Spain

[ES] Amendment to the Spanish Intellectual Property Law

IRIS 2019-5:1/12

Enric Enrich

Enrich Advocats, Barcelona

The Spanish BOE (Official Gazette) published Law 2/2019 of March 1, amending the Intellectual Property Law and implementing the following EU directives into Spanish law: EU Directive 2014/26/ on the collective management of copyright and related rights, and the granting of multi-territorial licences of rights in musical works, and EU Directive 2017/1564 on certain permitted uses of certain works protected by copyright and related rights and other benefits in favour of blind people, people with visual impairment or people with other difficulties in accessing printed texts.

The criteria followed in the transposition have been based, primarily, on conformity with the text of the directives and, as far as possible, on the principle of a minimum reform of the current regulations.

The main novelty introduced by this regulation affects the collective management organisations (CMOs), with the introduction of a series of measures to strengthen their transparency (the obligation to prepare an annual transparency report is established, in parallel with the annual accounts), governance and management of intellectual property (IP) rights in order to improve the control (an internal control body is introduced) and accountability of the governing and representation bodies of the said entities. The law sets measures (including the setting of distribution ceilings) in order to prevent certain works or services from receiving disproportionate amounts in relation to the commercial or audience returns of their exploitation, which was a corrupt practice by a certain Spanish CMO in the recent past.

New developments in the collection of rights have also been introduced; the sanctioning regime has been modified to clarify the division of powers, specify the maximum delays to resolve administrative sanctioning procedures for the commission of infractions, and the mechanism of exchange of information between European authorities.

The new law incorporates specific rules applicable to the management entities of other states that operate within Spain; to entities dependent on a management entity; and it also regulates the new “independent management operators”, which are entities that are already active in Spain, breaking the traditional monopoly and managing IP rights, but who, prior to this reform, were operating outside the legal framework and the supervisory powers of public administrations.

In addition, multi-territorial online music licences are to be regulated for the first time.

The management entities are obliged to establish general, simple and clear rates that determine the remuneration required for the use of their repertoire.

The new text also includes measures to combat piracy, including the possibility of closing websites that violate IP rights in a serious and repeated manner without the need for judicial authorisation.

Likewise, the regulation of the use of works and services without the authorisation of the rightsowner  in favour of people with visual disabilities or with other difficulties accessing the printed texts, includes audio and digital formats, in order to improve the availability and exchange within the internal market of certain works and protected features in an accessible format.

Finally, the new law includes a precise regulation of the resale right (or “droit de suite”), which will be made effective through the management entities and, as a novelty, will be generated from a resale price of EUR 800. The protection of this right has been proposed to Spanish authors, national authors from other EU member states, as well as third-country nationals with habitual residence in Spain.