Artificial intelligence (AI) has been transforming our lives for decades through automation and mechanization. From personalized ads to algorithms on platforms like Netflix, this technology is already part of our daily lives. However, generative AI has brought about a paradigm shift by being able to create content on its own, sparking a revolution in the creative and cultural industries, especially in the audiovisual sector.
The film industry, as an industry based on intellectual property, faces significant challenges posed by generative AI—challenges that experts have not yet been able to resolve.
Some argue that creations produced by this technology are not eligible for protection, since the regulations require human intervention for intellectual property to be protected. Others, however, maintain that the author is the person who provides the prompt. Nevertheless, under current regulations, the person who formulates an idea is not considered its author; therefore,this debate over authorship remains open and has profound implications for the future of the industry.
Faced with uncertainty, film professionals have chosen two main paths:
The recent entry into force of the European Artificial Intelligence Regulation raises questions about how this issue is regulated in other key markets, such as the United States, the mecca of cinema. Although the differences are minimal, the EU focuses on protecting privacy and preventing intrusiveness, reflecting a concern shared globally.
The film industry, as a globally oriented sector, cannot ignore the impact of generative AI. Major platforms are already promoting local productions with a global reach, demonstrating that these technologies have the potential to transform current dynamics.
One of the most promising aspects of generative AI is its ability to democratize content creation. Now, individual creators can also access advanced tools, lowering the technical and financial barriers that previously limited high-quality production.
Professionals in technical fields are exploring these tools in pre-production and post-production, achieving surprising results. However, this raises new questions about intellectual property rights in an environment where human-machine collaboration is redefining the boundaries of creativity.
The relationship between generative AI and intellectual property is particularly sensitive in the audiovisual sector. For example, some actors are including clauses in their contracts to prohibit the use of their likeness in AI training or the generation of content without their authorization.
In this regard, many platforms are already includingrestrictions in their contracts, adopting a cautious stance as the law evolves.
The development of a balanced regulatory framework will be key to ensuring the sustainability of the audiovisual sector. Such regulation should take into account the interests of creators, companies, and viewers, allowing this technological revolution to foster creativity without jeopardizing the industry’s economic viability.
The combination of human talent and generative AI tools can lead to an unprecedented explosion of creativity, provided that legal and ethical challenges are addressed responsibly.
Mabel Klimt, managing partner at Elzaburu
Intellectual and industrial property, although it may seem like an abstract or technical concept, is a fundamental force that drives innovation and development in numerous sectors.
This set of rights includes various forms of protection, such as patents, which ensure that inventors can obtain exclusive rights to their technical inventions; copyrights, which allow authors to protect their works from unauthorized use by third parties; and trademarks, which identify and distinguish products or services, providing their owners with a unique identity in the marketplace.
It is also important to understand what trade secretsor business secrets are—they protect technical or scientific knowledge, business data, and key commercial and market strategies that are essential for maintaining a competitive advantage.
Through certain films, we see how cinema has depicted the complex struggles to secure these protections, ranging from legal disputes over copyrights and patents to efforts to establish and expand a brand in competitive markets.
These stories illustrate the risks, ingenuity, and perseverance required to protect an idea, and they also demonstrate how these rights become an essential tool for the success and growth of companies in the competitive global market.
This Spanish film explores a future in which artificial intelligence redefines our country's judicial system, raising questions about how emerging technologies should be regulated and what role intellectual property will play in the protection and use of these algorithms. It is a story that raises ethical and legal challenges regarding the control of AI in society.
"Air" shows us the iconic deal between a young Michael Jordan—represented commercially by his mother—and Nike, which gave rise to the famous Air Jordan brand. This film captures the moment when the sports and fashion industries came together to create a brand that would change the perception of sporting goods, highlighting the power of a well-positioned brand in the global market.
A thriller that explores the intricate story of how the video gameTetris, created in the Soviet Union, obtained the license to be marketed in the West. The film illustrates the political and legal barriers the creators had to overcome, highlighting the importance of licensing in bringing an innovative idea to the international market.
This historical drama depicts the fierce competition between Thomas Edison and George Westinghouse for control of the U.S. electrical grid. In addition to chronicling technological advancements, the film explores the business strategies and intellectual property rights that shaped the electrical grid as we know it today.
