In a country like Spain, known for its mix of cultures throughout history, it is vitally important—in order to foster interest in culture, research, and information—to have an institution whose purpose is to preserve the country’s bibliographic, audio, visual, audiovisual, and digital cultural heritage at every stage of history.

This institution is based on the legal deposit system. The legal deposit system enables the General State Administration and the Autonomous Communities to fulfill their duty to preserve and collect copies of all types of publications reproduced in any medium and intended, by any means, for distribution, public communication, rental, or sale.

In a world where technology advances day by day, it is essential to adapt to these advances as quickly as possible and not fall behind; that is why the Council of Ministers recently approved moving forward with the preliminary draft bill that amends Law 23/2011 on Legal Deposit.

This decision is based primarily on the need to adapt to the changes that have taken place in the publishing sector in recent years. That is why the new law will enable a more effective role in the preservation of national publications and will optimize the management of preservation centers by improving and refining the collection of publications, which—to better adapt to today’s world—will involve the gradual incorporation of digital media into the publishing landscape.

However, this new law also entails a series of significant changes for the Spanish audiovisual sector; specifically, the Spanish Film Archive will be recognized as a conservation center,andthe role of the producer will implicitly be given greater importance.

Regarding the importance of the producer’s role, we will see that the new law will require regulated entities applying for a legal deposit number to include not only the distributor but also the producer. Furthermore, with the passage of the new law, legal deposit will require the inclusion of original materials related to any motion picture produced by a producer who has a domicile, residence, or permanent establishment in Spanish territory.

However, we will not only discuss the legal deposit of “cinematographic films”; we will also include the concept of “other audiovisual works,” which refers to audiovisual works that are not intended solely for exhibition in movie theaters, but rather to audiovisual works that reach the public through other media.

At this time, the draft bill has been submitted for public comment, so we will still have to wait to learn about the new regulations that will apply to legal deposit in Spain.

Author: Claudia Pérez Moneu

On September 8, 2020, the Court of Justice of the European Union (CJEU) issued a ruling in Case C-265/19, involving the Irish collecting societies RAAP and PPI, the former representing artists and the latter representing producers.

The two entities had reached an agreement whereby PPI would be responsible for collecting and subsequently distributing the amounts obtained from the public communication of phonograms via wireless broadcasting, remuneration that is based on Article 8(2) of Directive 2006/115/EC on rental and lending rights (the “Directive”).

The dispute arises from PPI’s refusal to pay RAAP its share of this remuneration, on the grounds that Irish copyright law (CRRA) excludes from this remuneration artists who are neither nationals nor residents of the European Economic Area (EEA) and whose performances “do not originate from a sound recording made in the EEA.” PPI argues that paying artists from certain countries would violate the principle of reciprocity established in the CRRA—in particular, paying U.S. artists, since the United States only partially recognizes this right to remuneration for Irish artists.

Of course, RAAP objected to this interpretation, arguing that the artist’s nationality and place of residence are irrelevant when it comes to the distribution of these amounts, since Article 8.2 of the Directive contains no specific provisions in this regard.

In this context, the CJEU ruled on four preliminary rulings.

The CJEU combines the first two questions and reformulates them by asking whether Article 8(2) of the Directive, in light of the Rome Convention or the World Intellectual Property Organization (WIPO) on Performances and Phonograms (WPPT), precludes a Member State from excluding artists who are not nationals or residents of a Member State from the remuneration described above.

The Court first notes that Article 8(2) of the Directive does not establish any limitation in that regard, adding that it follows from recitals 5 through 7 of the same text that these provisions must be interpreted “in accordance with applicable international conventions.” This requires interpreting the provision in accordance with the WPPT, which obligates signatory states to remunerate national artists and producers from any of the contracting parties; therefore, the CJEU concludes that the right to equitable and one-time remuneration cannot be reserved by the national legislature solely for nationals of EEA Member States, thereby disadvantaging nationals of third countries.

The court then proceeds to rule on the third preliminary question, which asks whether reservations made by third countries that affect the rights of nationals of a Member State permit the exclusion of nationals of those third countries from the rights recognized in Article 8(2) of the Directive.

