Spanish Act 2/2019: an approach to the most recent modification of the Spanish Copyright Act

Written on 21 Mar 2019

The Spanish legislator approved a text that implements EU Directives 2014/26/EU and 2017/1564 into Spanish law and modifies the Spanish Copyright Act, whose modifications mainly affect the regulation of collecting societies and their powers. Additionally, some other rights are slightly modified as explained hereunder.

On 1 March 2019, the Spanish legislator passed the modification of the Spanish Copyright Act by adopting Act 2/2019 with the objective of implementing two EU Directives –Directive 2014/26/EU and EU Directive 2017/1564– into Spanish law. Although that the mentioned EU Directives were already partially implemented into the Spanish law through the Royal Legislative Decree 2/2018, this text would not be appropriate to amend the Spanish Copyright Act since a formal Law would be needed.

In this sense, the Royal Legislative Decree 2/2018 was adopted urgently implement the provisions of Directive 2014/26/EU, as the European Commission brought an action against Spain before the CJEU for not complying with the implementation deadline set forth in said Directive. Nearly a year after having adopted said piece of legislation, the Spanish legislator have taken the final step into consolidating the provisions of the relevant Directives within the national law with the appropriate legal text.

The most significant modification introduced by Act 2/2019 would enable the closure of copyright-infringing websites without judicial authorisation. Indeed, the Second Section of the Copyright Commission –the so-called “Sinde” Commission, after the name of a former Minister of Culture– will not need to obtain judicial authorization to require those Internet-access service providers of the copyright infringer to block the access to said website under certain circumstances. The block request shall at any time be an ancillary consequence to the main legal consequence –EUR 150,001 to 600,000 fine– to be imposed on copyright-infringing websites whose owner has failed to comply with two or more administrative orders from the Copyright Commission to remove or block access to the copyright-infringing contents on their websites. The provision states that if the infringement is serious enough and has a significant social impact, it would be legitimate to request the website closure by the intermediation service provider for a maximum duration of one year.

It must be noted that Act 2/2019 does not modify the requirement of gaining judicial authorisation for requesting the collaboration of intermediation service providers in those cases where the ultimate measures (economic fine and website closure) now introduced by said Act are not applicable. Thus, as enabling an administrative organism to cease certain information society services resembles quite a severe measure since it disposes of fundamental rights and freedoms enshrined in the Spanish Constitution; it should be solely adopted as a last resource to bring the relevant infringement to an end. As any other administrative resolution, it may be challenged before the administrative courts and the suspension of the measure may be requested.

Another significant modification introduced by Act 2/2009 that concerns the established fair compensation for private copying. The provision now establishes that natural or legal persons that are subject to the payment of this compensation may be eligible for its full refund under certain circumstances. In particular, if these persons act as end consumers, for exclusively professional purposes, provided that the certain copy is not made available to other private users; and if the devices or acquired material supports of reproduction are destined to exportation or deliveries within EU territories. The interested person has a time period of one year to exercise this refund action.

Likewise, it is also added to the Spanish Copyright Act the so-called resale right, which could cause some legal uncertainty as it was previously regulated by another independent law. Hence, Act 3/2008, of 23 December, on the resale right of an author of a work of art would be repealed by Act 2/2009. By this right, any author of certain works may receive a share in the price from any resale concerning their works following the first transfer.

Another amendment brought by the Spanish Copyright Act is the implementation of provisions of the Marrakech Treaty of 17 of July of 2013 into the Spanish Law, which entails a major improvement in order to ease the access of people with visual disability to published works. In particular, the works contained in libraries, files and museums may be converted to audible format and other digital formats. Additionally, it would be possible to exchange these works with other EU Member States that would have ratified the Marrakech Treaty.

Act 2/2019 also concerns directly collecting societies, which now would have to ensure the confidentiality of the information that they may have access to, as well as to observe the established provisions on antitrust/competition and data protection laws. Likewise, independent collecting societies shall publish on their website all available updated information on their repertoire. Moreover, in relation with the revenue of collecting societies managing copyrights of different categories, it is stated that these entities shall ensure traceability of the collecting process and the distribution of rights. Finally, it is also established that they must maintain the appropriate separation between the duties collected in relation to the origin or provenance of the collection.

To conclude, Act 2/2019 implements certain provisions of the already mentioned EU Directives into the Spanish Copyright Act that were already established by Royal Legislative Decree 2/2018. Nevertheless, as already mentioned, the previous regulation served as a provisional text before said Act could successfully complete the referred implementation and Royal Legislative Decree 2/2018 is now expressly repealed. The most significant amendment would probably be the empowerment of the Copyright Commission to force the closure of certain websites that would be infringing copyrights without requiring a judicial authorisation.