This is the story of Ray Kroc, the founder of McDonald’s, which recounts how a small hamburger shop became one of the world’s largest franchise chains. The film illustrates the power of expansion under an established brand, addressing topics such as the use of intellectual property in franchise management and the global expansion of a brand.
Inspired by the life of Joy Mangano, this film tells the story of how innovation can emerge from everyday products. Through her cleaning inventions, Joy builds an empire, highlighting the importance of protecting ideas in all sectors—even less traditional ones—through patents and design rights.
"Big Eyes" tells the story of Margaret Keane's struggle to claim authorship of her famous paintings, which for years were attributed to her husband. The film explores the human side and the legal implications of copyright, highlighting the importance of intellectual property in protecting artists' creative legacies.
Based on a true story, this film tells the story of an engineering professor who invents and patents a windshield wiper system and subsequently faces a legal battle with the automotive industry, which uses the system without his consent. The story highlights the importance of patents as a means of protection for inventors, illustrating the difficulties of defending intellectual property rights against large corporations.
In this classic satire, a scientist invents a fabric that is virtually indestructible and never gets dirty. However, the textile industry conspires to prevent its production, as it could put an end to their businesses. The film explores the challenges inventors face when their ideas threaten established commercial interests, highlighting the influence of intellectual property on the market.
This film noir classic explores the dangerous trade in counterfeit penicillin in postwar Vienna, revealing the risks associated with the counterfeiting and trade of unauthorized pharmaceutical products. The plot highlights the need for trademark protection and regulations to safeguard public health and intellectual property.
In short, these films offer us a unique perspective on how intellectual and industrial property not only protects the interests of creators, but also fosters fair competition, drives the economy, and promotes technological and cultural progress.
Claudia Fernández, Attorney in the IP, Media & Entertainment Practice Group at ELZABURU
On July 13, Donald Trump survived an assassination attempt while delivering a speech at a rally in Pennsylvania. Just a few hours later, T-shirts and other merchandise featuring an image of the triumphant candidate—with his fist raised—were already being sold, after he emerged unscathed from the attack.
Is it legal to sell these products without authorization from Trump or the photographers who took these photos? Regulations regarding the right to reputation and the right to one's own image vary by jurisdiction.
The applicable organic law in Spain is Law 1/1982, of May 5, which, in Article 8.2, establishes that the right to one’s own image“shall not preclude its capture, reproduction, or publication by any means in the case of persons holding public office or engaged in a profession of public prominence or visibility, provided that the image is captured during a public event or in places open to the public, or where a significant historical interest prevails.”
The fact is that, although a person’s increased public profile entails a reduction in the protected scope of their image and privacy, this does not mean that such a person is deprived of the rights to which they are entitled.
In other words, although photos of public figures may be published, the unauthorized commercial use of these images would be unlawful and would fall under the provisions of Article 7, paragraph 6, of Law 1/1982, which establishes that “the use of a person’s name, voice, or image for advertising, commercial, or similar purposes, without the consent of that person, shall be considered an unlawful infringement of the right to honor, to one’s own name, and to the image of the affected person.”
Under this law, at least in Spain, products cannot be marketed using a photograph of a politician without that person’s consent. And, for the same reason, the work of a photographer or artist cannot be reproduced or distributed without their authorization, or without the authorization of a natural or legal person authorized by them to license such uses.
Those who violate these laws may face civil actions to protect their honor, privacy, or personal image in connection with the use of the photographed person’s image, as well as civil actions for infringement of intellectual property rights in connection with the unauthorized use of the photographs.
Similarly, if someone were to use a photograph—of which they are not the author—for commercial purposes after digitally altering it, they would still be infringing on the rights to that photograph.
Among the exclusive rights enjoyed by intellectual property rights holders are the rights of reproduction, distribution, public performance, and adaptation.
Just a few hours after the infamous attack on Trump, T-shirts and other merchandise commemorating the event were already available for purchase on AliExpress and Amazon. Do these platforms bear any responsibility for the sale of these items?
Amazon, like other online sales platforms, has mechanisms in place for reporting infringing content that are available to holders of industrial and intellectual property rights, as well as rights to reputation, privacy, or one’s own image; therefore, those who believe they have been harmed may contact the platform directly to request the removal of such content.