The CJEU acknowledges that these reservations may affect the position of artists and producers from Member States vis-à-vis those from third countries, raising the possibility of applying the principle of reciprocity established in international treaties, since “preserving equitable conditions for participation in the trade in recorded music constitutes an objective of general interest that may justify a limitation on the right related to copyright.”

However, while acknowledging that this is reasonable, the CJEU notes that these limitations cannot be established by the Member States, but rather by the EU, pursuant to Article 52(1) of the Charter of Fundamental Rights of the European Union.

Thus, a Member State may not limit the right to fair compensation even if third countries have reservations in this regard, as the Union legislature is the only body authorized to make such a decision.

The fourth preliminary ruling asks whether Article 8(2) of the Directive precludes equitable remuneration from being limited solely to the producer, to the exclusion of the artist. The court briefly addresses this issue, stating that this provision does indeed preclude such a limitation.

In my opinion, this ruling yields some important conclusions. First, the existence of a provision such as the articles of the Irish CRRA at issue in this dispute reveals the limited harmonization of European intellectual property laws, since only in an environment with little standardization can there be provisions so diametrically opposed to a provision of a directive.

Second, it highlights some of the causes of inequality in the recorded music market. Although the CJEU’s interpretation does not appear to be open to debate, it is difficult to imagine that the European legislature will undertake a legislative reform that would impose limitations on the remuneration of third-country nationals such as those discussed here. If this continues, the EU will remain in an asymmetrical position relative to countries such as the United States in this area. While it is true that in a global market such as the music industry, these types of restrictions may be questionable, the application of the principle of reciprocity could serve as a temporary solution to this inequality.

Author: Martín Bello

Previously published in Economist & Jurist

There are many factors that will shape this unexpected period of lockdown that has swept the world. The standstill—a common thread across all countries affected by COVID-19—reminds us of the importance of globalization. And despite the voices that seek to question it, the truth is that globalization has enabled countries to respond to the pandemic in a way that, had they acted individually, would have been even slower and more complex.

And amid this economic and social paralysis, the discipline that never sleeps prevails as always—and with even greater fervor, if that’s possible: the law. On April 28, the Beijing Treaty on Audiovisual Performances and Interpretations (BTAP, hereinafter the “Treaty”) entered into force in the first thirty contracting states (the minimum required for its entry into force). This marks a historic milestone in the field of rights related to copyright. From now on, the Treaty’s binding effects will take effect three months after each new State’s ratification or accession. Switzerland was the first to join the list.

For the first time, an international instrument provides express protection to performers with respect to their works fixed in audiovisual form, recognizing their right to decide when and how their audiovisual work is used abroad, as well as to share in the benefits generated by its exploitation, including in the digital environment. Until now, only sound-only fixations enjoyed such protection (see the WIPO Performances and Phonograms Treaty [WPPT], adopted in 1996 and in force since 2002).

Under this Treaty, all interpretations and performances of literary and artistic works or expressions of folklore are protected by intellectual property rights, regardless of their nature or medium, including both fixed and unfixed works (live performances), thereby recognizing the creative activity of these interpreters and performers in the same way that musicians and authors have already been recognized.

Click here to access the full text of the Treaty.

Author: Sara Isabel Tortosa

Globomedia, the production company behind series such as “El Internado” and “Vis a Vis,” filed a complaint against Álex Pina and his company, La Raspa Producciones S.L.U., on the grounds that he had breached the contract for the provision of services and the assignment of intellectual property rights that both parties had signed when creating “La Casa de Papel” and had failed to assign those rights to Globomedia.

Well, on November 13, 2019, Madrid Commercial Court No. 3 acquitted Álex Pina, the creator of this series—whose fourth season has just premiered on Netflix—and ordered Globomedia to pay the costs after rendering its decision in a regular trial stemming from the complaint filed by Globomedia. In its complaint, Globomedia alleged that Álex Pina had breached the contract for the provision of services and the assignment of intellectual property rights that both parties had signed.

