Eurovision DSM contest
Spain has implemented the provisions of the directive by means of a Royal Decree-law, which was published on the 3rd of November 2021.
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.
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.
The Spanish implementation of the education exception is not subject to remuneration nor to license availability, but it only covers uses made by teachers (and not by students), and the wording and lack of references to the current law leave a lot of room for interpretation and legal insecurity. 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 somewhat expands the scope of the new right.
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.
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