The Government has resorted again to the Royal Decree-Law to include in a norm a jumble of Directives, which had not been transposed within the deadline and which could suppose an economic drain due to the fines that Brussels could already impose.
We begin the review by analyzing the transposition of Directive (EU) 2019/789 of the European Parliament and of the Council of April 17, 2019, which establishes rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organizations and the rebroadcasting of radio and television programmes.
These directives provide a legal response to the need to adapt intellectual property rights to the new changes that have arisen with digitization.
Most notable news
Thus, the new rule expands the catalog of limits that excludes the mandatory authorization of rights holders for the use of the corresponding works and protected benefits. In this sense, the new limits of text and data mining are highlighted, both for scientific and commercial use, which require the processing of large amounts of information to acquire new knowledge and discover new trends, being one of the key elements of business on the Internet. ; however, this limit decisively supports the research and innovation sectors.
Recognition of rights to press publishers
It is important to highlight the right recognized for press editors, which already exists in Spanish law as a right granted by press authors, and which has been modified to adapt it to the Directive that is being transposed.
Thus, it is established in the new regulation that the authorization of the owner of the intellectual property rights will not be required for the reproductions of works and other legitimately accessible services carried out for the purpose of text and data mining, unless the rights owners have expressly reserved the use of the works to mechanical reading means or other means considered appropriate.
In the latter case, the right holders are authorized to apply measures that guarantee the security and integrity of the networks and databases in which the works are stored. However, the Law itself does not admit that these measures may go beyond what is necessary to achieve this objective.
On the other hand, the authorization of the author of a legally protected and disclosed database will not be required in the case of legitimately accessible reproductions and extractions of works for text and data mining purposes.
Intellectual property specialists, however, wonder what is the limit for the benefit of research organizations and institutions responsible for cultural heritage, so that they can carry out, for scientific research purposes, mining of texts and data of works of works and other benefits to which they have lawful access, in accordance with the blurred terms of the directive.
What is meant by press release?
The new norm understands press publication as a compilation composed mainly of literary works of a journalistic nature that also includes other types of works, in particular photographs and videos, or other benefits, and that, on the one hand, constitutes a unitary body published in a periodically or regularly updated under a single title, such as a general or special interest newspaper or magazine. And on the other hand, whose purpose is to provide the general public with information on news or other topics, and, in addition, is published in any communication medium on the initiative and under the responsibility of the publisher and the control of a service provider.
Activities excluded from press benefits
Rights for press publishers shall not apply to private or non-commercial use of publications by individual users; to the acts of hyperlink; the use of single words or very brief or insignificant extracts, both from a quantitative and qualitative point of view, by information society service providers when this online use does not harm the investments made by publishers and agencies of news for the publication of the contents and does not affect the effectiveness of the rights recognized in this
Nor is it applicable to literary content that is not a press publication; to scientific or academic periodicals; to websites, such as blogs, that provide information as an activity, but without responsibility and editorial control of a provider such as those that characterize a news publisher. And, finally, to content whose use is protected by an exception or a limit to copyright.
Legitimate extraction of data from a database
The legitimate user of a database, regardless of the form in which it has been made available to the public, may, without authorization from the manufacturer of the database, extract and reuse a substantial part of its content, when it is of legitimately accessible reproductions and extractions of works for text and data mining purposes.
Transformation of a published work to create a new one
The rule determines that the transformation of a disclosed work that consists of taking certain characteristic elements of an artist’s work and combining them, in such a way that they give the impression of being an independent creation, does not require the authorization of the author or the owner of rights, provided that does not imply a risk of confusion with the original works or services or infer any damage to the original work or its author. This limit will also be applicable to uses other than digital.
Authorization to market protected rights
Providers of services to share content online are considered to carry out an act of communication to the public or making it available to the public when they offer access to works or services protected by intellectual property rights that have been uploaded by their users.
Consequently, providers of services to share content online must obtain the prior authorization of the holders of the rights referred to acts of public communication, to carry out their exploitation.
The negotiation of these authorizations will be carried out in accordance with the principles of contractual good faith, due diligence, transparency and respect for free competition, which excludes the exercise of a dominant position.
When a provider of services to share online content requests and obtains an authorization for these purposes, this will also include, under the same conditions, the acts carried out by users of said services, provided that they do not act with a commercial nature or their activity does not generate significant income.
In the event that the holder of the aforementioned public communication rights does not grant authorization, the providers of services to share content online will be responsible for unauthorized acts of communication to the public, including the making available of works and other benefits protected by Intellectual Property Rights.
To avoid this responsibility, they must demonstrate that they have made their best efforts to obtain an authorization, and their best efforts to guarantee the unavailability of the works and services on which the right holders have provided them with the relevant and necessary information.
In any case, the rule establishes that they will have to demonstrate that they have acted in an expeditious manner upon receiving a sufficiently motivated notification from the right holders, to disable access to the works or other notified benefits or to remove them from their websites, and have made every effort to prevent them from being uploaded in the future
live content
In relation to live content, online content sharing providers must disable their access or remove them from their website during the retransmission.
Rights holders may exercise legal actions to restore their patrimonial damage, such as the action of unjust enrichment. In order to determine if the provider has complied with its obligations and in light of the principle of proportionality, the type, audience and magnitude of the service must be taken into account, as well as the type of works or other services charged by the users. of the service, and the availability of adequate and effective means and their cost for service providers.
Analytical citation of the data
The cooperation between online service providers and rights holders will not prevent users from uploading and making available to the public content that does not infringe these rights or that is made for the purpose of quotation, analysis, comment, critical judgment, review, illustration, parody or pastiche
Supervision of obligations
Online content sharing service providers will not have a general obligation to monitor.
They must provide right holders who request it with adequate information, on a semi-annual basis, on the operation of their practices.
Likewise, when license agreements are concluded, they will provide information on the use of the contents contemplated by said agreements between service providers and right holders.
Grievance mechanism
The First Section of the Intellectual Property Commission will exercise the functions of mediation or arbitration in disputes related to the access and withdrawal of works. Claims will be processed within a period not exceeding ten business days and the decisions to disable access to the uploaded content or to remove it will be subject to examination by people, that is, without the automated intervention of robots or other similar means.
Service providers for sharing content online shall establish an agile and effective complaint and recourse mechanism available to their users in the event of a dispute over the disabling of access to works or services uploaded by them or their withdrawal.
The works and services that are the subject of a claim procedure and its appeal must not be kept accessible in the provider’s service while this procedure is definitively resolved.
In the event that rights holders request that access to specific works or features of theirs be disabled or that such works or features be withdrawn, they shall duly justify the reasons for their request.
Measures for press editors and information agencies
The publishers of press publications and news agencies established in Spanish territory, when they publish press, will have the exclusive right of direct or indirect, temporary or permanent reproduction, by any means and in any form, of all or part, as well as the exclusive right of making available to the public, by wired or wireless procedures for…