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Article 172 Bill 2003. Circumvention and preparatory acts
1. Rightholders of any copyright can exercise the adequate legal protection, foreseen in Book III Title I of this Law, against those persons who circumvent any effective technological measures in the knowledge, or with reasonable grounds to know, that he or she is pursuing that objective.
2. Rightholders shall provide adequate legal protection against those who manufacture, import, distribute, sell, rent, advertise for sale or rental, or possess with commercial purposes devices, products or components or the provision of 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.
3. The expression "technological measures" means 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 authorised by the rightholder of any copyright.
Technological measures shall be deemed "effective" where the use of a protected work or other subject-matter is controlled by the rightholders through 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.
4. That planned in former paragraphs is not applicable to the technological measures used for the protection of computer programs, that will be subject to their own normative.
Article 173 Bill 2003. Limitations on intellectual property and technological measures
1. Rightholders of works and other subject-matters with effective technological measures shall make available to the beneficiaries of an exception or limitation provided in Articles 31 bis [Security, official Proceedings and Dissabilities], 36.3 [Ephemeral recordings of works made by broadcasting organisations], 37 subparagraph a) [Reproductin for the sole purpose of conservation and scientific research], 135.1 subparagraph b) [Extraction with educational or research purpose] and subparagraph c) [Extraction or reutilisation of Public Security and Official proceedings] the means of benefiting from that exception according to its finality, and only when the beneficiaries have legal access to the protected work or subject-matter concerned.
2. In the absence of voluntary measures taken by rightholders, including agreements with other parties concerned, rightholders shall take appropriate measures to ensure the accomplishment of the duty foreseen in the previous paragraph, the Ministry of Education, Culture and Sport shall impose the measures considered appropriate for its adequate satisfaction, by the proceeding established in the next paragraph.
3. The technological measures applied voluntarily by rightholders, including those applied in implementation of voluntary agreements with other parties concerned, and those applied in implementation of the measures taken by the Ministry of Education, Culture and Sport shall enjoy the legal protection provided in Article 172.1.
4. The provisions of the first and second paragraphs shall not apply to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.
Article 174 Bill 2003. Adoption of measures at the request of the Ministry of Education, Culture and Sport
1. In the case and for the purposes provided in Article 173 paragraph 2 of this Law, the benefitiaries of the limits concerned can request, by an association or a representative entity of their interests, the intervention of Intellectual Property Commission, who can also act court-appointed.
2. The Commission, after the standard proceeding stablished to the effect, will raise a ressolution to the Minister indicating the measures, that, in each case, should be taken by rightholders in order to facilitate the enjoyment of the exemption or exemptions concerned.
3. As regards the Commission proposal, the Ministry of Education, Culture and Sport will adopt the apropriate ressolution and will communicate it to those who have take part in the proceeding, giving them a period of accomplishment. Likewise, it can also be communicated to third persons and advertise it as considered apropriate. The Ministry’s ressolution will be directly subject of being contested in the competent jurisdiction.
4. If in the given period, rightholders would not accomplish the Ministry’s ressolution, they would be punished with fines reaching to 6000 Euros per day.
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Article 102 c) Copyright Law. Rights infringement
… It will be considered offenders (…) those who put into circulation or possess with commercial purposes any means which only use will be that of facilitating the non-authorised removal or neutralisation of any technic device used for protecting a computer program.
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Article 270.3 Penal Code (till
It will also be punished with the same penalty [prison from six months to two years or fines from six to twenty-four months] the manufacturing, putting into circulation and possession of any means especifically designed to facilitate the non-authorised removal or neutralisation of any technic device that has been used for protecting computer programs.
Article 270.3 Penal Code (from
It will also be punished with the same penalty [prison from six months to two years or fines from twelve to twenty-four months] those persons who manufacture, importe, put into circulation or possess any means especifically designed to facilitate the non-authorised removal or neutralisation of any technic device that has been used for protecting computer programs or any of the other works, interpretation and performances in the terms foreseen in the 1st paragraph of this Article.
Leticia Fuentes Ruiz, Scholarship holder of the Centro de Estudios de Derecho e Informática de Baleares, Universitat de les Illes Balears
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