- Xavier Gil Pecharromán
The Government has resorted back to the Royal Decree-Law to include in a rule a knead of directives, which had not been transposed in the deadline and that could be an economic bleeding due to the fines that Brussels could already impose.
We begin the review by analyzing the transposition of the 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 transmissionsof broadcasting organisms and broadcasts of radio and television programs.
These directives give legal response to the need to adapt intellectual property rights, to the new changes arising from digitalization.
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Thus, the new standard expands the catalog of limits that excludes the mandatory authorization of the rights holders for the use of the corresponding works and protected benefits.In this sense, the new mining limits of texts and data are highlighted for both scientific and commercial use that need the treatment of large amounts of information to acquire new knowledge and discover new trends, being one of the key elements of the business in the network;However, this limit decisively supports the research and innovation sectors.
Recognition of rights to press editors
It is important to highlight the recognized right to press editors, already existing in Spanish law as a right assigned by the press authors, and that has been modified to adapt it to the directive that is transposed.
Thus, it is established in the new standard that the authorization of the holder of intellectual property rights for the reproductions of works and other legitimate accessible benefits carried out for text and data mining purposes will not be required, except if the rights holdersThey have expressly reserved the use of works to mechanical reading means or other means considered suitable.
In this last assumption, the rights holders are authorized to apply measures that guarantee the safety and integrity of the data and databases in which the works are stored.However, the law itself does not admit that these measures can go beyond what is necessary to achieve this objective.
On the other hand, the authorization of the author of a legally protected database will not be needed and that has been disclosed, in the case of reproductions and extractions of legitimate accessible works for text and data mining purposes.
Intellectual property specialists, however, wonder what is the limit for the benefit of research agencies and institutions responsible for cultural heritage, so that they can carry out, for scientific research purposes, text mining and data from works of works of works of worksand other benefits to which they have lawful access, according to the blurred terms of the directive.
What is meant by press publication?
The new standard understands by press publicregularly periodic or updated under a single title, such as a newspaper or a magazine of general or special interest.And on the other hand, that aims to provide the general public with information on news or other issues, and, in addition, it is published in any media for initiative and under the responsibility of the publishing house and the control of a service provider.
Activities excluded from the benefits of the press
The rights to press editors will not be applicable to the private or non -commercial use of publications by individual users;to the acts of hyperlink;to the use of loose words or extracts very short or little significant, both from the quantitative and qualitative point of view, by the service providers of the Information Society when this online use does not harm the investments made by publishers and agenciesof news for the publication of the contents and does not affect the effectiveness of the rights recognized in the present
Nor is it applicable to literary content that is not a press publication;to scientific or academic periodic publications;To the web, as blogs, which provide information as an activity, per without responsibility and editorial control of a provider such as those who characterize a news editorial.And, finally, to the contents whose use is protected by an exception or a limit to copyright.
Legitimate data extraction from a database
The legitimate user of a database, whatever the form in which it has been made available to the public, can, without authorization from the manufacturer of the base, extract and reuse a substantial part of the content of the same, when it comes toReproductions and extractions of legitimate accessible works for text and data mining purposes.
Transformation of a work disclosed to create a new
Determines the norm that does not need the authorization of the author or the rights holder The transformation of a disclosed work that consists in taking certain characteristic elements of an artist's work and combining them, so that they give the impression of being an independent creation, alwaysthat does not imply a risk of confusion with the original works or benefits or damage to the original work or its author is inferred.This limit will also be applicable to different uses of digital.
Authorization to market protected rights
It is considered that service providers to share content online perform an act of communication to the public or made available to the public when they offer access to works or benefits protected by intellectual property rights that have been loaded by their users.
Consequently, service providers to share online content must obtain prior authorization from the holders of the rights referring to public communication acts, to carry out their exploitation.
The negotiation of these authorizations will be carried out in accordance with the principles of good contractual faith, due diligence, transparency and respect for free competition, which excludes the exercise of domain position.
When a service provider to share content online requests and obtains an authorization for this purpose, it will also include, under the same conditions, the acts carried out by users of said services, provided that they do not act commercially or their activity does not generatesignificant income.
In the event that the head of the aforementioned public communication rights does not grant authorization, the service providers to share online content will be responsible for unauthorized acts of communication to the public, including the provision of works and other benefits protected by Intellectual Property Rights.
To avoid this responsibility they must demonstrate that they have made their greatest efforts to obtain an authorization, and, their greatest efforts to guarantee the unavailability of the works and benefits on which the rights 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 expenditively upon receiving a sufficiently motivated notification of the rights holders, to disable access to the works or other benefits notified or to withdraw them from their websites, and havemade your greatest efforts to prevent them from being loaded in the future
Live content
In relation to live content, providers to share online content must disable their access or withdraw them from their website during broadcast.
Right holders may exercise legal actions to restore their property damage, such as unfair enrichment action.To determine if the provider has fulfilled his 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 benefits loaded by usersof the service, and the availability of adequate and effective means and their cost for service providers.
Analytical data appointment
Cooperation between online service providers and rights holders will not prevent usersParody or Pastiche.
Obligations Supervision
Service providers to share content online will not have a general supervision obligation.
They must provide rights holders to request appropriate, semiannual information about the operation of their practices.
Also, when licensed agreements are held, they will provide information on the use of the contents contemplated by said agreements between service providers and rights holders.
Claim mechanism
The First Section of the Intellectual Property Commission will exercise the functions of mediation or arbitration in the litigation related to the access and withdrawal of works.Claims will be processed within a period not exceeding ten business days and decisions to disable access to charged or withdrawal content will be subject to examination by people, that is, without automated robot intervention or other analog.
Service providers to share content online will establish a agile and effective claim and resource mechanism.
The works and benefits that are subject to a claim procedure and their appeal should not be kept accessible to the service of the provider while this procedure is definitively resolved.
In the event that the rights holders request that access to specific works or benefits be disabled or that such works or benefits be withdrawn, will duly justify the reasons for their application.
Measures for press editors and information agencies
Publishing publishers and news agencies established in the Spanish territory, when they publish press, will have the exclusive right to direct or indirect, provisional or permanent reproduction, by any means and in any form, of the totality or part, as well asThe exclusive right to make available to the public, for wired or wireless procedures for the online use of their press publications by service providers of the Information Society.These rights may not be invoked against the authors and other rights holders and, in particular, by themselves, they will not deprive them of the right to exploit their works and other benefits regardless of the press publication to which they incorporate.
In addition, the reproduction or disposition of the public by third parties of any text, image, photographic work or mere photography that is subject to this right will be subject to authorization and will not exclude the civil or criminal liability of the third user who could eventually be derivedof the unauthorized use of the published content.
Press publications editorials and news agencies may authorize the exercise of these rights to service providers.The negotiation of the authorizations will be carried out in accordance with the principles of good contractual faith, due diligence, transparency and respect for the rules of free competition, excluding the abuse of domain position in negotiation.
This authorization will be collected in an agreement concluded for this purpose with the service provider, respecting editorial independence;focusing on press products exclusively.And what is fundamental: the service provider must inform the editorial of the main parameters that govern their classification of the contents and their change.