Their professional relationship dates back to 1998. Since that year, Mr. Pina had been working for Globomedia as a screenwriter, and beginning in 2007, the two parties had entered into various contracts for the development and production of audiovisual projects; since 2014, Pina has been responsible for coordinating and producing these projects in his capacity as executive producer.

Globomedia sought compensation of 871,641.76 euros for damages, on the grounds that the contract entered into in 2016 for“the provision of services related to the creation, design, writing, content direction, development, and executive production of audiovisual projects for television, film, or other media, and the assignment of intellectual property rights over the works and creations derived from the provision of such services”had been breached by the screenwriter, since, according to the plaintiff, the contract established a“priority or preference regime”in favor of Globomedia regarding all of Mr. Pina’s creations; however, he had written the screenplay for “La Casa de Papel” without the plaintiff’s knowledge during the term of the contract.

It should be noted that, unlike previous contracts, the contract signed on April 21, 2016, did not include a commitment on the part of Mr. Pina to personally carry out the coordination and production tasks; rather, La Raspa Producciones, S.L.U. could subcontract the individuals it deemed necessary to provide the services and, as stated in the ruling, the contract itself“acknowledges that the service provider may also provide its services simultaneously to other clients, specifically in the television sector.”

For their part, the defendants denied having written the script for “La Casa de Papel” behind Globomedia’s back, claiming that the contract was entered into between GLOBOMEDIA and LA RASPA PRODUCCIONES, S.L.U., and asserting that the plaintiff lacked standing to sue the screenwriter. Furthermore, they argued that there was no exclusivity agreement in favor of the plaintiff.

The Judge, therefore, dismisses Globomedia’s claims, as it follows from a literal and systematic interpretation of the contract that Mr. Pina “[…] was under no obligation to submit to Globomedia the possibility of undertaking any projects he conceived or created in the television sector during the term of the contract dated April 21, 2016, and was free to present them to third-party clients, regardless of whether they were created by the screenwriter or by third parties […].”

Author: Inés de Casas

(More on the Reform of the Royal Decree Regulating the Film Law)

To cap off a month full of cinema, with the Goya Awards still fresh in our minds, the government launched a public consultation today regarding the amendment of Royal Decree 1085/2015, dated December 4, which implements Law 55/2007, dated December 28, on Cinema.

The Royal Decree in question is the cornerstone upon which the entire regulatory system for Spanish cinema is based and includes, of course, the foundation for public subsidies, but also a multitude of other issues, such as the functioning of the advisory and supervisory bodies of the Institute of Cinematography, the penalty system, the rating of audiovisual content, and much more.

As for the text being made available today for public comment—on which any citizen can provide input until February 19— it is an update to the legal text, which is the bare minimum considering that the law on which it is based dates back to 2007—a little over twelve years ago, which is practically the Jurassic era for a sector that is constantly reinventing and updating itself.

This is not a comprehensive reform, but rather involves only a few articles of the 2015 text. Furthermore, many of the reforms are procedural rather than substantive, or are due to regulatory changes that occurred after the original Royal Decree and that are already applicable even without the reform now being incorporated. Such is the case, for example, with the references in Article 4.2 of the new draft to Law 39/2015 on Administrative Procedure, or the reference in Article 36 to Law 40/2015 on the Public Sector.

There are, however, some reforms—driven by practical realities—that were sorely needed. This is the case, for example, with Article 10.3 of the draft regarding the management of co-productions. The current regulation requires that any matter related to this section be resolved before filming begins. This means that producers cannot access funds from foreign co-producers interested in participating in the project for this reason, which, in very extreme cases (fortunately, only a few), can prevent the project from being completed. The rule, quite reasonably, includes an exception to the general rule, so that financial co-productions can still be approved even after filming has begun.

The cornerstone of the reform, of course, is Article 21.2 of the draft, which regulates the limits on state aid. These limits determine the amount of public funding an audiovisual project can receive and are predefined by the European Union. It is up to each Member State to determine the content of works defined as “challenging”—that is, those with a more limited commercial reach, which may face greater financing difficulties and would be doomed to disappear without additional support.

