From the 1709 Blog's helpful Spanish friend Fidel Porcuna, a Senior Associate in Bird & Bird's Madrid office, comes this update on the private copying levy in Spain:
"On Sunday 8 December the definitive royal decree on private copying (Real Decreto 1657/2012) entered into force. An earlier public consultation on the draft proposal ended on 5 November. The essential points of the new proposal remain the same: there will be no collecting obligations for the industry and compensation will be met from the State Budget instead. This compensation will be calculated according to the harm caused to copyright owners in result of copying by individuals for private use, but not for professional or business use (after the CJEU so established in its Padawan ruling on the private copy compensation complying with the spirit of Directive 2001/29).
So what has changed from the proposal? A few important things, as follows:
(a) the right for reimbursement of copyright levies "unduly paid", presumably those in relation to digital devices directed to professional or business use;
(b) removal of the six month grace period for paying the due copyright levies that were accrued according to the now old law before 1 January 2012. Debtors seem to have the obligation to pay from the day the Royal Decree enters into force, with no extension on a timely basis.
(c) an express inclusion of books and works assimilated to books, meaning (awkwardly) periodical publications with cultural, scientific or technical content provided they are published under the same title, with a minimum periodicity of one per month and maximum one per semester, and they have at least, not 47, 28 or 19 but 48 pages;
(d) the express exclusion of electronic databases and software;
(e) an express indication that a private copy is one to which the user has legal access. The Royal Decree does not follow a more restrictive position by which the private copy shall only be the copy of the original work (as it was stated in the proposal draft of a new Spanish Copyright Act leaked some time ago to the press);
(f) the exclusion from the concept of 'private copy' of copies made in establishments whose business is the reproduction on demand, the copies for lucrative or collective use;
In addition, the Supreme Court rejected on 7 December -- the same day the Royal Decree was advertised in the Official Gazette-- the Spanish collecting societies' and the Attorney General's appeal against a 2008 Royal Decree developing the equitable compensation rules establishing the specific levies to be paid for digital devices for year 2009. The Appellate Court annulled this regulation because the Government passed it without the perceptive report of the Consejo de Estado, sitting as a State consultative board, and financial and economic reports. This makes definitive the fact that users of digital devices paid copyright levies according to an invalid regulation from 2008 to 2011.
(g) the increase of the percentage the collective societies are obliged to preserve for promotion, assistance and education programs;
(h) prohibition upon the use of compensation to increase salaries, bonus or other pecuniary benefits of their personnel;
(i) the express indication that control measures can be adopted by the Government to evaluate transparency and efficiency of the distribution of the compensation by collecting societies;
The consequences of this are still unknown, but probably collecting societies will press for the State's responsibility. If that happens, a strange situation will occur: (i) user pays undue copyright levy to collecting society, (b) user claims reimbursement of undue copyright levy from collecting society, (c) collecting society claims to the State damages, and (d) State (i.e. all users) pays damages to collecting society".
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