It would also be worth exploring the possibility of seeking injunctive relief (either before filing a lawsuit or in conjunction with it) to have infringing products removed or blocked from sale.
Any rights holder whose rights are being exploited by a third party without their consent is entitled to claim compensation, either in the form of a license or, at a later stage—as part of a claim—as compensation for the damages caused.
Alba Mª López, Associate Partner in the Business and Contracts Practice at ELZABURU
On January 25, 2023, the Supreme Court put an end to the controversy surrounding the long-running show “Cifras y Letras.”
The dispute began in 2016 with the lawsuit filed by the “expert” professor from the “Cifras y Letras” program against ARTISTAS INTÉRPRETES, SOCIEDAD DE GESTIÓN (AISGE)—the collecting society of which he was a member—demanding payment of the remuneration granted to performing artists under Article 108.5 of Royal Legislative Decree 1/1996, dated April 12, which approves the consolidated text of the Intellectual Property Law, regularizing, clarifying, and harmonizing the legal provisions in force on the matter (LPI).
The defendant, for his part, argued that under no circumstances was the professor portraying a character; rather, he identified himself as an expert in literature, and therefore was not merely playing the role of an expert, but was, in fact, one.
Commercial Court No. 9 of Madrid, in its ruling of September 26, 2018, ruled in favor of the plaintiff, finding that his appearance on the program “Cifras y Letras” constituted an artistic performance, thereby entitling him to the remuneration established in Article 108.5 of the Intellectual Property Law (LPI) pursuant to the provisions of Article 20. 2(f) of the LPI, and AISGE must therefore pay the amounts outstanding from the program’s first broadcast to the present date.
In light of the previous ruling, AISGE filed an appeal with the Provincial Court of Madrid. For its part, the Court, contrary to the rulings of the Commercial Court, held that the presenter’s performance should be “externalized” in such a way that the audience would perceive it as an artistic creation and not as a personal and spontaneous expression—that is, as a natural performance by the teacher.
As a result, the expert filed an extraordinary appeal with the Supreme Court alleging procedural violations and seeking cassation, in which he claimed a violation of Article 108.5 of the Intellectual Property Law (LPI) in conjunction with Articles 105, 120.1, 122.2, and 122.3 of the LPI.
Finally, the Supreme Court (Civil Chamber, 1st Section), in its ruling of January 25, 2023, held that “the appellant has not demonstrated a valid basis for cassation” and ruled to dismiss the extraordinary appeals for procedural violation and the cassation appeal filed by the plaintiff.
This ruling by the Supreme Court affirms and upholds the judgment handed down by the Provincial Court of Madrid, without addressing the merits of the case. It would have been interesting to hear the Supreme Court’s interpretation of this matter, since no similar case had ever been brought before the high court.
Given everything discussed so far, could it not be argued that a person whose behavior follows a script is not acting in a natural and spontaneous manner, and is therefore performing a role that is eligible for protection? If the answer to the previous question is yes, that person would be considered a performing artist within the meaning of Article 105 of the Intellectual Property Law (LPI) and would be entitled to the remuneration established in Article 108.5 of the LPI.
Claudia Fernández Rañón, Attorney at ELZABURU
The tax incentives available for audiovisual production and the production of performing arts and musical performances are currently a central component of the funding process for these projects. However, until now, it was unclear whether“reality shows” could take advantage of these incentives.
The General Directorate of Taxes has clarified this issue in its binding ruling V2673-22, which we briefly discuss below.
The inquiry was submitted by a Canarian production company, registered in the Administrative Registry of Film and Audiovisual Companies of the Ministry of Education, Culture, and Sports, which provides production services for foreign feature films and is therefore entitled to the tax deduction provided for in Article 36, paragraph 2, of the Corporate Income Tax Law (hereinafter LIS).
The resolution establishes that, in the absence of a legal basis for classifying the various types of audiovisual projects on the market, one must, in accordance with Article 3 of the Civil Code, interpret the provision based on the plain meaning of the words.
Thus, based on the definition of “documentary” provided in the regulations, the DGT considers that the“reality show”program referred to in the inquiry may be classified as a documentary and, therefore, may be eligible for the deduction discussed here, provided that it has an informative, educational, or experimental nature.
