[A2k] 1709Blog re Private copying in Spain, new rules

Manon Ress manon.ress at keionline.org
Tue Nov 20 12:02:32 PST 2012


Private copying in Spain: a new look for fair compensation rules

>From our Spanish friend Fidel Porcuna (Bird & Bird) comes some
significant news of developments in the bottom left hand corner of the
European Union.  Fidel writes:

    "On 18 October the Spanish Government launched a public
consultation over the new draft regulation for collecting fair
compensation for private copying. This consultation ended on 5
November and, presumably, collective societies and other private
institutions and associations have filed substantive observations.
This new draft follows the abolition on 31 December 2011 of the
Spanish copyright levy: its main objective is to establish a new
system to compensate right holders for private copying.

    Under this new system, compensation will be calculated annually
and charged to the State Budget: there will be no collecting
obligations for the industry as in the past. This is interesting: if
you link the copyright levy to the actual sale of the digital
reproduction equipment, devices and media, the indiscriminate
application of the copyright levy to virtually all users of such
equipment, devices and media is incompatible with Directive 2001/29
(Case C-467/08 Padawan). If you however discharge this obligation via
the State Budget, such obligation would still be imposed on virtually
all users of such equipment, devices and media, and even extended to
non-users but, in the eyes of the Spanish lawmaker, that will be in
conformity with Directive 2001/29.

    The amount of compensation will be calculated on the basis of the
harm actually caused to copyright  owners in result of copying by
individuals for private use, but not professional or business use. The
estimate of this harm is done by applying the following objective

        (a) an estimate of the number of copies made, excluding those
reproductions made by equipment, devices and digital reproduction
media that have not been made available to private users and are
clearly reserved for uses other than private copying.

        (b) the impact of private copying on the sale of original
works, taking into account the actual degree of substitution by these
private copies made and the effect it has on such original works the
possibility of private copies by the purchaser.

        (c) the nature of the copies (digital or analogue) and the
different impact it has on the private copy limit.

        (d) The application of technological measures referred to in
Article 160(3) of the Intellectual Property Law to avoid
non-authorised uses of the protected works.

    The preceding paragraph does not give rise to an obligation
tocompensate in those situations in which the prejudice to the right
holder is minimal.

    There will be three categories for distribution: phonograms,
audiovisual works and books. The Government will pay the collective
societies, which will distribute the amount to right-holders.

    Manufacturers, distributors, wholesalers or retailers and
end-buyers who paid levies before 1 January 2012 will not be entitled
to a refund of the amount paid. Further, debtors and, where
appropriate, parties who are jointly responsible for fair compensation
for private copying who acquired such status before 1 January 2012 and
did not submit the settlement declaration to collective societies or
had not paid the amounts due, must do so within six months from the
entry into force of the Royal Decree. Note: the levy will be generated
for the importer/ manufacturer the moment it transfers the ownership
of the product to the next link in the chain (distributor).

    The Spanish Government has set the amount for 2012 and 2013 at €5
million for each year.

    Finally, the draft Royal Decree amending the current Intellectual
Property Law was leaked to the press a few days ago. Although the
Government sustains that such draft is not the current version, it has
not denied that the leaked document is fake. The amendments are
substantive. For example, the text reads that the private copy shall
only be the copy of the original work or the original broadcast of
such work, so a copy made from a private copy will fall outside of the
limitation (the position currently is broader because the law
expressly refers to copies made from works to which the user has legal
access). In addition, internet service providers offering links to
protected contents (to be downloaded through Torrent etc.) must
publish the list of the authorisations from the right holders of the
linked contents under a penalty of up to 150,000 Euros. The disclosure
of IP address identification will be possible in cases of unauthorised
massive dissemination of protected contents".

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