Amendments to the Spanish Copyright Act approved by law 2/2019 of 1 March 2009

By Raul Bercovitz

03-2019

Reform of the collective rights management system

Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market was pending transposition into Spanish law. In order to comply with the transposition obligation, the Spanish State has just approved Law 2/2019, amending the revised text of the Intellectual Property Law, approved by Royal Legislative Decree 1/1996, of 12 April.

The changes made to the regulations on collecting societies have resulted in a reorganisation of the content of Title IV of the third book of the revised text of the Copyright Act, which contains the regulations applicable to collecting societies. The modifications introduced focus on the following six main areas: representation of the holders of rights and membership of the collecting society; internal organisation; management of collected rights; management of IP rights on behalf of other collecting societies (reciprocity agreements); relations with users (licensing); and transparency and information obligations.

As regards the requirements for the collective management of intellectual property rights, Law 2/2019 includes specific rules applicable to collecting societies from other States operating in Spain; to entities dependent on a collecting society; and to independent management operators. Management entities not established in Spain and independent management operators that on the date of entry into force of Law 2/2019 (3-February 2019) provide services in Spain must notify the Ministry of Culture and Sport, within one month of such entry into force, of the commencement of activities (Additional Provision 2).

As regards the rights management contract between the rights-holder and the collecting societies, the novelty is that the rights-holder may revoke his contract in whole or in part provided that he gives reasonable notice of no more than six months. The specific extension of this notice must be regulated in the statutes of each collecting society.

The internal functioning of management entities is modified by introducing the obligation to create a support body for the general assembly, which is functionally independent from the governing and representative bodies of the entity. Its function will be to control internally the management of the latter in various tasks: distribution of collected rights, handling of complaints and claims, disciplinary proceedings, control of the execution of the budget, and so on.

Another important novelty is that multi-territorial licences are regulated for the first time in the Spanish legal system. These licences will make it easier for providers of online music services to obtain the necessary permission, by means of a single cross-border authorisation, to use the rights to musical works or repertoires in the territory of several Member States and even the whole of the European Union.

As far as rights management is concerned, Law 2/2019 establishes a maximum period of nine months for distributing and paying the rights collected in the previous year to the holders and the obligation for collecting societies to keep analytical accounts that allow them to adapt the amount of their management deductions to the real costs incurred.

The reporting, transparency and accounting obligations of collecting societies are extended by the requirement for an annual transparency report to be drawn up in parallel with the annual accounts. This report should provide, at a high level of detail, financial and economic management information. These new obligations are due for accounting years commencing after 31 December 2018 (Final Provision 3).

In the sanctioning system, the introduction of a mechanism for the exchange of information between European authorities regarding infringements committed by collecting societies established in another Member State of the European Union but providing services in Spain is noteworthy.

Other modifications

Law 2/2019 also modifies the time limit provided for in article 20.4 regarding the claim of rights for cable retransmission, to bring it into line with the time limit of five years provided for in article 177 for the claim of intellectual property rights in general.

It also introduces the time limit to exercise the action for reimbursement of the equitable compensation for private copying (1 year from the acquisition of the material that gave rise to the payment of the private copying levies) (art. 25. 8 LPI).

Law 3/2008, of 23 December, on the resale right for the benefit of the author of an original work of art is repealed, and the resale right is regulated in detail in article 24 of the Spanish Copyright Act.

Law 2/2019 also transposes Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017 on certain permitted uses of certain works and other subject-matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled; this harmonises the use of works and subject-matter without the authorisation of the rightholder in favour of certain disabled persons.

 

Authors

Raúl Bercovitz

Raúl Bercovitz

Of-Counsel
Spain

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