This represents a significant step forward in clarifying and interpreting the limits of tax deductions for this type of project, providing guarantees and legal certainty for similar projects that wish to use these deductions as a financing mechanism.
Jaime Hormeño, attorney at ELZABURU
We analyze the recently published Royal Decree 31/2023, dated January 24, which amends the Personal Income Tax Regulations to comply with the measures contained in the Artists’ Statute regarding withholding taxes.
On September 6, 2018, the Plenary Session of the Congress of Deputies unanimously approved the report of the Subcommittee on the Drafting of the Artists’ Statute, which called on the government to adopt emergency measures regarding artistic creation, with the aim of improving the working conditions of Spanish artists. Among these recommendations were several of a tax-related nature.
At the start of 2023, Royal Decree-Law 1/2023, dated January 10, was published, introducing some of the key improvements called for in the Artists’ Statute; all of them relate to the social protection of artists in the labor market and are intended to improve the professional standing of creators, artists, and other cultural workers.
Now, with the entry into force on January 25 of Royal Decree 31/2023, the Personal Income Tax Regulations have been amended with regard to withholding taxes and payments on account applicable to various artistic activities, in order to incorporate the recommendations contained in the Artist’s Statute into tax law.
Two provisions of the personal income tax regulations are being amended to improve protection for the various stakeholders in the sector.
Jaime Hormeño, tax attorney at ELZABURU
The recent class-action lawsuit filed againstGitHub,Microsoft,OpenAI, and OpenAI Codex, seeking $9 billion, is evidence of a problem that was bound to arise for#artificialintelligence: its development may infringe on#copyright, and great care must be taken.
The lawsuit in question challenges the legality of using GitHub repositories to train GitHub Copilot, a service that auto-completes programming code using artificial intelligence. The lawsuit, filed by Matthew Butterick, alleges that 11 open-source licenses and copyrights have been infringed.
The fact is that training AI systems requires feeding them enormous databases (such as those found on GitHub) to develop the large language models (LLMs) that power this technology.
In the case at hand, we are dealing with a large database containing#opensource code. This code, used to train AI, may be copyleft—with viral licenses—or under permissive licenses—which are less open. In any case, they require respect for copyright.
This may require anyone who uses open-source code to disclose its use, attribute it to the author, and comply with the terms of the license, which, among other things, may require keeping the code open source for extended or modified versions of it or for any code into which it is integrated as a component.
Well, this is not the case with the GitHub Copilot service, which would not only violate those rights and terms but would also encourage copyright infringement among its users, since they are unaware that the code snippets used to autocomplete their own code belong to someone else. Thus, they may even be creating commercial code without having true freedom to use the code provided by GitHub Copilot for this purpose.
AI systems from other companies, such as Google and Facebook, are being developed in the same way. And they are not only using programming code to power this technology, but also other types of copyrighted texts, such as literary works, journalistic texts, music, etc.
For this reason, many experts are questioning whether the use of such works to fuel the development of this technology is valid and what measures need to be taken to ensure that it is. Of course, human inspiration draws from sources and not from nothing, and it is legitimate for AI to do the same; but what measures need to be taken to ensure that AI does not generate content that infringes copyright after reading those sources?
At the very least, this will force companies that use GitHub Copilot and other similar tools to conduct thorough code audits. Otherwise, they risk having all their work rendered commercially unusable, among other things.
Alberto López Cazalilla, attorney at ELZABURU
The Court of Justice’s case law on the Spanish private copying levy is on its way to becoming a soap opera—were it not for the significance of each new ruling.
It is curious to note that nothing satisfies either side and that the preliminary ruling has become a standard line of defense in the never-ending saga of litigation between collecting societies and the associations that defend collective interests.
The Court of Justice’s judgment of September 8, 2022, in Case C-263/21 is, in this context, like a vicious circle: the Spanish government decides to abolish the traditional private copying levy system by funding it through the General State Budget, and the Court of Justice, in its judgment of June 9, 2016, in Case C-470/14, rules that this is unacceptable; the government reinstates the levy and implements Article 25 via Royal Decree 1398/2018, and the new regime, among other challenges, ends up before the Court of Justice once again.
On this occasion, the pretext—which is, incidentally, hardly surprising—is very specific: the formula chosen by the Spanish legislature to establish, through a certificate issued by a certain legal entity, the right to be exempt from paying the fee.
