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Spain

Mon, 16/02/2009 - 14:52 — seliabv

Legal background

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration 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.
Must a work be fixed in some material form before copyright attaches? YES
Ideas are not protected but the author's rights are independent of the ownership of the physical object in which the creation is embodied "The subject matter of intellectual property shall be all original literary, artistic or scientific creations expressed in any manner or medium, whether tangible or intangible, that is known at present or may be invented in the future".		 TRLPI Art 3 and 10.1
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power? LIMITED
There is not specific provision on copyrights in the competition law, but general provisions would apply. Art. 44 of the Spanish Constitution contains an obligation for public authorities to guarantee access to culture. Public authorities may ask Courts the release of a work when, after the death of its author, the family denies its disclosure in a manner contrary to the right of access to culture. 		CE Art 44, TRLPI Art 40, Act 15/2007
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? LIMITED
Copyright is subject to the Spanish Constitution, which protects freedom of speech.		 CE Art. 20
Does the compilation of a database of non-original material fall outside the scope of copyright? 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
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them? LIMITED
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

Freedoms to access and use

By Home UsersIs there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria? LIMITED
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.
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? LIMITED
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
Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy? YES
Reproduction but not sharing or other uses, for private use is allowed. There is a levy on all the formats and mediums for private copies. Equipment is burden with a levy for private copy independently of whether it is used to reproduce copyright works or not. i.e a CD Is burden with a levy (whether it is used to copy data or content). In return for paying a fee, management societies provide licenses for the use of their libraries.		 TRLPI Art 25
For EducationIs reproduction permitted for the purposes of research or study? LIMITED
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? LIMITED
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 works be reproduced and published by educational institutions in connection with systematic instructional activities? LIMITED
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
OnlineIs hyperlinking to a Web site allowed without permission of the site's owner? YES
Linking is not a reproduction, distribution or communication act, therefore does not require authorization. Nevertheless, there is discussion about deep linking. A different question is the liability of the ISP for linking to unlawful content. ISP will be liable to lead to unlawful content in cases where they have effective knowledge and in those cases, they do not take action to remove or disable the link. 		Arts 14 and ff LSSI
Are 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
Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances? LIMITED
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
Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material? 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
Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? YES
According to the Promusicae decision by the European Court interpreting the data retention Directive, the obligation in the Directive to disclosure does not apply in civil cases and in criminal cases it does only in serious crimes. According to the Spanish Criminal Code IP infringements do not have that status. This maybe changes with the Draft bill in Sustainable Economy. This includes a proposal to modify the Copyright Act and the LSSI including an obligation for ISP to provide, when required by an administrative authority (the Section 2 of the copyright Commission created by this proposal and dependent of the Ministry of Culture) the data necessary to identify the responsible of the Information society service provider allegedly infringer to make her appear at the proceeding. This article refers to Information society service providers not to users and individuals.		 DRA Art 1, Promusicae decision
By content creatorsCan copyright works be non-commercially remixed or mashed up into new works? NO
Any transformation of a work, commercial or not commercial, requires authorization.		 TRLPI Arts 17 and 21
May computer software be reverse engineered for the purpose of creating interoperable software? LIMITED
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? LIMITED
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
Do creators who license their work retain the moral right of attribution? YES
Moral rights are unrenounceable and inalienable. 		TRLPI Art 14
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? LIMITED
Of already disclosed works, with sufficient acknowledgment and only for educational or research purposes.		 TRLPI Art 32
May political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? YES
Parliamentary and public corporation speeches can be used for any purpose. Lectures, addresses, court pleadings and other works of the same character that have been delivered in public may also be reproduced, distributed and communicated, provided that such uses are made public for the sole purpose of informing on current events.		 TRLPI Art 33.2
May quotations be used for any purpose? NO
Only for educational and researching purposes.		 TRLPI Art 32.1
By LibrariesMay libraries copy works that 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 libraries 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
In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)? NO
Copyright holders shall provide libraries with appropriate means to allow the use of protected works according to their aim.		 Art, 161.f
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? LIMITED
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 excluded from copyright? YES
Acts, agreements, deliberations and rulings of public bodies, and official translations of all such texts.		 TRLPI Art 13
Is there a copyright exception for use of material in judicial proceedings? YES
Authorization by the author is not required.		 TRLPI Art 31 bis.1
Are the results of publicly funded research required to be published under an open access license? NO
There is not specific provision up to the moment but there is a proposal of Law directed to it.

Freedoms to share and transfer

May copyright works be freely offered for commercial rental? NO
Rental is considered as a distribution act and therefore requires authorization by the author		 TRLPI Art 19
Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment? NO
Law does not say anything. The author has a right to demand recognition of his authorship.		 TRLPI Art 41
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain? NO
There is not specific provision. Copyright over works disclosed anonymously shall accrue to the person who reveals them.		 Art. 6
Is parallel importation 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 incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy? LIMITED
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 incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy? LIMITED
There is not mention of open access material in copyright law but there are some initiatives basically, in Universities and libraries. Also, the Draft bill on Science and Technology in its art Art 33.2 refers to open repositories and the publishing of a digital version of any work made with public funds no later than 6 months after the publication of the official version (see https://lcyt.fecyt.es/?page_id=354). 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 Science and Innovation,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 33.2 Research and Science Draft bill
Are there specifications or incentives in national law/policy for the use of open document formats? LIMITED
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
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge? 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 purposes that would not infringe copyright? 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 permitted for any purpose that would not infringe copyright? 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 disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material? 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 the operations of copyright collectives subject to public oversight? YES
The Ministry of Culture has oversight of Copyright Collectives.		 TRLPI Art 159
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online? LIMITED
There is not official code of conduct but there are negotiations in course to set cooperation.
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 based on the loss sustained, rather than by 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? LIMITED
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

Conclusions

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 copyrighti 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 accessi to research made with public funds.

There are several repositories with open access materials developed and supported with public funds. Open softwarei 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.

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