Spain

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. Performers and interpreters rights have also extended to 70 years by the Directive 2011/77/EU of the European Parliament and of the Council of 27 September 2011 amending Directive 2006/116/EC on the term of protection of copyright and certain related rights. So, Spain, in the 2 following years, as a EU Member, will have to pass law transposing the Directive into the internal legislation.
TRLPI Art 26-28 Art. 1 Directive 2006/116. Art. Directive 2011/77/EU
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? Yes
In Spain, Collective Management entities decide unilaterally the royalties they apply. Even when negotiation is possible, they have the last word. The National Competence Commission (in charge of defence of competence in the Spanish market) has stated in some decisions (the last one, in December 2011) the abuse of dominant position of Collective Management Entities and set that royalties charged by them were abusive. Therefore a fine was imposed. There are still some procedures in course against management societies before the Commission. There is also a 2010 - Report on Collective Management of Intellectual Property Rights where the Commission conclude that the Spanish regulation leads to a monopolistic system where these entities have abused in several ocasions their dominant position by setting unfair and/or discriminatory fees and calls to a recasting of the system to comply with the EU internal market provisions. There are also Court decisions stating that royalties system set by the Collective management entities are void (for example royalties applied to video club).
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?
Can databases of non-original material be reproduced without infringing a copyright or sui generis database right? No
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, Arts 12, 133 TRLPI
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
Software is protected by Copyrights and It is excluded by the patent act.
Art. 95 and following TRLPI. Art. 4.4c LP

