English
1. Introduction
The Copyright Directive has not yet been implemented. There are two Bills, one of November 2002 and another one of January 2003, both of which unfortunately lack any explanatory memoranda. Taking into account that in March 2004 Spain will celebrate a general election, a final text could probably take some more time in being approved and it will likely differ from other prelegislative texts existing at present.
Before starting, I must clarify two questions. First, this work refers to the 2003 Bill, but whenever convenient I will refer to the 2002 Bill or to the present Spanish Copyright Act. Second, the two Bills modify the text of the Copyright Act, so I will use the Spanish Copyright Act’s section numbers used in both Bills in order to clarify things.
The norms on technological measures derive from Articles 172 to 174, which are included in Book III Title IV of the Spanish Copyright Act. This Title is called: “Protection of technological measures and of rights management information”.
2. Definition of Technological Measures
The new definition of “technological measures” is depicted in Article 172.3 1st. It is practically the same as the one given in the Directive. This precept establishes that a “technological measure” is: “any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorized by the rightholder”.
This definition includes both technological measures that hinder activities covered by the exploitation rights (e.g. a copy protection device) and measures which control access to a work (e.g. a set-top box). This is an important innovation, because to date copyright holders can only control acts covered by the restricted acts under copyright law, ithat is, acts of exploitation (reproduction, distribution, public communication and transformation), whereas acts of consuming or enjoyment of a work are free. After the implementation of the Copyright Directive, rightholders who apply technological measures will be able to control those latter acts as well. In occasions, this protection will coexist with penal sanctions, as we will see in the following paragraphs.
Article 172.3 1st only applies to technological measures that protect copyrigtable material, i.e. original creations which are no longer protected. However, in most occasions this will be the case as the requirements of originality are easily fulfilled and the right’s’ duration is quite extensive – it lasts until 70 years after the author’s death.
3. Effectiveness
Article 172.3 2nd offers a definition of “effective” technological measures almost identical to the one offered in the Directive. It states that: “Technological measures shall be deemed effective where the use of a protected work or other subject-matter is controlled by the rightholders through the application of an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject-matter or a copying control mechanism, which achieves the protection objective”.
It seems clear that the term “effective” does not require absolute reliability of a technological measure, because if it would its legal protection would not be meaningless – any circumvented technological measure would not be “effective” and, thus, not protected. On the other hand, it does not seem logical if the requirement of “effectiveness” were so low that any readily circumventable measure would be covered, although this interpretation is allowed by the Spanish provision. Consequently, the most prudent interpretation is that measures are “effective” when the average user cannot neutralize them. However, the application of this criterion by the Courts will probably not be easy.
4. Restricted Acts, Sanctions and Remedies
Circumvention
Article 172.1 establishes that rightholders can apply for any of the actions listed in Articles 138 ff. of the Spanish Copyright Act, which are summarized below, against anyone who, being aware of it or having reasonable grounds to know it, circumvents an effective technological measure.
Rightholders will be allowed to demand for the cessation of the illicit action carried out by the offender (e.g., forbidding the offender to resume the illicit action, to retire from marketing the illicit copies, to make unusable the equipment used, etc.) and the compensation of the material damages – which will consist of either the actual harm of the rightholder or the remuneration obtained by him if he had licensed the act of exploitation. Additionally, the moral damages, of which the valuation will depend on the severity of the injuries and the grade of illicit reproductions of the work.
The circumvention of technological measures will not be directly punishable under penal law. However, anyone that “has any means specifically designed to facilitate non-authorized circumvention of a technological measure” risks imprisonment from six months up to two years or a substantial fine. This provision will come into effect on
Circumvention Devices and Services
Article 172.2 copies the Directive literally. Thus, rightholders are protected against anyone who “manufactures, imports, distributes, sells, rents, advertises for sale or rental, or possesses for commercial purposes devices, products or components or who provides services which:
(a) are promoted, advertised or marketed for the purpose of circumvention of, or
(b) have only a limited commercially significant purpose or use other than to circumvent, or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of,
any effective technological measures.”
The actions available are the same that are available as regards circumvention which are described in the previous section. However, in the issue treated now, the damages rightholders suffer will generally be higher and, consequently, the compensation required will also be higher. Furthermore, criminal proceedings will likely be more frequent, due to their deterrent power. In particular, the meaning of Subsection b) seems unclear. When will a device have a “limited commercially significant purpose or use” other than circumvention? When will this criterion be fulfilled? If a technological measure is simultaneously used to hinder the reproduction of protected works and of non-original material or of material fallen into public domain, shall a device circumventing this measure than be allowed? If a computer program hinders to make back-up copies, can a mechanism allowing those copies than be sold and designed?
5. Exemptions and Exemption Procedure
The Copyright Law should balance the rightholders’ interests with those of others (e.g. right to freedom of information, justice, administration, scientific research) that in occasion clash. This traditionally has been one of the objectives of copyright and for this purpose the copyright exemptions were introduced. The question is whether rightholders are allowed to render ineffective the copyright exemptions by implementing technological measures.
