Home  ›  Spain

Spain

Submitted by seliabv on Mon, 16/02/2009 - 14:52

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? No
Following the European Directives the term has been extended to 70 years from author's death for literary and artistic works. There was a proposal by the European Commission to extend the term of protection of performers and interpreters rights to 95 years. The proposal was amended (from 95 to 70 years) and approved in 1st reading by the Parliament. The proposal is now waiting for the Council decision. See http://www.europarl.europa.eu/oeil/FindByProcnum.do?lang=2&procnum=COD/2008/0157.		 TRLPI Art 26-28 Art. 1 Directive 2006/116.
Has a court or tribunal ever limited the exercise of IP rights under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders?
CE Art 44, TRLPI Art 40, LDC15/2007
Has a court or tribunal ever limited the exercise of IP rights pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? Yes
Copyright is subject to the Spanish Constitution, which protects freedom of speech, information, honor and other human rights over IP rights which are not considered as such.		 CE Art. 20
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? No
Art 12 TRLPI protects databases that for their selection or arrangement constitute intellectual creations. There is also a "sui generis" right based on investment of money or time and which protects against extraction of content.		 Directive 96/9/EC, TRLPI Arts 12, 133
Are rights holders prohibited from excluding user rights under copyright law? In part
Copyright Act does not include any specific provision in the general exceptions and limitations section but, as statutory limitations, may not be override by provisions in contracts. As for software, according to the Copyright Act, the copyright owner cannot prohibit by contract a backup copy.		 TRLPI Art 34, TRLPI Art 100
Is computer software excluded from the scope of patentable subject matter? Yes

