On 2 November the Spanish Government approved Royal Decree-Law No. 24/2021, transposing, among others, Directive 2019/790 on copyright in the Digital Single Market (CDSM Directive).

The purpose behind this legislation is to open up opportunities for digital content to compete in a digital single market.

The following, among others, are some of the most notable changes:

  • The exception or limitation for illustration for teaching and scientific research has been expanded. In this regard, Article 68 recognizes that the requisite authorization from right holders shall not be necessary for use of their works for teaching purposes through digital means, provided that such use is made by the teaching staff of a formal educational establishment, by the staff of universities and research bodies, in a secure electronic environment (for example, a virtual classroom) and accompanied by an indication of the source, including the author’s name, where possible. Moreover, these acts shall be deemed to occur in the territory of Spain, even if the recipients are not in Spain.
  • Another of the most important changes is the obligation on the part of online content-sharing service providers to adopt appropriate measures to ensure protection for works. They shall be liable for unauthorized acts of communication to the public, unless they show:
    • that they have made best efforts to obtain an authorization and ensure the unavailability of the works.
    • that they have acted expeditiously, upon receipt of notice from the right holders, to remove the works or other subject matter, and prevent future uploads.
  • The right to fair and proportionate remuneration is recognized for authors and performers in relation to agreements for exploitation of their works, to redress the imbalances that exist. To this end, an obligation of transparency is established for the parties to whom authorizations have been granted or exploitation rights have been transferred, who must provide up to date information once a year on the exploitation of the work and the revenue generated and the remuneration due.
 

 

Other important amendments of the Intellectual Property Act introduced by the Royal Decree-Law include:

  • With regard to cases where, following conclusion of an agreement for transfer of rights, the remuneration initially agreed is disproportionately low compared to the total revenue derived from the work, an amendment is introduced to Article 47 of the Intellectual Property Act in relation to unfair remuneration, whereby the agreement may be revised.
  • A right of revocation is introduced in Article 48bis, whereby the author is granted the right to revoke the authorization or transfer of rights, or terminate the exclusivity of the contract, if the work is not being exploited.
  • The new wording of Article 58, which stipulates that by means of a publishing agreement, in which the author transfers the right of reproduction and distribution to the publisher, the publisher acquires the right to a share of the fair compensation provided for in Article 25.
  • The amendment of Article 32.2, eliminating the so-called “Canon AEDE” (mandatory and non-waivable collective management levy). This levy affected content search engines and aggregators, which had to pay the levy in favour of Spanish newspaper publishers. The new provision does not establish any formal arrangement regarding management of this right and right holders may negotiate authorizations individually or through a collective rights management organization.
  • Finally, through the inclusion of a new Article 129bis, press publishers and news agencies are afforded an exclusive right of reproduction and making available to the public with respect to the online use of their press publications by information society service providers.

Authors: Mabel Klimt, Javier Fernández-Lasquetty, Claudia Fernández y Clara Collado

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