The Spanish legislator does not give a single answer, but establishes three possible scenarios. First, according to article 173.4, with regard to works available on-line, the parties can establish by contract that the exemptions to copyright are not applicable. In other words, in this first assumption the technological measures can “overrule” the exemptions if the two parties agree on that.
Second, as regards some exemptions, Article 173.1 imposes to rightholders the obligation to facilitate usage covered by them. This obligation exists as regards the following exemptions: usage for judicial or administrative purposes; usage for disabled people; temporary copying by broadcasting organizations; and usage for research and for conservation purposes by certain not-for-profit establishments.
If rightholders do not voluntarily facilitate the exercise of those exemptions, beneficiaries of them are not allowed to circumvent the technological measures themselves. According to Articles 173.2 and 174, they must take the matter to the newly established “Intellectual Property Commission” (which is regulated in Articles 169 and 171 of the Spanish Copyright Act). This Commission will propose to the Minister of Education, Culture and Sports a scheme which will require rightholders to enable the exempted usage concerned. The Minister may subsequently adopt the scheme. Rightholders who do not comply with the requirements of the Minister’s resolution may be fined up to 6.000 Euro per day. Those proceedings are likely to be slow, devious, and dark, which will be to the disadvantage of the beneficiaries of the exemptions.
Third, all other exemptions (e.g., private copying, quotation, etc.) can be blocked by using technological measures.
6. Neighbouring rights & Database Right
The protection of technological measures is published in III Book of the Spanish Copyright Act (“Of the protection of rights recognized in this Law” ) and, consequently, it extends both to authors – Book I – and to holders of neighboring rights and producers of databases – Book II.
Remarkably, Article 173.1 provides that a producer of a database protected by the special database right must facilitate educational usage. However, a copyright owner to an original database does not need to enable such usage. Thus, the requirement for the producer of the database may be meaningless. Probably, this divergence is a result of the multiple changes introduced in the Spanish Copyright Act.
7. Technological Protection of Software
The regime of Art. 172 as regards circumvention and circumvention devices, discussed above, is not applicable to computer programs, as Subsection 4 of the provision states. Since 1993 technological measures applied to computer programs are protected by Article 102 c of the Spanish Copyright Act, which later on was reinforced by penal law in Article 270.3 of the Penal Code.
The protection that rightholders to computer programs’ can obtain by civil proceedings is weaker that the one offered to rightholders as regards other types of works. This is reflected in two aspects: firstly, only the distribution and the possession for commercial purposes of mechanisms to circumvent are unlawful under civil law, but not the act of circumvention; and second, a circumvention device must have the ‘sole purpose’ to circumvent without authorization the technological measure.
Paradoxically, protection under penal law is more extensive. Article 270.3 of the Penal Code punishes, apart from the manufacturing and distribution of devices, also the mere possession of any device specifically designed to neutralize any technical measure applied to a computer program with a prison sentence from six months up to two years or with fines from six to twenty-four months (in Spain the fine depends on the income of the offender). Note that the provision of penal law does not require a commercial purpose. Until now, there have been two rulings on this provision. The courts held that the provision of mod chips intended for Sony Playstation consoles was covered by it (Provincial Court of Baleares,
8. Miscellaneous & Controversial Subjects
As mentioned above, the Spanish legislator did not implemented the Directive in time. This is due to different reasons. Firstly, the pending Bill is not limited to the implementation of the Directive into Spanish Law, but also aims to deal with other subjects, such as the remuneration for private copying, the regulation of distinct holders of neighboring rights, and finally, collecting societies. Secondly, the Spanish legislator thought about changing the provisions of the Spanish Copyright Act concerning the exemptions (e.g, in the 2002 Bill an exemption related to educational usage was included, which was unknown in the Spanish system and in the 2003 Bill the wording of the private copying exemption was modified, although substantially the provision did not change). Thirdly, the Spanish legislator finds it very difficult to find an equilibrium between the interests of rightholders and those of users. Both consider the Bill dissatisfactory.
Some questions remain unsolved by the Bill. For instance, those questions related to peer to peer systems (will it be allowed to make a private copy of a pirated copy or of a copy of which the technological protection has been circumvented?) A second point, which will be object of future negotiations, is the levy that manufacturers of equipment and of digital recording media should pay. After a series of court rulings that force recordable CD manufacturers to pay a levy for this media, collecting societies have reached an agreement with the manufacturers of those products. Lately, collecting societies have discussed the issue of a levy on computer hardware. However, in this case the debate is just starting. It is unclear how it will affect in practice and use of technological measures. Another issue that should be clarified more is how conflicts between beneficiaries of exemptions to the intellectual property and rightholders who have used efficient technological measures are going to be resolved.
Author:
J. Javier González de Alaiza Cardona
Centro de Estudios de Derecho e Informática de Baleares (CEDIB)
Universitat de les Illes Balears
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All the relevant parts of the legislation are also available in English.
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