be required to pay the fee for indexing content from other publishers. In principle, this provision will be only applicable to content aggregators so search engines are outside the scope of this article. However, requirements are set for search engines to be excluded from the scope of the provision by which search engines should use ‘isolated words’ and not pursue own commercial purposes. Thus, it seems that the legislator aims for excluding solely those search engines that could perform searches using isolated words from the payment of the canon. The law does not state either the meaning of ‘not significant extracts of content’ even though the intention of the legislator seems to have been to include news summaries services within this concept (i.e. Google News).

The reform also allows the second section of the Copyright Commission to pursue not only webs of links but also those providing access to other pages where copyright protected content could be downloaded. It will specifically 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.

The second section may adopt measures to stop the provision of services infringing copyright. The Copyright Commission may address intermediaries, as well as advertisers and electronic payment companies. It may require discontinuing the advertising or payment services, as well as request the cancellation of the domain name where the domain name is registered in Spain or under the Spanish domain code (.es).

The second section is also in charge of blocking access to copyright-infringing sites. In this case, the judge authorisation will be required. The judge power shall be restricted grant the authorisation and not deciding about the infringement. In relation with blocking pages, the law uses the terms “proportionality and estimated effectiveness” but there is not a detailed definition of the specific meaning of these terms in the reformed SCA.

In all events, , the Spanish legislator has highlighted the transitional nature of the text so it is likely that those aspects will be clarified in subsequent amendments derived from changes in the regulation of this matter at EU level.