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. The Spanish Intellectual Property Act expressly states that the author’s rights are to be limited only “in cases this law provides.” Spain Copyright Law, Art. 17. 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. In those cases, the copyright holder has a right to fair compensation. The TRLPI sets a levy on the equipment devices and media suitable to copy. A decision by the TJEU on 2010 stated that such a provision was against the European Directive 2001/29. On december 2011, the new governemnt has removed that levy, and fair compensation for private copy will be charged to the General State Budget. Art 25 TRLPI need to be reformed to accomadate to the new provision. TPM is permitted to limit the number of copies.
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 the copyright holder has a right to fair compensation. The TRLPI sets a levy on the equipment devices and media suitable to copy. A decision by the TJEU on 2010 stated that such a provision was against the European Directive 2001/29. On december 2011, the new governemnt has removed that levy, and fair compensation for private copy will be charged to the General State Budget. Art 25 TRLPI need to be reformed to accomadate to the new provision. Right to compensation does not apply to software.
Art. 25, Arts 31.2 and 100.2 TRLPI 10 Additional Provision Royal Decree Law 20/2011, 31 december 2011
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
That would be against the right to privacy.
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
Computer software may be reproduced and transformed 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? No
In 2006, a Decision by the TJEU (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62005CJ0036:EN:PDF) penalized Spain for including an exception too wide to the obligation to pay a lending fee set in the Directive 92/100. After that, in 2007 Spain passed the Library, books and reading act which includes a fee for each book bought in a library. According to that Law, a regulation will set that fee, in the meanwhile it would be 0.20€. In spite of the time none regulation has been passed. Collective management entities claim that the lending fee is not been paid. There is a campaign followed by many libraries, some writers, city councils and Universities against the measure. http://noalprestamodepago.org/
Art. 37.2 and 20 Aditional provision TRLPI
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.
Art 31.bis.2 TRLPI
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
They were in the Science, Innovation and Technology Act draft. The final version has distorted the obligation as the requirement applies without prejudice to agreements where the rights have been transferred to third parties and will not apply when the results of the research, development and innovation are capable of protection.
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 says that works enter the public domain once economical rights expire . It does not consider the possibility to be released by the copyright owner. Copyrights involves personal and economical rights. Personal (moral) rights are inalienables but, even when there is not an official procedure, in practice author could renounce to exercise his economical rights.
TRLPI Art 41
Can public domain works be used without the need for any payment or registration of the use? Yes
Once rights fall under Public Domain can be used free, respecting moral rights.
Art. 41 TRLPI
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. There is a proposal of Directive in Europe to cover some uses of Orphan works.
Art. 6 TRLPI Proposal 2011/0136 (COD)
Is parallel importation of copyright works permitted? In part
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
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. Science, Innovation and Technology Law says taht public agents form the sector will promote open access repositories 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. Inside that program is Agrega 2 a program belonging to the Instituto de Tecnologias Educativas by the Education Ministry which content open educational resources. 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. There are also initiatives basically, in Universities and libraries. In Spain, Recolecta (http://recolecta.net/buscador/) is a joint initiative of the University Libraries network REBIUN and the Spanish Science and Technology Foundation (FECYT), dependent organisation on Ministry of Economy and competitivity with the aim of publishing in open access the research works made in the academic institutions and facilitate their use. Hispana is a public directory of digital collections by different institutions http://hispana.mcu.es/es/inicio/inicio.cmd There are similar initiatives in some autonomous communities as Madrid E-ciencia project http://www.madrimasd.org/informacionidi/e-ciencia/default.asp Catalunya: Recercat,. a cooperative repository of digital documents and it includes the research literature from universities and researching centers of Catalonia, like preprints, comunications in congress, research reports, working papers, university final projects, technical report http://www.recercat.net/.
Art 4.i Act 56/2007, Decree 72/2003 Junta de Andalucía Sciencie, Technology and Innovation Act 14/2011
Are there national programmes or policies that specify or promote the use of open document formats? In part
the Council of the Government of the Region of Extremadura has adopted the mandatory use of ODF for administrative documents. see http://www.linex.org/mocion_consejo_gobierno.pdf The E-administration web portal of the Spanish government contents recommendations about the use of open formats in the public administrations. seehttp://administracionelectronica.gob.es/?_nfpb=true&_pageLabel=P803324061272301226576&langPae=es&detalleLista=PAE_12988842211143179 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 are not criminal penalties for corporations and there is not administrative penalties for copyright infringement. CP Art 271
Is innocent infringement of IP treated differently by the law? In part
Internet Service providers are considered responsible once they have effective knowloedge of the infrigement. There is not specific provision about innocent infringement but following the general Theory, It would be the infringer the person in charge to prove that he did not know he was infinging copyright and that he acted diligently to find it out. In that hypothetical case, the Court might reduce the amount of damages. About respobsibility See: http://www.eleconomista.es/imag/_v3/ecoley/documentos/sentencia-telefonicaa.pdf
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? In part
The permission depends on the reason why the devices where created more than the uses that it allows. 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 effect of TPM at the LPI but at the protection of consumers act there is a general provision stating that consumers have a right to be correctly informed about the different goods and services and the education and divulgation to faciltate the knowledge about their adecuate use, consumption or enjoyment. Information about the features must be provided in the label See: Llanos Carbedo; "Los consumidores y las medidas tecnológicas incorporadas en soportes digitales" at : "Límites a la propiedad intelectual y nuevas tecnologías: incidencias por la ley 23/2006, de 7 de julio " coord. por Juan Antonio Moreno Martínez, 2008, ISBN 978-84-9849-346-7 , pgs. 63-118
Art 8.d, 17 and 18 TRLGCU
Are there cases in which the availability of injunctive relief for IP infringement is limited by the law on public policy grounds? No
Art 141 TRLPI
Does the law protect a user's Internet access from being suspended for alleged copyright infringement, except after a hearing in court? Yes
With the new regulation, Service providers could be suspended their right to access the Internet with anadministrative decision, but that possibility does nor affect to individual users
Royal Decree 1889/2011,
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? No
Counterfeiting is sanctined 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?
consumers could access to Court to request the nullity of any abusive clause in a contract that obstructs the exercise of users rights
Art.87.6 TRLGCU
Does the patent system allow for pre-grant opposition? Yes
art 32 and 36 LP

Recent or upcoming changes

There have been lots of changes at the Spanish IP and more are to come.

Legislation

After two years, on March 2011 the Sustainable Economy Act was passed, introducing in the Spanish legislation the possibility to suspend the activity of IS Providers for infringing copyrights and to request information to ISP to identify  the alleged infringer. The Act left to a posterior regulation its implementation. Such regulation was passed by the new government on December 2011 as one of their first movements. (http://www.boe.es/boe/dias/2011/12/31/pdfs/BOE-A-2011-20652.pdf)

The new government has also removed from the LPI, the digital levy on private copy, (already declared  opposed to European law by a TJEU decision (http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d2dc30dbf5a06e1732594949a20497268a4c9895.e34KaxiLc3qMb40Rch0SaxqTbNb0?text=&docid=82644&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=276496).

