Spanish Copyright Reform Enters into Force: Special Focus on Online Intermediaries

At the beginning of January, most of the controversial reform of the Spanish Copyright Act entered into force. As it has been widely publicised, the reform has introduced a compulsory levy for news aggregators, also known as “Google tax”. It has also strengthened the enforcement provisions by (i) giving more powers to the Copyright Commission – an administrative body which can order injunctions against internet service providers who infringe on copyright –; (ii) providing that ISP could be obliged in some situations to reveal the identity of a subscriber who allegedly engages in copyright infringement; and (iii) introducing for the first time the doctrines of secondary liability – inducement, contributory and vicarious liability – in the Copyright Act. Along with these amendments, other relevant changes in the law affect the private copy exception and its economic compensation, and the regulation of copyright collecting societies.
The ‘Google Tax’ is by far the most controversial provision (Art. 32(2)). It refers to the aggregation of non-significant fragments of informative or entertainment contents already published in periodicals or websites. The making available of those fragments – meaning probably headlines and snippets – by online aggregators will not require authorization by the publisher. However, the publisher will have the right to receive an economic compensation. This publisher’s right cannot be waived, and must be managed by a collecting society. In contrast, the making available of images will need authorization. On the other hand, search engines which merely provide links to the stories based on search queries will not be subject to the levy. As a consequence of this provision, Google decided to terminate its Google News service in Spain. The levy, however, will need secondary legislation to be practically implemented. 
The reform grants more enforcement powers to the Copyright Commission (Art. 158 ter). The Commission will target in particular websites which provide links to infringing works in a purposeful and massive way. Under the new enforcement powers, the Commission may require advertising, payment, and access service providers to stop providing their services to copyright infringers. 
Additionally, the reform amended the Civil Procedure Act (Art. 256(11)) to provide rightholders with a new enforcement tool.  This provision allows rightholders to apply for a court order forcing ISPs to disclose the identity of subscribers allegedly infringing copyright. In 2012, the European Court of Justice (ECJ) decided the Bonnier Audio case, which may have influnced this specific portion of the reform. In Bonnier Audio, the ECJ upheld national legislation providing for such a disclosure as long as it enables the national court “to weigh the conflicting interests involved, on the basis of the facts of each case and taking due account of the requirements of the principle of proportionality”.
Finally, the amendment introduces the notion of secondary liability for copyright infringement (Art. 138) into the Spanish legal system. So far, the Copyright Act – as generally understood by courts – covered only direct infringements. The new provision imposes liability on anyone who either 
  1. knowingly induces the infringement, or 
  2. knowing or having reason to know about the infringement cooperates to it, or
  3. having a direct economic interest in the results of the infringement has the ability to control the infringer’s conduct.
It remains to be seen how the courts will actually apply these principles, which are inspired to a large extent by the US doctrine of secondary liability for copyright infringement. This liability will not accrue where the intermediary is sheltered by  the eCommerce Directive mere conduit, caching, and hosting exemptions.
The text of the amending Act may be found here (in Spanish). A consolidated text of the Copyright Act reflecting the new amendments can be found here (in Spanish). 

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