Modifications to the Spanish Intellectual Property Law approved by the Government as a matter of urgency

The purpose of Royal Decree-Law 24/2021 is to modify and incorporate provisions in Spanish regulations such as in the Intellectual Property Law, the Law on the Re-use of Public Sector Information, the Law on Retail Commerce or the Law on the Protection of Consumers and Users, among others. In this case, we will focus on the modifications made in the field of intellectual property by this Omnibus Royal Decree-Law approved as a matter of urgency five months later than expected due to the Covid-19 pandemic, among other reasons. Book IV of this regulation incorporates into the Intellectual Property Law the Digital Single Market Directive (Directive (EU) 2019/790) and the Broadcasting Directive (Directive (EU) 2019/789). 

Both European directives and, therefore, Book IV of the Omnibus Royal Decree-Law seek to address and provide legal certainty to the new business models and technological means that have emerged in recent years as a result of the digital transformation and through which works subject to copyright are exploited and distributed. By means of these rules, the regulators aim to establish a legal framework within which online works are exploited, thus facilitating users’ access to them and ensuring that the intellectual property rights of their owners are not neglected in this new digital environment. In particular, Spanish legislator emphasizes the importance that the transposition of these rules has for the Spanish cultural sector, which is especially vulnerable after the Covid-19 pandemic.

With regard to ensuring secure access by users to copyrighted digital works, the following new provisions are noteworthy:

• The establishment of new limits to intellectual property rights that exclude the need to obtain the authorization from the owner for certain uses of their works in order to find a fair balance between the interests of the author and other right holders and the interests of users. In particular, exceptions are created to the right of reproduction of works for “text mining”, which is the use of automated analytical techniques on data and texts in digital format to generate new information (i.e. patterns, trends, correlations) and to the right of transformation of works using the “pastiche” technique, which is the creation of a new work by combining characteristic elements of existing works (for example, memes). Existing limits such as the use of digital works in educational activities or the use by cultural heritage institutions of works for conservation purposes are also complemented.
• The adoption of measures to facilitate the licensing regime and access to protected content. Among others, the power of collecting societies to allow cultural heritage institutions to exploit the works that are permanently in their collection outside the commercial circuit.

As for the rules aimed at ensuring the proper and equitable functioning of intellectual property rights in the digital market, the following modifications are worth mentioning:

• The modification of the liability regime for online content-sharing service providers. Until now, these platforms were exempt from any liability related to the legitimacy to publish the content uploaded by their users. This meant that many of the works that were uploaded did not have the authorization of their legitimate owners. By means of this regulation, the recent European court rulings are taken into account and the controversial article 17 of the Digital Single Market Directive is transposed, and from now on the online content-sharing service providers (such as Facebook or Youtube) will be liable for any acts of communication their users make using their channels, as long as they do not have the prior authorization of the owners of the public communication right. Said authorization will not be required if such service providers can prove that they (i) have made their best efforts to obtain the authorization, (ii) have made their best efforts to ensure the unavailability of the works protected by intellectual property rights, and (iii) have acted expeditiously upon receipt of a sufficiently reasoned notification from the right holders, to disable access to the content and have made their best efforts to prevent the content from being uploaded again.
• The new regulation on fair remuneration for authors and artists. From now on, unfair remuneration may be reviewed regardless of the type of remuneration that has been set (proportional or a lump sum). Likewise, a new transparency obligation is incorporated for the assignees of exploitation rights, under which they must report to the authors or performers at least once a year. By implementing these measures, the European Commission aims to correct the value gap that currently exists because of the difference between the income received by the providers of online content sharing servicers (for instance, free ad-supported platforms such as YouTube or Spotify) and the revenues authors and artists received for such content.
• The introduction of a new related right for authors and press publishers that will allow negotiations with digital content aggregators to be either directly or through a collecting society. This new right implies the elimination of the "AEDE Canon" (popularly known as "Google Tax"), which content aggregators had to pay in favour of press publishers and news agencies. This measure will allow the return of Google News 7 years after it stopped offering the service.  
• The establishment of new rules aimed at facilitating the online transmissions of broadcasting organizations and retransmissions of television and radio programmes. With these rules, lawmakers seek to create a legal framework adapted to the business models of broadcasting companies.

From digital platforms and operators to authors and artists, as well as other holders of intellectual property rights such as editors or producers are affected by the modifications introduced in the Intellectual Property Law, which will lead to an increase in the conflicts arising from the (already too frequent) practices of digitally reproducing and sharing protected works without the authorization of their owner. 

Finally, although, as set out in the text, it is intended that the applicable legislation on intellectual property should be stable against any future innovations and that it should not limit technological developments, we will have to wait to see how these new rules are applied in practice to find out if they will really be sufficient to meet the needs of the new digital era, without losing sight of the intellectual property rights of the owners of the content. In any case, the late transposition of these European directives and the fast development of technology and digital transformation makes us question whether they will even be useful in the near future.