It should be noted that Article 25 establishes a private copying compensation system for copyright holders for the reproduction of protected works, exclusively for private use, by means of non-typographic technical devices or instruments.
Purchases of equipment, devices, and reproduction media made by individuals or legal entities acting as end consumers are exempt from the payment of private copying compensation, provided they can demonstrate that the equipment, devices, or media purchased are intended exclusively for professional use, provided that such items have not been made available, either by law or in practice, to private users and are clearly reserved for uses other than the making of private copies.
Under the system devised by the Spanish legislature, this requirement must be substantiated by a certification issued by a legal entity established specifically by intellectual property rights management organizations. It is this legal entity that will, on behalf of all of them, manage exemptions from payment and refunds of compensation for private copying.
The Multisectoral Association of Companies in the Electronics, Information and Communication Technologies, Telecommunications, and Digital Content Sectors (Ametic) challenged these provisions through administrative litigation, and the Supreme Court has referred the matter for a preliminary ruling to seek guidance.
The question is obvious: to what extent is it normal for the legal entity that administers the system of exemptions through the issuance of certificates, as well as the reimbursement system, to be controlled by intellectual property rights management organizations—that is, by entities that exclusively represent the interests of the private copying compensation creditors themselves? The Court also questions whether the power granted to this legal entity to demand information on the activities of the parties concerned—a power that even allows it to deprive the economic operator in question of the ability to invoke business accounting secrecy—is not excessive.
On a battlefield like this, where any hint of hesitation on the part of the Court could lead to new offensives, the ruling appears to be particularly conclusive.
The Court of Justice holds, in essence, that EU law does not preclude national legislation under which a legal entity—established and controlled by intellectual property rights management organizations—is entrusted with the administration of exemptions from payment and refunds of compensation for private copying; nor does it preclude that legal entity from being empowered to request access to the information necessary for the exercise of the supervisory powers conferred upon it for that purpose, without it being possible, in particular, to invoke corporate accounting secrecy against it.
It is true that the judgment clarifies that a legal entity structured in this way will be acceptable provided that such national legislation establishes that exemption certificates and refunds must be granted within the prescribed time limits and in accordance with objective criteria that do not allow such a legal entity to deny a request for an exemption certificate or a refund on the basis of considerations involving the exercise of a of discretion, and provided that its decisions denying such a request may be challenged before an independent body.
But in this specific case, unlike in others, the Court of Justice does not leave that analysis to the discretion of the national court. The judgment explicitly states that Articles 10 and 11 of Royal Decree 1398/2018, which are at issue, “appear to impose” on the legal entity responsible for reviewing applications the obligation to issue, within specific time limits, the exemption certificate or to determine the existence of the right to reimbursement when the applicant provides the required identification information and signs the declarations made available to them. Furthermore, the ruling adds, those articles “appear to establish” the possibility of filing an appeal with an independent body—namely, the Ministry of Culture and Sports—regarding decisions by that legal entity to deny an application for a certificate of exemption or a refund.
Under these circumstances, the Court concludes, “the aforementioned articles appear to be sufficient to meet the requirements set forth in paragraph 45 of this judgment.” Nevertheless, the judgment notes, almost as a matter of style, that “it is, however, for the referring court to assess this.”
A mixed bag, in a ruling that will certainly not be the last one the Court will issue in the never-ending debate over compensation for private copying.
Author: ELZABURU
This article first appeared in Expansión (Sept. 2022). https://www.expansion.com/juridico/opinion/2022/09/09/631b5810e5fdea37548b4630.html
The Secretariat of State for Telecommunications and Digital Infrastructure, as part of the Plan to Promote the Audiovisual Sector (Spain Audiovisual Hub), has announced a call for grant applications for experimental development and process innovation projects using technologies related to the Metaverse and Web 3, for a total amount of 3.8 million euros.
The call for applications, along with the regulations governing the grants (hereinafter“BBRR”), has been published in the Order ETD/653/2022, dated July 6, which establishes the regulatory guidelines for the granting of grants by the Secretariat of State for Telecommunications and Digital Infrastructure and announces the call for proposals for grants for experimental development and process innovation projects using technologies associated with the Metaverse and Web 3.
