pts.
points
Spain has implemented the provisions of the directive by means of a Royal Decree-law, which was published on the 3rd of November 2021.
Procedure:
Spain has implemented the provisions of the directive by means of a Royal Decree-law, which was published in the Official Gazette on the 3rd of November. Apart from an initial public consultation round in late 2019 there was no structured input from civil society and the Royal Decree-law was passed without the ability for civil society or the Spanish Parliament to provide feedback.
Article 17:
The Spanish implementation of Article 17 is one of the worst implementations so far. It contains no specific ex-ante safeguards against overblocking and instead requires that disputed uploads remain blocked until the conclusion of the complaint and redress mechanism. Instead of narrowing down the definition of OCSSPs it lowers the thresholds for platforms to qualify and it does not contain any collective redress mechanism for users.
Other:
The Spanish implementation of the education exception is not subject to remuneration nor to license availability, but it carves out completely certain categories of works (musical scores, single-use works or compilations or groupings of fragments of works, or isolated works of a plastic or figurative photographic nature) and it only covers uses made by teachers (and not by students).
Spain has also implemented Article 14. Until now, Spain was one of the EU member states that afforded protections to reproduction of public domain works, which allowed many of Spain's most notable museums to claim copyright over digital reproductions of Public Domain works.
The Spanish implementation of the press publisher right includes all the limits foreseen in the DSM Directive: it clarifies that the new right doesn’t apply to scientific and academic publications, to websites such as blogs; to the use of individual words and very short extracts to private or non-commercial uses by individual users, to acts of hyperlinking and to the uses that are covered by the exceptions and limitations to copyright laid out in the national law; that the right cannot be invoked against uses authorized by a non-exclusive license nor against the use of public domain works; and the right is subject to the exceptions and limitations to copyright laid out in the national law. Nevertheless the implementation somewhat expands the scope of the new right, since: it mandates that the use of single words or very short or insignificant extracts must not not prejudice the investments made by publishers of press publications and news agencies for the publication of the content and must not affect the effectiveness of the right; and it mandates that the reproduction or making available to the public by third party users of any text, image, photographic work or mere photograph which is the subject of this right shall be subject to authorisation and shall not exclude the civil or criminal liability of the third party user which may arise from the unauthorised use of the published content.
Bonus:
The Spanish implementation does get a bonus point for the introduction of a stand alone pastiche exception that is not limited to digital uses.
Spain is the 6th Member State to fully implement the DSM directive into national law. Spain has done so by means of a Royal Decree-law (RD-law), which was published in the Official Gazette on the 3rd of November.
At the end of 2019 Spain organized a first round of public consultations on the directive. It was a free-feedback process with no draft text or specific questions to participants. There was a lack of transparency on the number of submissions and feedback provided by different interest groups. Meeting requests sent by civil society representatives to the government have been left unanswered, while other interest groups have been able to meet with the government. Invitations to the Ministry of Culture to take part in civil society events have also been ignored.
In the Summer of 2021 the Ministry of Culture announced the intention to implement the directive by decree, which was published on the 3rd of November 2021 without any ability for civil society or the Spanish Parliament to provide feedback .
On substance the Spanish implementation is highly problematic. In both Articles 15 and 17 the Ministry of Culture has taken liberties with the text to make the provisions more rightholder friendly. The implementation of Article 17 contains no specific ex-ante safeguards against over blocking and instead requires that disputed uploads remain blocked until the conclusion of the complaint and redress mechanism.
On the positive side the Spanish implementation of the new educational exception is not subject to remuneration nor to the availability of licenses, and the implementation law introduces a new, free standing, pastice exception into Spanish copyright law. Finally, the transposition of article 14 is especially welcome here, since it removes the legal basis for the widespread practice of claiming copyright in reproductions of public domain among Spanish museums.
Local partners: Our local partner has been Wikimedia Spain.
For more information please see our implementation tracking page for Spain.
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