On November 2, the government approved Royal Decree-Law 24/2021, which transposes, among other things, Directive 2019/790 on copyright in the digital single market (the DAMUD Directive).
The purpose of these regulations is to provide digital content with greater opportunities to compete in a single digital market.
Notable among the new features are the following:
- The scope of the exception for educational and scientific research purposes is expanded. Thus, Article 68 recognizes that prior authorization from copyright holders will not be required for the use of their works for educational purposes via digital media, provided that such use is carried out by teachers in the formal education system, by university staff, and by research organizations, in a secure electronic environment (such as a virtual classroom), and that the source is cited with the author’s name whenever possible. Furthermore, these acts shall be deemed to have taken place on Spanish territory, even if the recipients are not located there.
- Another of the most important changes is the requirement that intermediation service providers take appropriate measures to ensure the protection of such content. They will be liable for unauthorized acts of public communication, unless they can demonstrate:
- That they have made every effort to obtain authorization and to ensure that the works are not available.
- They have acted promptly in response to notices from rights holders requesting the removal of works or content, preventing them from being uploaded again in the future.
- The right of authors and artists, performers, or interpreters to adequate and proportionate remuneration when they enter into exploitation contracts for their works is recognized, in order to compensate for the imbalance that arises between them. To this end, a transparency requirement is established for licensees or assignees of exploitation rights, who must provide annually updated information on the exploitation of the work, the revenue generated, and the remuneration.
Other significant amendments to the Intellectual Property Law introduced by Royal Decree-Law include:
- Furthermore, in the event that, following the execution of the contract for the assignment of rights, there is a clear disparity between the initially agreed-upon remuneration and the total revenue derived from the work, Article 47 of the Intellectual Property Law (LPI) introduces a provision for revision due to unequal remuneration, pursuant to which the contract may be revised.
- A right of revocation is introduced in Article 48-bis, granting the author the authority to rescind the authorization or assignment, or to terminate its exclusivity, in the event that the work is not being exploited.
- The new wording of Article 58 stipulates that, through the publishing contract—in which the author assigns the right of reproduction and distribution to the publisher—the publisher acquires the right to equitable compensation under Article 25.
- The amendment to Article 32, paragraph 2, which eliminates the so-called “AEDE Levy”—a mandatory and non-waivable collective management fee. This levy affected content aggregators and search engines, which were required to pay it to Spanish newspapers. The new provision does not establish any formal requirements regarding the management of this right, and rights holders will be able to negotiate authorizations either individually or through a collecting society.
- Finally, through the addition of a new Article 129 bis, publishers of press publications and news agencies are granted an exclusive right of reproduction and making available to the public with respect to the online use of their press publications by information society service providers.
Authors: Mabel Klimt, Javier Fernández-Lasquetty, Claudia Fernández, and Clara Collado