This aid is financed by the Ministry itself, out of the General State Budget, and not with European funds, and is subject to the regulatory provisions contained, regarding aid for research and development projects, in Regulation (EU) No.651/2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty ( better known as the General Block Exemption Regulation—GBER).
This call for proposals falls within the scope of R&D&I, which is essential for contextualizing the grants, in the sense that they are intended to foster innovation and technological advancement, rather than merely improving the competitiveness of individual companies. That is why the creation of prototypes—and not the commercial launch of a product or service—is the objective of this funding, without prejudice to the possibility that, in the future and in conjunction with other resources, the products or services resulting from the subsidized projects may have commercial potential. As established in the BBRR, “prototypes resulting from the projects receiving the grants may not be used commercially, unless they necessarily constitute the final commercial product and their manufacture is too costly for their exclusive use for demonstration and validation purposes.”
Furthermore, projects must include activities aimed at development and functional improvement; projects that merely integrate third-party technologies will not be considered.
In this document, ELZABURU outlines the conditions, requirements, and most relevant considerations to help you decide whether to apply for the grants described herein.
I. PURPOSE
The grants aim to (i) promote the digitalization and competitiveness of Spanish companies in the sector and (ii) integrate women into the audiovisual industry by encouraging the use of technologies related to audiovisual media, video games, and digital and interactive content, and by supporting the digitalization of small and medium-sized enterprises (SMEs). Projects that incorporate, within these fields, Augmented Reality (AR), Virtual Reality (VR), and hybrid technologies, as well as applications of Artificial Intelligence (AI) and blockchain in the immersive environment of the metaverse and Web3.
Specifically, the BBRR define the following projects for which the grants are intended:
In both cases, projects must serve at least one of the following purposes:
In this context, “digitalcontent”it means“the mass-scale provision of data or digital assets in reusable formats created using VR/AR/XR technologies, WebGL/Web3D/WebXR, video game engines, and other technologies associated with the concept of the Metaverse, such as tools for the digital representation of humans (avatar generation, digital humans, etc.) and technologies for the design and management of spaces.”
In light of the foregoing, projects whose sole or primary purpose is the mere management, issuance, trading, and/or speculation in cryptoassets and/or tokens are excluded, as they are not consistent with the described objectives . This does not preclude the funding of projects that, while complying with the objectives, engage in such transactions, provided that such transactions are not the purpose of the funded activity.
DEADLINES AND AMOUNTS
All of them must (1) be citizens of Spain or of any member state of the European Union or the European Economic Area Agreement, and (2) have tax residency or a permanent establishment in Spain, as defined by tax regulations.
In addition, the operational centers of companies receiving such aid must be located in Spain.
The following entities are not eligible to receive funding:
The guarantee will be released once the final certification has been issued following the project’s completion, in proportion to its results and, if applicable, after the beneficiary has remitted any required refunds.
OTHER REQUIREMENTS
In any case, this is an eligibility requirement—failure to meet it results in exclusion—but it must be met throughout the entire duration of the project.
If an applicant submits more than one project in response to the call for proposals, this criterion will be evaluated in conjunction with all submitted proposals, and projects will be eliminated based on the scores received for the remaining evaluation criteria, starting with those with the lowest scores, until it is determined whether or not any of the criteria listed above have been met.
When subcontracted work exceeds 20 percent of the grant amount and that amount exceeds 60,000 euros, subcontracting is subject to certain requirements. For these purposes, it is expressly prohibited to split a contract in order to reduce its value.
The scope of the activity to be subcontracted must be defined, including the tasks to be performed, the scope of the work, and the cost estimate, as well as the justification for the need for such subcontracting.
Contracts with individuals or legal entities affiliated with the applicant under the terms of Order ETD/653/2022is not permitted unless (i) prior express authorization is obtained from the granting authority and (ii) the eligible amount does not exceed the cost incurred by the related entity. Such authorization would be requested, if applicable, following the publication of the decision granting the aid.
It is important to note that contractors will be liable only to the beneficiary, who will assume full responsibility for the implementation of the subsidized activity vis-à-vis the government.
ELIGIBLE COSTS
Those that are consistent with the nature of the subsidized activity, are strictly necessary, and are performed, paid for, and documented in a timely and proper manner:
Indirect costs include supplementary overhead costs and other additional operating expenses that, while not directly attributable to a specific subsidized activity, are necessary for that activity to be carried out.