There are proposals by different groups in the Spanish Parliament of a new IP law aimed to include free licenses, to establish a new management of rights system.

http://www.congreso.es/portal/page/portal/Congreso/Congreso/Iniciativas?_piref73_2148295_73_1335437_1335437.next_page=/wc/enviarCgiBuscadorIniciativas

Collective entities

During 2011, one of the main collective entities has been prosecuted on fraud and misappropriation charges and 2 others have been found to abuse their dominant position in the fixation of remuneration for the use of their repertory by the Competence Commission.

Court decisions

Also in 2011, the decision in Pablo Soto vs Promusicae case was passed. This procedure between the four major record labels and one of the P2P software developers pioneers, ended with a discharge decision in its first instance. The decision considers that making available software to interchange files is neither a copyright infringement nor unfair competition. According to the decision, P2P is a neutral technology and in any case, facilitating a copyright infringement is not an infringement itself according to Spanish law. The decision has been appealed.

Most of Court decisions consider that linking sites do not infringe copyrights, since there is not a direct infringement (there is not reproduction nor communication or distribution act) and facilitating is not a illicit activity under Spanish law.

EU.

Given that Spain belongs to the EU, and decisions and Directives passed there, will affect the Spanish developments in IP, some decisions are also referred in here:

-In EU the Directive 2011/77 extended the term of protection for the “certain related rights” distinguishing between sound recordings and of fixations of performances incorporated into sound recordings, whose term is extended to 70 years and broadcasts and fixations of performances otherwise than in sound recordings, which remains subject to the previous 50-year term. This Directive will have to be passed to Spanish legislation in the 2 following years.

-In January 2012 The EU and Spain signed the ACTA agreement which needs to be ratified by the European Parliament and transposition to the national laws.

-Also in Europe, the TJEU stated, in some prejudicial questions raised by collective entities, the inexistence of a general obligation for ISP to monitor stored or transmitted  information in their servers or networks according to EU Directives and fundamental rights.

http://curia.europa.eu/juris/document/document.jsf?text=&docid=119512&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1029415

http://curia.europa.eu/juris/document/document.jsf?text=&docid=115202&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=1086125

 

 

Summary of position

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,- now also extended to certain related rights-) 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 users and society, when the reality is that the exploitation windows terms have been reduced.

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

Those changes, even when, introducing an exception for people with disabilities, have also result in a reduction of the framework of exceptions and limitations for libraries, research and education.

Freedom to share and transfer. Administration and enforcement.

Copies for personal use are permitted and there is a right to fair compensation in favor of the copyrights owner. Up to the moment, that right meant the payment, by users, of levies which taxed media and hardware, even in cases where those media were not used to copy protected material (i.e. CDs used to copy data); for that reason the “canon” has been suppressed and will be paid (provisionally and sine die) with charge to National budget. (which in fact means that now we all pay, using or not using devices or using or not using copyrighted material)  at the same time, copyright owners are allowed (with limits) to use Digital Rights Management that consumers are prohibited to circumvent.

According to the criminal code P2P file sharing is not a criminal offense, given that there is not commercial intent. The Attorney General and Court decisions have expressed in that sense.

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 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” (up to now the understanding was that only Courts have that consideration).

The last consequence of lobby pressures is the introduction of an obligation for service providers to facilitate data about information society service providers which have allegedly infringe copyrights for reporting to the Commission. The Act including this obligation to report, has put on the same level public interests, as protection of infancy and youth, and Intellectual Property, a private economical interest.

The new act (LES) has also created an administrative body, the CPI section II, to decide about copyright infringement. The Section II is empowered to decide on removing content or suspending the service of ISP which, according to the Commission, are infringing copyrights. (That decision will be reviewed by a judicial administrative Court but only on proceeding issues). The process gives the ISP the opportunity to voluntarily remove the content, and doing so, according to the regulation implementing the LES, means recognizing the copyright infringement. This Commission will start to work on March 2012.

In those sectors where the industry has not so many economic interests some developments in favor of access to knowledge are seen.  There are several repositories with open access materials developed and supported with public funds and Open software and interoperable standards are recognized by law for the establishment of the E-government.

In general terms, European regulation and its Spanish implementation, has allowed copyright holders' interests to prevail over consumer rights. That tendency is the consequence of Copyright owners lobby and US government pressure on Spanish´s, that at least, has stayed up by not imposing measures against individual users as it has happened in other European countries (although their rights and freedoms have been reduced).

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