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? In part
There is not but, on November 2008 a judicial decision (Audiencia Provincial de Barcelona, Sección 15a, Sep. 17 2008, rec. 92/2006) stated that when assessing whether an infringement has taken place it would be necessary to take into consideration, the purpose and nature of the use, the nature of the work, the quantity and quality of the use and the effect in the potential market. It brought the "ius usus inoqui" from the Property law to Copyright law incorporate a kind of fair use doctrine. This decision has been appealed to the Supreme Court in January 2010.
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? In part
There is no specific provision but private copying is allowed. (Although there is a levy on this and TPM are permitted). 		TRLPI Arts 31.2, 161 and following
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? Yes
As to software, a backup copy is allowed. This cannot be restricted by contract. As in general, copying for private use is allowed when it is made from legal access; the copy is not used collectively nor has a lucrative purpose. In those cases, a levy must be paid.		 TRLPI Arts 31.2 and 100.2
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? Yes
Communication shall not be considered public where it takes place in a strictly domestic environment that is not an integral part of or connected to a dissemination network of any kind.		 TRLPI Art 20.2
For EducationMay students copy works for private research or study? In part
Reproduction is permitted only when made for non profit research or conservative purposes by public museums, libraries, sound, news or film archives, or cultural and scientific institutions.		 TRLPI Art 37.1
Does any such research and study provision cover distance and online education? In part
The communication or making available of works for research purposes is only permitted in a closed and internal network through special computer terminals located in public museums, libraries, sound, news or film archives, or cultural and scientific institutions. A reasonable remuneration should be paid in any case. For educational purposes, the reproduction is only permitted without authorization when it refers to small pieces of a work and it is for its use in the physical classroom by teachers in accredited institutions. See Report by the State Council 187/2005 at http://www.boe.es/aeboe/consultas/bases_datos_ce/doc.php?coleccion=ce&id=2005-187.		 TRLPI Art 37.3, 32.2
May translations of works be made for educational purposes? No
There is not exception to the right to transform a work. It always requires authorization by the author.		 Art 17, 21 and 32 TRLPI
May educators copy works for use in the classroom? In part
Teachers in accredited institutions may reproduce, distribute and communicate small pieces of works or isolated plastic or photographic works (excluding textbooks and university manuals) when those acts are only committed to illustrate educational activities with no commercial purposes and only when those works have already been disclosure and the name of the author and source of the work are included. This exception does not apply to acts of reproduction, distribution and public communication of compilation or grouping of work fragments or isolated plastic or figurative photography works. 		TRLPI Art 32.2
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? Yes
Those copies are excepted when they have no independent economic significance, are integral and essential part of a technological process and their sole purpose is to enable a transmission in a network between third parties by an intermediary, or a lawful use of a work.		 TRLPI Art 31.1
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? In part
Liability is limited for intermediaries under certain circumstances: transmission services where they have no control over the transmission (did not initiate nor were the selected recipient and did not modify the information), caching services where no control was exercised over the process (subject to expeditious removal of content upon gaining actual knowledge of information being removed at the source), hosting providers (on similar conditions), and linking and search engines providers (on similar conditions).		 LSSI Art 14-17
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? Yes
Up to the moment they did. After the approval of the telecoms Package in EU it is not clear, some understand that it would be possible deep package inspection and monitoring, as it encourages the collaboration between ISP and the content providers. Such an interpretation would be against the right to the secret of communications protected in the Spanish Constitution. 		Art 33.3 Universal Service Directive, art. 18.3 CE
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? No
Any transformation of a work, commercial or not commercial, requires authorization.		 TRLPI Arts 17 and 21
May computer software be reproduced or transformed for the purpose of reverse-engineering interoperable software? In part
By the lawful user or authorized person when information was not previously made available, and only of those parts necessary to provide interoperability.		 TRLPI Art 100.3 & 5
Is the incidental inclusion of a work in other material permitted? In part
Provided that the works concerned have already been disclosed, they are included by way of quotation or for analysis, comment or critical assessment. Further, only for teaching or research purposes (to the extent justified by the purpose of the inclusion) or in news reporting. The source and the name of the author of the work shall be stated.		 TRLPI Art 32 and Art 35
Is there are copyright exception for parody or satire? Yes
The parody of a disclosed work shall not be considered a transformation that requires the consent of the author, provided that it involves no risk of confusion with that work and does no harm to the original work or its author.		 TRLPI Art 39
By the pressIs there a copyright exception for the news of the day? Yes
Any work liable to be seen or heard in the reporting of current events may be reproduced, distributed and communicated to the public, but only to the extent justified by the informatory purpose. 		TRLPI Art 35
May copyright material be reproduced for the purposes of review and criticism? In part
Of already disclosed works, with sufficient acknowledgment and only for educational or research purposes.		 TRLPI Art 32
May quotations be used for any purpose? No
Only for educational and researching purposes.		 TRLPI Art 32.1
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? No
Law does not specify. It only says that copies can be made by public or incorporated in cultural and scientific institutions libraries, when it is for non profit and only for preservation or research purposes. The main interpretation is that it refers only to works within its catalogue		 TRLPI Art. 37.1
May librarians copy works for users for the purpose of research or study? No
Only for themselves. 		TRLPI Art 37.1
Are libraries allowed to make preservation or archive copies of materials in their collections? Yes
Reproduction of works for preservation purposes, without economical aim and made by public, or integrated in cultural and scientific institutions, libraries is permitted.		 TRLPI Art 37.1
Can lending libraries operate without incurring public lending rights fees to copyright owners?
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? In part
Only when not for profit, are directly related to the disability, are made though a mean adapted to the disability and limited to the extent required by the disability.		 TRLPI Art 31.bis.2
In public affairsAre laws excluded from copyright? Yes
TRLPI Art 13
Are other governmental works either excluded from copyright, or routinely shared under permissive licences? Yes
Acts, agreements, deliberations and rulings of public bodies, and official translations of all such texts.		 TRLPI Art 13
Are the results of publicly funded research required to be published under an open access licence? In part
Difusión en acceso abierto. 1. Los agentes públicos del Sistema Español de Ciencia, Tecnología e Innovación impulsarán el desarrollo de repositorios, propios o compartidos, de acceso abierto a las publicaciones de su personal de investigación, y establecerán sistemas que permitan conectarlos con iniciativas similares de ámbito nacional e internacional. 2. El personal de investigación cuya actividad investigadora esté financiada mayoritariamente con fondos de los Presupuestos Generales del Estado hará pública una versión digital de la versión final de los contenidos que le hayan sido aceptados para publicación en publicaciones de investigación seriadas o periódicas, tan pronto como resulte posible, pero no más tarde de doce meses después de la fecha oficial de publicación. 3. La versión electrónica se hará pública en repositorios de acceso abierto reconocidos en el campo de conocimiento en el que se ha desarrollado la investigación, o en repositorios institucionales de acceso abierto. 4. La versión electrónica pública podrá ser empleada por las Administraciones Públicas en sus procesos de evaluación. 5. El Ministerio de Ciencia e Innovación facilitará el acceso centralizado a los repositorios, y su conexión con iniciativas similares nacionales e internacionales. 6. Lo anterior se entiende sin perjuicio de los acuerdos en virtud de los cuales se hayan podido atribuir o transferir a terceros los derechos sobre las publicaciones, y no será de aplicación cuando los derechos sobre los resultados de la actividad de investigación, desarrollo e innovación sean susceptibles de protección. 		Art 37 Act 14/2011

