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Royal Decree-Law 24/2021, of 2 November

Post | November 2021

Sofía Ramos

After several months, the long-awaited transposition of Directive 2019/789 has finally entered into Spanish law, via Royal Decree-Law 24/2001 of 2 November ("RD"). The Directive, and the Royal Decree, stems from the desire of European regulators to adapt the applicable intellectual property regulations to the new digital and cross-border uses of protected content.

Through this RD, new limitations to exclusive intellectual property rights have been introduced:

  • Text and data mining limitations, which allow the use of automated analytical techniques to analyse texts and data in digital format in order to generate information (e.g., patterns, trends, correlations) without requiring a permit from the rightsholder, as long as access to the creation/feature is lawful.
  • Limitation on the use of works and other subject-matter in digital and cross-border educational activities; Limitations concerning the conservation of cultural heritage. 
  • The pastiche exception, which allows characteristic elements of a particular work to be taken and combined with others in order to obtain an independent creation (a meme, for example) without requiring the prior authorisation of the owners of the original creations (as long as there is no risk of confusion or harm to the original work or its author). 

The RD has introduced new measures in order to facilitate the process of obtaining a license and to promote greater access to protected content. It allows managing entities to grant cultural heritage institutions non-exclusive permits, for non-commercial purposes, to exploit out-of-commerce works and performances, and that are in their permanent collection. It also foresees the exclusion from copyright protection of materials deriving from works of visual art in the public domain (e.g., merchandising in a museum).

The two most awaited aspects of the transposition are, without a doubt: the new liability regulations regarding the "online content sharing service providers ("PSPCCL", for its acronym in Spanish) and the new regulations applicable to content aggregators, allowing the relaunch of Google News (an online service closed since December 2014).

In relation to the new liability regulations, the Royal Decree includes updates established in European case law with regard to acts of communication to the public of protected works and performances carried out by users through service providers. 

Furthermore, the Spanish legislator has decided to specify the service providers ("PSSI", for its acronym in Spanish) that the Royal Decree refers to. It will be exclusively applicable to those whose main purpose is to store and grant public access to protected works and performances, either in large numbers or with a high level of audience in Spain, and that are uploaded by their users, organising and promoting them for direct or indirect profit (e.g., Facebook or Youtube). Certain PSSIs have been expressly excluded, such as providers of electronic communication services or online marketplaces (to whom the LSSI liability regulations will apply).  

The PSPCCLs are responsible for all communication carried out by their users, provided that they have not already obtained a permit from the rightsholders. Said permit must specify the uses to be carried out, except for commercial uses or those generating "significant revenue". If they have not obtained the required permit, they may avoid liability if they demonstrate that (a) they have made their best efforts to obtain the permit; (b) they have made their best efforts to ensure the unavailability of the works and performances; (c) and, in any event, they have acted expeditiously, upon receiving a sufficiently substantiated notice from the rightsholders, to disable access to the works and have made their best efforts to prevent any future uploads. Furthermore, they will be obliged to initiate any proceedings within 10 working days and all decisions must be made by human beings (excluding the use of technology or robots).

In relation to Google News, article 32.2 IPL relating to content aggregators and snippets has been amended. Rightsholders are required to obtain a permit for online use, unless single-word search tools are provided for non-commercial purposes and are strictly limited to providing results in response to queries previously made by a user in the search engine.
In addition, article 129a IPL, referring to the online use of press publications published before 6 June 2019, has granted editorial publishers and news agencies (i) the right of reproduction of their publications; and (ii) the right to make their publications available for online use by PSSIs. These rights may not be exercised against authors/other rightsholders, who may directly exploit their works and performances. These rights have been granted for a 2-year period, starting on 1 January of the following year from the publication. 

We will have to wait and see how these developments will be implemented in practice to see if they meet, to any extent, the needs of the new digital age while continuing to safeguard intellectual property rights.