On November 2, the Government approved the Real Decreto-ley 24/2021 which transposes, among others, the Directive 2019/790, on copyright in the digital single market (DAMUD Directive).
The purpose of this regulation is for digital content to gain opportunities to compete in a single digital market.
The following new developments stand out, among others:
- The limit for the illustration of teaching and scientific research is expanded. Thus, article 68 recognizes that the mandatory authorization from the owners will not be necessary for the use of their works for educational purposes and by digital means, as long as they are carried out by regulated education teachers, by university staff and research organizations, in a secure electronic environment (for example, a virtual classroom) and indicating the source with the author's name whenever possible. Furthermore, these acts will be deemed to have been carried out in Spanish territory, even if their recipients are not located there.
- Another of the most important novelties is the obligation of intermediation service providers to adopt appropriate measures to guarantee their protection. They will be responsible for unauthorized acts of public communication, unless they demonstrate:
- That they have made their greatest efforts to obtain authorization and to guarantee the unavailability of the works.
- That they have acted expeditiously in response to notifications from rights holders for the withdrawal of works or services, preventing them from being uploaded again in the future.
- The right to adequate and proportional remuneration of authors and artists, performers or performers is recognized when they carry out exploitation contracts for their works, to compensate for the imbalance that occurs between them. To this end, an obligation of transparency is established for the holders of authorizations or assignees of exploitation rights, who must provide annually updated information on the exploitation of the work and the income generated and remuneration.
Other of the most important modifications to the Intellectual Property Law introduced by Royal Decree-Law are:
- Furthermore, in the event that, after the conclusion of the rights transfer contract, a manifest disproportion occurs between the initially agreed remuneration and the total income derived from the work, a review is introduced in article 47 of the LPI. inequitable remuneration, through which the contract may be reviewed.
- A right of revocation is introduced in article 48 bis, by which the author is granted the power to terminate the authorization or transfer, or put an end to its exclusivity, in the event that the work is not being exploited.
- The new wording of article 58 which stipulates that, through the publishing contract, in which the author assigns the right of reproduction and distribution to the editor, the editor acquires the right of equitable compensation of article 25.
- The modification of article 32 section 2, by which the so-called “AEDE Canon” of mandatory and inalienable collective management is eliminated. This fee affected content aggregators and search engines, which had to face it in favor of Spanish newspapers. The new provision does not establish any formalities regarding the management of this right and it will be the right holders who can negotiate the authorizations individually or through a management entity.
- Finally, publishers of press publications and news agencies are granted, through the inclusion of a new article 129 bis, an exclusive right of reproduction and making available to the public regarding online uses of their press publications. by information society service providers.
Authors: Mabel Klimt, Javier Fernandez-Lasquetty, Claudia Fernández y Clara Collado
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