The private copying exception under Spanish law

Written on 16 Oct 2015

The law on the private use of copyright-protected works has been controversial in Spain following the introduction of the payment of a “fair compensation” to the author for private copies made by individuals. The Spanish law provisions on this matter were greatly amended in November 2014, with the Law 21/2014, of 4 November, amending the consolidated text of the Copyright Act, approved by the Royal Legislative Decree 1/1996, of 12 April, and the Civil Procedure Act 1/2000, of 7 January (“Law 21/2014”). Law 21/2014 introduced, among other provisions, a compensation regime for private copying. Law 21/2014 also modified the limits of the private copy exception, clarifying and harmonizing the provision currently in force on the matter (“Spanish Copyright Act”), in a way similar to other EU Member States. Nevertheless, some grey areas are yet to be clarified by the relevant authorities.

The Spanish Copyright Act

According to the Spanish Copyright Act, the reproduction of copyright-protected work made by any means will be considered as lawful, provided that: the reproduction is made without the assistance of any third party, the work reproduced has already been published, and certain additional conditions are also met. Hence, this private copy exception is not configured as a right in itself, but rather as a limitation to the right of reproduction held by the right holder of copyright-protected works.

Under the Spanish law, the private copy exception is enabled only for natural persons and their private use of those private copies. Therefore this exception may not be relied upon by any other type of entity or legal person, even if they intend no direct or indirect commercial use.

The additional conditions to be met are the following:

  • Where the copyright protected work is contained in a physical medium, that medium must have been acquired through a commercial purchase; or
  • Where it has been accessed through a legitimate act of communication, the reproduction must not have been obtained by unauthorised fixation of the work in a public space.

The private copy exception regime expressly excludes some types of works from the material scope of the exception:

  • works that are made available to the public by wired or wireless systems and accessible by the user at anytime from anywhere;
  • works made available through electronic databases; or
  • works made available to the public through software.

Therefore, if the copyright-protected work is available at individuals’ convenience, they may not shelter under this exception to make copies of its content. Compared to other jurisdictions, the Spanish Copyright Act can be interpreted as allowing both “time-shifting” and “format shifting” practices under the regime of the private copy exception, so long as the reproduction comes from a legitimate act of communication.

Another essential requirement for individuals to lawfully record private copies is that those copies’ content is not publicly communicated or shared. Unlike the national laws of other EU Member States, the approach taken by Spanish courts in this sense is that the private copy exception permits the use of the reproduction of the copyright-protected content within a household environment, which includes all the family members. Accepting that this would lead to revenues being lost by rightsholders, the Spanish legislature established a “fair compensation” regime for private copying, introduced by Law 21/2014.

Reproduction of the copied content in public places or uploading the content onto Internet platforms, however, remains unlawful under Spanish law.

Fair compensation regime

The fair compensation scheme in Spain, unlike other EU Member States, is charged to the State Budget and aimed at compensating the loss of profits by the copyright holder due to the legal limit of the private copy. This regime was introduced as a transitional measure by the Royal Decree 1657/2012, and it was made permanent by Law 21/2014. However, the regime has not been universally popular. Certain entities in charge of the management of copyright enforcement have expressed a great deal of criticism, arguing that the amounts established are not proportionate to the actual damage suffered by the right holders.

With other jurisdictions such as the UK having had national legislation quashed for not complying with EU law, the Spanish Supreme Court raised a preliminary ruling to the European Court of Justice in September 2014. The Court questioned whether a previous Royal Decree, 20/2011, which eliminated the previous compensation method whereby the fair compensation was charged on the manufacturers, complies with the European Directive 2001/29/EC. As yet, no resolution has been given by the European Court of Justice (ECJ) on the matter. Thus, we await a decision as to the lawfulness (in the light of the European legislation) of a compensation mechanism that has already been modified by the Spanish legislator, by changing the subject who will take the burden of paying the compensation.

With the EU landscape fractured when it comes to private copying, if the ECJ finds the Spanish approach to be in line with EU law, it will be interesting to see whether other Member States follow suit.