An ambitious proposal for the Copyright Law
Last Friday March 22, 2013, the Ministry of Education, Culture and Sports submitted the proposed preliminary bill amending the Copyright Law (“LPI”) to the Cabinet of Ministers. The preliminary bill sets out ambitious reforms to the legal framework governing the LPI. The measures envisaged can, broadly speaking, be divided into three groups:
- The regime limiting copyright in private copying by private reproductions of works, and the limit on illustration in teaching has been amended.
- Measures are included to ensure greater transparency and more effective collection by collecting societies.
- New measures are envisaged to ensure the effectiveness of mechanisms to protect copyright from infringement online.
What reproductions or copies can be made without authorization?
The copy or reproduction, on any medium, without the assistance of third parties, of works that have already been published, does not require the consent of the owner of the reproduction right, where the following circumstances simultaneously arise: (1) the reproduction is by an individual for private, non-professional or business use; (2) the copy obtained is not used collectively or for profit; and (3) the reproduction is made from works that have been accessed lawfully.
When is consent necessary?
Copies of computer programs and electronic databases cannot be made without the author’s consent and the author’s consent is also necessary for works that have been made available to the public on agreed contractual terms in such a way that any person may access them from the chosen place and time.
How is the levy paid?
In relation to collection, fair compensation will be established annually and will be met out of the General State Budget. The preliminary bill also establishes that payment will be made via the collecting societies (SGAE, AIE, AISGE, etc.) and indicates that the determination of the amount and payment method will be the subject of a subsequent regulation.
What amendments are made in relation to collecting societies (such as SGAE, etc.)?
The preliminary bill includes the series of obligations that collecting societies must fulfill vis-à-vis the public authorities and their associates (distribution of the rights collected in proportion to the use of the works and provision of services, evaluation in order to obtain detailed information on the degree of use those works, or obligations in relation to the annual submission of accounts). In addition, infringements and penalties are envisaged that enable collecting societies to be made subject to administrative liability due to a breach of said obligations.
Can a website that infringes copyright be identified?
Yes. Improvements have been made in the civil jurisdiction by including certain measures to identify the services of the information society in relation to which there are reasonable grounds to believe that content that does not meet the requirements of intellectual property legislation is being made available or disseminated on a large scale, either directly or indirectly. This information will be used exclusively for the judicial protection of rights, and may not be disclosed to third parties and the courts may even treat such cases as confidential.
What measures may be taken against these websites?
The preliminary bill reviews the procedure to safeguard copyright regulated in article 158.4 LPI, stemming from the so-called Sinde Law, which entitles the Copyright Commission to pursue large-scale infringers that cause significant quantitative or qualitative damage to copyright. Now the Second Section can adopt the appropriate measures to interrupt the provision of an information society service that infringes copyright or to have content removed provided that the provider, directly or indirectly, acts for profit or has caused or may cause financial loss.
It is important to underscore that this is a preliminary bill which is at the stage in which any queries and reports that are advisable for the process are submitted. This will continue until it is ultimately approved, whereupon the definitive wording will have to be analyzed.