On 2 November 2021 the Spanish Council of Ministers approved the Royal Decree no. 24/2021 implementing, among others, the Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and, on 2 December 2021, the Spanish Congress approved the Spanish Royal Decree. In this context, the Spanish Royal Decree stablishes new regulation on copyright and related rights, and includes several amendments to the Copyright Act of 1/1996, of 12 April.
Royal Decree no. 24/2021, of November 2.
02 December 2021
Amendments to existing law
The Spanish implementation procedure has concluded.
Mariano Santos; David Fuentes
One of the main objectives of the Spanish Royal Decree is to develop a favourable and legally secure environment for the exploitation of content protected by copyright and related rights, particularly in the context of constant technological evolution.
The implementation of the EU Copyright Directive is late, as it should have been implemented by 7 June 2021 at the latest. This delay is explained and justified in the explanatory memorandum of the Spanish Royal Decree as one of the reasons for the urgent and extraordinary need to implement the Directive via Royal Decree (which is an exceptional Spanish legal tool).
The Royal Decree introduces new regulations on text and data mining in order to implement Articles 3 and 4 of the Directive. The Royal Decree defines text and data mining as any automated analytical technique intended to analyse text and data in digital formats in order to generate information including patterns, trends, correlations or similar elements.
The wording of article 32.2 of the Spanish Copyright Act has been modified, deleting the so-called “AEDE” royalty – a mandatory and unwaivable collective management fee – and a new related right of publishers has been introduced (article 129 bis of the Spanish Copyright Act) in relation to the online use of press publications by providers of electronic content aggregation services.
The liability regime for online content-sharing service providers in the field of intellectual property rights is significantly modified. In particular, the Royal Decree now clarifies that any act through which a service provider of online content sharing services grants, to the public, access to works protected by copyright and uploaded by its users, amounts to a communication to the public of such work. In this sense, in order for service providers to be able to carry out such communication, they must obtain authorisation from the relevant right holders. Otherwise, they can be held liable unless they can prove that they have made – inter alia – their best efforts to obtain the corresponding authorisation. Special attention should be paid to the amendments introduced regarding to live content, as these require that the service provider disable access to or remove such content from their website during the retransmission of the live event.
As regards the principle of appropriate and proportionate remuneration, the Spanish Royal Decree has not implemented the principle of appropriate and proportionate remuneration through collective bargaining mechanisms. Regarding the contract adjustment mechanisms, the EU Copyright Directive includes the wording "disproportionately low", while the Spanish Royal Decree uses the wording "clear disproportion". In addition, the Spanish Royal Decree states that the contract adjustment mechanism may lead to an appropriate and fair remuneration, while the EU Copyright Directive refers to an additional, appropriate and fair remuneration. In this context, the Spanish Royal Decree can lead to different practical consequences from those set forth by the EU Copyright Directive.
The Royal Decree contains provisions regarding the adequacy and proportionality of remuneration, as well as transparency obligations. In particular, article 47 of the Spanish Copyright Act regarding the review action for inequitable remuneration has been modified. The Royal Decree also modifies the Spanish Copyright Act to include a right of termination to authors who have authorised or assigned their rights in a work on an exclusive basis if the work is not being exploited.
The Royal Decree contains provisions regarding transparency obligations. Under certain conditions, it establishes the obligation of the assignee to provide authors or performers with updated information on the exploitation of their works or performances, in particular with regard to the modes of exploitation, the total income generated and the corresponding remuneration.
The new business models and agents that have arisen as a result of digital technologies and the Internet have led to a regulatory framework that has become progressively ineffective (or, at least, generic and ambiguous). In light of this, and of the certain emergence of future innovation, the implementation of the EU Copyright Directive has been necessary.We will just have to see how these new regulations are applied, or whether any further amedment will be necessary to achieve a proper balance in the copyright and related rights field.