The definition of “difficult work” varies widely across the European Union and allows for a specific type of work in a particular EU member state to receive special protection, exceeding the 50% threshold that is standard in the industry. Each country, of course, established its own definitions, leading to a sort of “arms race” in this regard.

Spain wasn't particularly bold when it came to classifying a work as difficult in the 2015 regulations, which is not helpful to producers and creators, who have to compete with neighboring countries that have adopted such measures. This forces business owners in the Spanish industry to accept smaller stakes, prolonging production processes as they seek financing and losing competitiveness in attracting film shoots to our country (and the resulting jobs), etc.

The turning point in this particular race came in Italy when, two years ago, it introduced a package of laws that made substantial changes to its domestic regulations (based, of course, on the French system). The new regulations defined any Italian production with a budget under 2.5 million euros as a “difficult production” and allowed for 100% public funding for these projects. This, combined with a quasi-automatic subsidy program, a robust tax incentive scheme, and a 60% increase in the amount of public funds available to the sector—bringing the total to 400 million euros—is no small feat, especially when we consider that Spain, at the national level, barely reaches a total of 70 million euros in this type of aid.

The reform now proposed in this legislative bill—while not a panacea for Italy and a far cry from the French system—introduces improvements that make it possible to support particularly vulnerable projects that, until now, had no special protection. Among these are projects led by people with disabilities, those led by women, and projects of special cultural and artistic value that require exceptional support.

However, the reform falls short. Beyond the effort that the approval of the bill under consideration undoubtedly represents—and will continue to represent—for the government, this is merely the isolated voice of the Ministry of Culture. It is well known that, as of today, the audiovisual production system could not sustain its current pace were it not for the tax incentive system, which opens the door to private financing and makes our country attractive to foreign producers.

For the proposed amendment to be fully effective, it must be coordinated with the specific tax regulations we have indicated, as set forth in Article 36.1 of the Corporate Income Tax Law. Otherwise, there will continue to be two separate spheres—one tax-related and the other regulatory—and the latter must be reconciled to ensure a coherent and secure legal framework for the sector.

Author: Mabel Klimt

The Golden Globe Awards were recently held in the United States, and on February 9, the Academy Awards, presented by the Academy of Motion Picture Arts and Sciences, will be held in Los Angeles. Also in February, the British Academy Film Awards ( BAFTA) and the French César Awards will be presented.

Spain is no exception to this “awards season”: in mid-January, the José Mª Forqué Awards—organized by EGEDA —were held, marking their 25th edition this year. These are followed by the Feroz Awards and, of course, the Goya Awards, presented by the Spanish Academy of Motion Picture Arts and Sciences, which will take place on January 25.

Faced with this “avalanche” of awards, it’s inevitable to wonder about their significance. The reality, at the end of the day, is that there is no such thing as “awards season,” and the activity—including awards, festivals, galas, and markets—lasts practically the entire year across the industry’s various facets and specialties.

This concentration of awards in the first few months of the year is due, above all, to the fact that these events serve as promotional tools for various films that are about to be released or have recently been released. In a world full of distractions, this helps capture or draw viewers’ attention. In some cases, receiving a nomination or a major award can even give a film a “second commercial life” (or, for smaller projects that had come and gone from theaters without much fanfare, simply a new lease on life).

This issue is so significant as part of the economic process related to the production, promotion, and exploitation of an audiovisual project that the Institute of Cinematography and Audiovisual Arts (ICAA), which reports to the Ministry of Culture and several autonomous communities, offers specific grant programsto support both festival attendees and organizers.

It is also common for these events—and especially film festivals (Berlin, Cannes, Toronto, San Sebastián)—to be accompanied by parallel activities aimed at industry development, such as conventions, conferences, or workshops. These events typically feature hectic schedules of meetings aimed at securing sales, seeking funding, participating in discussions on future legislation, attending industry association meetings and assemblies, conducting interviews with officials, or simply taking the opportunity to build collaborative networks that may lead to future projects.

Thus, despite the aura of glamour inherent in any film award or competition, we must be aware that, behind that aura—and beyond the excitement of receiving a statuette— lies a thriving industry that, in Spain, generated more than 500 million euros in ticket sales last year.

Author: Mabel Klimt