Spain

Term and scope

The Spanish IP law is the result of the implementation of the EU Directives in our legislation. As a consequence, the term (70 years after author's death) and scope of the economic rights have been extended, breaking the balance between the incentives for creation and the right to access to culture and knowledge, in favor of creators and in detriment of society.

The inclusion of a technological concept of reproduction and communication rights instead of a normative one, together with a narrow limitations and exceptions system, carries the risk of creating an almost absolute right, subverting the original objective of the copyright system.

Exceptions and limitations

The latest modification of Spanish law implementing the Digital Copyright Directive (although also introducing a exception for people with disabilities) has reduced the framework of exceptions and limitations for libraries, research and education.

Freedom to share and transfer. Administration and enforcement.

Consumers' rights to make copies for personal use are conditioned on the payment of levies which tax media and hardware, even in cases where those media are not used to copy protected material (i.e. CDs used to copy data); at the same time, copyright owners are allowed (with limits) to use Digital Rights Management that consumers are prohibited to circumvent.

Although there is no specific provision about P2P systems, in 2006, the Attorney General issued a Circular that explains that according to the criminal code P2P cannot be considered as a criminal offense unless such acts are for commercial intent. This position has been confirmed in Court by several cases, the most famous the Sharemula case. Sharemula ruling clarifies that providing links does not amount a communication to the public act and as link provider, ISP limitations apply.

In civil cases against users, in January 2008 the European Court in the Promusicae vs Telefonica case, a prejudicial query by a Spanish judge, ruled that ISPs have no obligation to disclose personal data of users in civil actions. The Data retention law, besides that, only allows retention and disclosure of personal data for serious crimes, and IP offenses are not considered as such. Even so, IP crimes carry the same fines as sexual offenses or corruption of minors, and the manufacturing of TPMs the same as manufacturing of fire arms.

The Spanish regulation implementing the ISP liability limitations has taken into account the general rules of secondary liability and it requires a notification by the “competent authority” (the current understanding is that only Courts have that consideration) to block or remove content (although it also permits voluntary agreements which may result in infringements of consumer rights to due process).

In general terms, European regulation and its Spanish implementation, has allowed copyright holders' interests to prevail over consumer rights. That tendency is still seen in the latest European proposals such as the Telecom package and the extension of term of protection for performers and phonogram producers.  Having said that, on balance the Spanish law is amongst the more favourable to consumers within Western Europe.