On 1 March 2012, the Royal Decree 1889/2011 came into force. It replaces the competences that were granted to the Spanish Copyright Commission by the Legislative Act (Ley 2/2011 de Economía Sostenible), which was introduced by the Spanish Parliament on March 2011.
The Royal Decree aims at establishing the current legal regime and functions of the Copyright Commission. One of its most relevant aspects is that it sets in motion a new Section of the Commission, Section Two, created with the purpose of safeguarding copyrighted materials available on the Internet. In this regard, Section Two is empowered to order (i) the removal of the infringing contents from the Internet or even (ii) the temporary closure of the websites that infringe a copyright by reproducing it or facilitating its access to the public.
This implies that an Administrative Body can, from now on, order speedy measures against an information service provider. Nonetheless, the enforcement of these measures, in absence of a voluntary action by the service provider, is subject to prior judicial authorisation.
Initiation of the procedure
Pursuant to the Royal Decree, those eligible to start the procedure before Section Two of the Commission are: the copyright holder who believe its rights have been infringed; the physical or legal person in charge of the exploitation of these rights; or the legal representative of these holders. The Royal Decree further stipulates that the procedure shall be initiated against any service provider who is allegedly infringing a copyrighted work by reproducing it or facilitating its access.
The action must be filed together with all the evidence. To this respect, the applicant must provide the Commission with evidence of the work that has been allegedly infringed, a credential proving ownership, a document showing that the service provider is infringing the owners rights, a statement declaring that the owner has not give permission to the service provider to exploit this right, evidence showing that the service provider is pursuing an economic activity or has caused or is likely to cause the owner a financial loss, the contact details of the service provider, and any other document that might be relevant for the purposes of the proceeding.
Upon request, Section Two studies the evidence submitted by the applicant and intervenes only those cases where it considers that the alleged liable provider is (i) directly or indirectly pursuing an economic activity or (ii) has caused or is likely to cause any financial loss to the copyright holder.
In those cases where the service provider that is allegedly infringing a copyright is not sufficiently identified, Section Two is entitled, subject to a judicial authorisation, to request the intermediary service providers the necessary data to contact the service provider. In this regard, the intermediary service provider is obliged to provide the Commission with the requested data within a period of two days as of the date it receives notice of the judicial authorization issued by the administrative courts.
Duration of the procedure
Once the Commission decides to initiate proceedings, it issues an order which is sent to both, the service provider and the intermediary service provider. On its order, the Commission identifies the exact service provider against who the proceeding is addressed and requests it to (i) voluntarily remove the copyrighted materials or to (iii) file a response within a period of two days as of receipt of the notice of commencement of the proceeding.
In absence of a removal of the materials, independently of whether the service provider has filed a response, the Commission analyses the evidence and, within a period of two days, grants an assessment of infringement that is notified to the parties who can file their conclusions during the following five days as of this notification.
If the parties do not submit their conclusions within the specified time, Section Two issues a decision declaring whether the copyright has been infringed and will order, the removal of the infringing contents or the temporary closure of the websites that are violating the intellectual property right. Likewise, in those cases where the claim succeeds, the Commission orders a suspension measure against the intermediary service provider.
The Commission shall issue its decision within a three month period. The absence of resolution within this timeframe has minimal effect with regard to the application. It is not possible to file an administrative appeal against the decision issued by the Commission. Notwithstanding, this is to be understood without prejudice to the possibility to file a legal action.
Enforcement of the administrative order
The decision issued by Section Two of the Commission is deemed to be voluntarily enforced by the service provider within a period of one day as of the date the decision is served. The voluntary withdrawal of the contents terminates the procedure. In absence of such voluntary compliance, the enforcement of the decision requires prior judicial authorisation. In this regard, the Commission refers the case to the administrative courts for them to finally confirm or deny the enforcement of the measures ordered by the Commission.
The court resolution is binding for the parties and therefore, where estimated, the service provider is obliged to cease its infringing activities. In the same way, when the courts confirm the Commission’s decision, and the intermediary service provider would not have voluntarily suspended its services with regard to the infringing materials, it will also be obliged to obey the suspension measure within the 72 hours as of receipt of the court order.
This suspension measure ceases when (i) the intermediary service provider shows evidence to Section Two demonstrating that the situation has been restored and, hence, it is complying with the law or, in any case, (ii) after one year as of the day the suspension measure came into force.
Section Two of the Commission is expected to receive many claims but it remains to be seen how the criterion set forth in this field of law will be applied in the framework of its procedures. This becomes especially interesting, considering that the Spanish courts have not taken a consistent approach in relation to relevant questions such as, for example, the liability of a service provider that provides access to a copyrighted material by placing a link to a third party website. In this regard, for instance, there are two contradictory jurisdictional court tendencies.
The first trend determines that placing a link to a third party website on one’s own website does not amount to a copyright infringement. This view has been followed by both civil and criminal courts whereby the judges have understood that the mere act of “linking” does not constitute neither an act of reproduction nor an act of communication to the public [Court of Appeal of Barcelona in cases “elrincondejesus” (AC 2011\\86- 24 February 2011) and “índice-web” (AC 2011\\1505- 7 July 2011)] and, similarly, does not amount to an infringement of article 270.1 of the Spanish criminal code (1) [Court of Appeal of Madrid in the “Sharamula” case (ARP 2008\\498- 11 September 2008) and Court of Appeal of Álava in the “Cinetube” case (JUR 2012\\57650- 3 February 2012)].
On the other hand, the second trend shows that the act of “linking” can be considered an act of communication to the public and thus, an infringement of article 270.1 of the Spanish criminal code [Court of Appeal of Valencia in the “divxonline” case (ARP 2011\\257- 26 October 2010), Court of Appeal of Vizacaya in the “fenixp2p” case (ARP 2011\\1213- 27 September 2011), or Court of Appeal Murcia in the “elitedivx” case (JUR 2009\\406651- 16 September 2009)].
(1): “Shall be punished with imprisonment from six months to two years and a fine of 12 to 24 months who, for profit to the detriment of the third, reproduces, plagiarizes, distributes or publicly communicates, in whole or in part, a literary, artistic or scientific work or transformation, artistic performance fixed in any medium or communicated by any means, without the consent of the holders of intellectual property rights thereto or its assignees.” Article 270.1, Spanish Criminal Code, Law 10/1995, 23 November 1995.