Activities carried out after the grant application is submitted will be eligible for funding.
At ELZABURU, we have professionals who are ready to assist you and guide you through the application process for these grants and help make your most innovative projects a reality.
Author: Sara Isabel Tortosa
The year 2021, which was particularly intense in every respect, culminated in one of the most widely publicized reforms: the labor reform approved by the Council of Ministers through Royal Decree-Law 32/2021, dated December 28, on urgent measures for labor reform, the guarantee of job stability, and the transformation of the labor market ( “RD-Law 32/2021”), which took effect on December 31, with a three-month grace period for certain provisions to allow companies to adapt to the new regulations; this grace period ended on March 31, 2022.
The impact of the new labor framework is not uniform across all sectors, due to their differing characteristics. In particular, the cultural sector had to wait until one week before the expiration of the aforementioned adaptation period for the government to approve the specific regulations that would allow for a consistent and proper implementation of the labor reform.
For that reason, on March 22, the following was approved: the Royal Decree-Law 5/2022, dated March 22, which adapts the special employment regime for individuals engaged in artistic activities, as well as the technical and auxiliary activities necessary for their performance, and improves working conditions in the sector (“RD-Law 5/2022”), which has been in effect since March 31.
Although in a tentative, fragmented, and incomplete manner—yet absolutely necessary—some of the recommendations set forth in the Report of the Subcommittee on the Drafting of the Artists’ Statute, which was presented to the Congress of Deputies in 2018, have been incorporated.
OBJECTIVES AND NEW PROVISIONS OF THE LABOR REFORM
The promotion of permanent employment and the limitation of temporary and precarious work stand as hallmarks of this reform. However, an indiscriminate crackdown on temporary work could weaken certain sectors in which intermittent and seasonal work are inherent to the nature of the activity itself, as is the case in the cultural industry.
Let's consider an audiovisual production, a concert or theater tour, or even a theater's own seasonal program—all of which are seasonal in nature, with temporality as their common denominator.
With that said, it will be easier to understand the full scope of the impact that Royal Decree-Law 32/2021 has on the hiring of personnel in the arts and culture sector and why it has been necessary to supplement it with Royal Decree-Law 5/2022:
It implements some of the recommendations contained in the aforementioned Report of the Subcommittee on the Drafting of the Artists' Statute through the following amendments:
This specialty is subject to specific regulations, which, in this case, are set forth inRoyal Decree 1435/1985, dated August 1, which regulates the special employment relationship of artists in public performances (“RD 1435/1985”) and which, by virtue of the legal principle of specialty, takes precedence over the general provision contained in the Workers’ Statute, the application of which is considered supplementary.
Without prejudice to the limitations set forth in the Workers’ Statute, Royal Decree 5/2022 thus establishes an ad hoc fixed-term contract for the cultural sector. However, it is worth noting that Royal Decree 1435/1985 has always provided for—and continues to do so under the new wording that Royal Decree 5/2022 has given to its Article 5—the possibility of entering into fixed-term employment contracts“to meet the company’s temporary needs; such contracts may be for one or more performances, for a specific period, for a season, or for the duration that a production remains on the bill,” with the recent amendment adding“or for the duration of the various phases of production.”
This regulatory framework, supplemented by collective bargaining, has established fixed-term employment in this sector through legislation, collective agreements, and case law.
However, it is important to highlight a few issues of particular practical relevance:
III. General Note on Temporary Contracts Under Royal Decree-Law 32/2021 and Royal Decree-Law 5/2022:
Fixed-term employment contracts must clearly and precisely state the grounds justifying the temporary nature of the work to be performed. Under no circumstances may such contracts be entered into for the purpose of replacing a permanent-intermittent contract or for the performance of the company’s structural functions or activities.
Failure to comply with this requirement would result in the contract being considered an indefinite-term contract from the moment it is entered into.
TEMPORARY IMPLEMENTATION OF THE NEW LABOR REGIME
Regarding Royal Decree-Law 32/2021:
Given the three-month moratorium that ended on March 31, 2021, the new legal framework applies to contracts signed on or after that date.
However, the reform includes, among others, the following transitional rules:
Regarding Royal Decree-Law 5/2022:
By Sara Isabel Tortosa