Freedoms to share and transfer

Do copyright owners have the right to release their works to the public domain, without any limitation on how those works may be used? In part
Law does not say anything. The author has a right to demand recognition of his authorship 		TRLPI Art 41
Can public domain works be used without the need for any payment or registration of the use? Yes
Does the law make special provision for the legal use of orphaned works? No
There is not specific provision. Copyright over works disclosed anonymously shall accrue to the person who reveals them.		 Art. 6
Is parallel importation of copyright works permitted? No
As member of the EU, regional exhaustion applies. So, parallel importation is allowed inside the EU but not from third countries. 		TRLPI Art 19.2, CP Arts 270.2 and 274.2
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? In part
There is no mention of open software within copyright law but the Act 11/2007 about Electronic Access to Public Services by citizens (LAECSP)) recognizes the technology neutrality principle in its art. 4.i; stating that the Public administrations will use open standards. There is also a Governmental Public Foundation (Cenatic, created by the same act) to promote the use of open source software. There is a Council on e-government within the Public Administration Ministry which in 2005, elaborated a Recommendation about the use of Free and open Software within the Public Administration http://www.csae.map.es/csi/pg5s44.htm. The Decree 72/2003 Junta de Andalucía specifies the use of free software by the educative system. There is a Public Funded Program, Escuela (School) 2.0, to provide students from 10 to 13 years, teachers and schools with computers and digital blackboards in 2010. Most of the Autonomous Communities (except for Andalucia and Extremadura, which will use exclusively open software) have decided to implement a dual operating system ("dual boot"), leaving in hands of teachers the decision about using proprietary or free software. Most of Autonomous Regions, (lead by Extremadura, where the use of open software is promoted and even regulated and used in Civil Services) have developed programs based on free software. See http://www.cenatic.es.		 Art 4.i Act 56/2007, Decree 72/2003 Junta de Andalucía
Are there national programmes or policies that specify or promote the use of open document formats? In part
University and Public libraries have adopted open document formats even though proprietary formats are still mainly used. See http://oca.usal.es/estandares/documentos/estandares_en_universidades.pdf.

