Liberalisation extended to collective management of IP rights

Law 25/2009 (22nd December 2009) has amended the Copyright Law in regard to the modification of certain laws in order to adapt them to the Law on Free Access to Service Activities and the Exercise Thereof (Official Journal number 308 of 23rd December 2009, available at www.boe.es/boe/dias/2009/12/23/pdfs/BOE-A-2009-20725.pdf).

The reform was carried out within the framework of the transposition into Spanish law of the EU Directive on Services in the Internal Market (2006/123/EC). In the other EU member states, the implementation of this directive has not given rise to any modifications to copyright law. However, in Spain, the legislature has considered that the liberalisation of the provision of services should also be extended to the collective management of IP rights.

A study of the amendments to the Copyright Law shows that the brunt of the modifications are unrelated to liberalisation of the collective management of IP rights. The reform is minor, limited in scope and even useless as it is not justified by the need to transpose the directive into Spanish law. The modifications to the Copyright Law are as follows:

• In respect of Article 147 of the Copyright Law on the requirements for the administrative authorisation of collecting societies, the reform clarifies that application of this requirement is restricted to legally incorporated societies “which have been established in Spain”. This means that it does not apply to collecting societies established in any other member state. Prior to the reform, there was no intention to apply the need for authorisation to collecting societies other than those established in Spain. Therefore, in this case the reform is superfluous. 
• Article 147 has also been reformed to clarify that the necessary authorisation from the Ministry of Culture is designed to guarantee “adequate protection for intellectual property”. This aim also justifies the absence of a for-profit nature in collecting societies, which is maintained as a defining characteristic thereof. 
• Article 148.1 regarding the conditions for the authorisation of societies specifies that the application for authorisation must be accompanied by “supporting documents which allow for verification of the concurrence” of such conditions. 
• Several changes have been made to Article 148.2 on the criteria to be taken into consideration by the administration when deciding to grant authorisation. Following the reform, the criteria are set out as follows:

“the capacity to carry out viable management of the rights entrusted, the suitability of its Articles of Association and of the material resources whereby it intends to achieve its aims, and the potential effectiveness of its management abroad, paying special attention to the higher purposes of general interest which constitute the protection of intellectual property.” 

• Law 25/2009 adds a new Section 3 to Article 148 of the Copyright Law. In accordance with this new section, “authorisation will be understood to have been granted if no resolution to the contrary is received within three months of submission of the application”. This is perhaps the most important reform introduced through Law 25/2009, as it represents the recognition of so-called "positive silence" regarding the administrative authorisation of collecting societies. That is, if authorisation is requested from the Ministry of Culture and the application is accompanied by all legally required documentation, but the ministry does not expressly respond to the request within three months of the date of submission, the law considers authorisation to have been tacitly granted.
• Before the reform, Article 151.2 established that a collecting society must include in its articles of association “its objective or aims, with a specification of the rights administered, provided that it may not conduct its activity outside the scope of the protection of intellectual property rights”. As a result of the reform, the scope of action for collecting societies has been expanded, as although the need for inclusion in the articles of association of “its objective or aims, which shall be the management of intellectual property rights, with a specification of the rights administered” has been maintained, the following has been added:

“Furthermore, activities other than the management of intellectual property rights may also be conducted, provided that said activities are related to the society’s cultural field and that they comply with the not-for-profit requirement established in article 147.” 

• Finally, Law 25/2009 provides new wording for Article 155.1 of the Copyright Law, but this does not alter the meaning of the article. Previously, Article 155.1 established that:

 “Collecting societies shall promote welfare activities or services for the benefit of their members, either themselves or through other collecting societies, and shall arrange activities for the training and promotion of authors and performers."

After the reform, the precept states that:

“Collecting societies shall, directly or through other entities, promote welfare activities or services for the benefit of their members, as well as activities for the training and promotion of authors, performers and artists.”