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? The maximum penalty is 4 years of prison, 24 month's fine (minimum 2€, max. 400 € per day) and 5 years of special disqualification. CP Art 271
What is the maximum penalty for copyright infringement for a corporation? There is no distinction between individuals and corporations. CP Art 271
Is innocent infringement of IP treated differently by the law? Yes
Only commercial use is criminalized. Personal use may be a civil infringement and cause civil liability but it is not a criminal infringement.		 Arts. 270 and ff CP
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? No
The manufacture/distribution of devices "mainly/specifically" created to circumvent TPM is forbidden, independently of the use. 		Art 160 TRLPI Art. 270 CP
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? Yes
It is forbidden the manufacture, distribution and possession of devices which are mainly intended to circumvent TPM. In any case right holders would have to provide access to works protected with TPM in cases of art. 160 TRLPI: (in cases of exceptions and limitations).		 CP Art 270 and TRLPI Art 160
Does national copyright or consumer protection law require that the effect of TPMs distributed with copyright works be disclosed to consumers? No
There is no provision about disclosure of TPM but copyright holders have to facilitate access to works protected by TPM to beneficiaries of limitations of copyright.		 Art. 161 TRLPI
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds?
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? In part
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? Yes
In any case when made for commercial or industrial uses.		 TRLPI Art. 274
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? No
The indemnification shall include the loss suffered plus the profit she has not obtained because of the infringement. To set the indemnification, the aggrieved party may choose between "negative economical consequences" (including lost profits plus benefits the infringer has obtained), and compensation that the aggrieved party would have obtained in case the infringer would have requested authorization. In any case, also moral damages when applicable. Moral prejudice shall afford entitlement to indemnification even where there is no evidence of economic prejudice. The amount of the indemnification shall be determined according to the circumstances of the infringement, the seriousness of the harm done and the extent of unlawful dissemination of the work. 		TRLPI Art 140
Is there provision to penalise the wrongful allegation of copyright infringement? In part
There are general provisions penalizing starting/responding a Court Case when is a knowingly wrongful allegation. That party will have to pay judicial costs.		 Art 394 ff LEC
Is there provision to penalise the obstruction of consumers' exercise of user rights?
Does the patent system allow for pre-grant opposition? Yes

Recent or upcoming changes

Creacion de la comision

Aprobacion del Regalmento

Sentencia Pablo soto

 

Summary of position

2009 has been a year of multiple changes and proposal in Copyright regulation.

Spain, which will chair the EU Presidency during the first semester of 2010, submitted at the end of the year, a draft bill on Sustainable Economy that includes in its final provision the competence of the copyright Commission, an administrative authority dependent on the Culture Government Department to decide on the restriction and blocking of websites to enforce copyright without a previous judicial decision. The provision puts at the same level the protection of public interests as personal dignity and copyrights. It also contains an obligation for service providers to facilitate data about information society service providers which have allegedly infringe copyrights for reporting to the Commission.

In July, a Commission in the Parliament was named to carry out a revision of the recently reformed copyright Act. According to the mandate in the act creating the Commission, its aim is to delimitate the competence between the Central government and the Autonomous regions and bring into consideration the own aspects of the Spanish reality out of the scope of the European and International legislative obligations. It also refers to the creation of arbitration bodies and the need to protect creators before the digital and technology evolution.

The government has also created an inter-ministerial Commission with representatives of almost all the government departments to develop a report and create a proposal of action plan to fight copyright infringements through websites in the Internet. The provision creating the Commission, although states that it would look for a fair balance of interests, only mentions the content industry and the information technology service providers among the sectors to be consulted, forgetting users and consumers.

The government has opted for an administrative procedure to decide on a civil question, making prevail the word of the person who claims to be the copyright holder over the alleged infringer and by avoiding the requirements and guarantees protecting users’ privacy within the data protection and data retentions laws. The only advantages are for the alleged copyrightholder who will not need to pay a civil procedure, will save asking for injunction and paying bonds and will have access to personal data which would not be able to access without using illegal procedures.

The “canon” (the levy charged on media and equipment) has been contested before the European Court as a preliminary ruling and its pending on the decision: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:019:0012:0013:En:PDF.

In those sectors where the industry has not so many economic interests some developments in favor of access to knowledge have been made. The Science and Innovation Ministry presented a draft Act which includes the obligation to provide open access to research made with public funds.

There are several repositories with open access materials developed and supported with public funds. Open software and interoperable standards are recognized by law for the establishment of the E-government, although the implementation is not being as fast as it should and the governments (central and of the Autonomous regions) are still spending thousands of Euros in purchasing licenses for proprietary systems. It is also necessary to invest more in training civil servants in the use of open software.

There are a lot of open fronts which may mean an opportunity to rebalance culture and knowledge, considered not only as economy values but also as social goods.

Creative Commons license icon
This work is licensed under a Attribution Share Alike Creative Commons license