On August 1, Royal Decree-Law 12/2017 entered into force in Spain, which modifies the revised text of the Intellectual Property Law, which means that the mechanism devised by the Executive for the satisfaction of the new digital canonwas released.
In this way, the
revision of the digital canon 2017
is based on the payment of the amount by distributors and manufacturers.
However, the great novelty that the new royal decree of the digital canon establishes in the Spanish legal system is the introduction of a regime of exceptions to said payment in certain specific cases.
However, before entering fully into the analysis it is necessary to elaborate a definition on the concept of canon,as well as to explain the cause of the promulgation of this modification by the decree law of the digital canon of the whole system.
Background of the Digital Canon in Spain
The private copying feeas a means of compensating authors for the damage caused by private copies of their works has existed since 1996,referring exclusively to copies for private use of cassette tapes or VHS.
At the dawn of the Internet age, with the emergence of CDs and DVDs, in 2003, the digital canon itself emerged., as a consequence of an agreement in the manufacturers and distributors of digital media -who voluntarily accepted the satisfaction of the canon-, and the Spanish management entities -which were forced to withdraw the judicial initiatives on the matter-.
Three years later, in 2006, a new version of the Intellectual Property Lawwas approved, which already contained mentions of the digital canon for private copying.
The fee to be paid, finally, was set by the relevant Ministries and the rates were published two years later: among others, we can highlight the 1.10 euros for mobile phones capable of playing files in mp3 format; that of 3.15 euros for the mp3 themselves; and as for storage devices, 12 euros for hard drives or 0.17 cents for CDs.
This fee was paid by the final consumer of the product and distributed by the management entities.
This model of digital canon was declared abusive and contrary to European regulations by the Court of Justice of the European Union and, in 2011, knocked down by the National Court due to procedural breaches attributable to the Government.
Shortly after, a substitute emerged: the inclusion of the rates to be paid within the items of the General State Budget.
This system, born in 2012, did not make anyone happy:neither the management entities, nor the associations of Internet users nor the European Union itself.
The Court of Justice of the European Union declared null and void the system in charge of the General State Budget, as it was proposed, for failing to comply with Directive 2001/29/EC. In the same vein, the Supreme Court declared the Royal Decree regulating the digital canon inapplicable and null and void.
A New Chapter: What’s New in Canon Digital 2017
The digital private copy compensation model takes up part of the previous one. It shall be satisfied by manufacturers and distributors of reproduction equipment, apparatus and media,including, for adaptation to European provisions, a system of exceptions and reimbursements to certain subjects.
As for the exceptions, the following are released from payment:
- Public Administrations
- Persons, natural and legal persons who, operating as final consumers, justifiably reason an exclusive professional destination.
- Those who have an authorization for their reproduction, through the appropriate certification.
On the other hand the refund works in cases where you are not exempt and may be requested by natural or legal persons operating as final consumers; prove an exclusive professional destination and that such equipment is not made available to private users, and must be reserved for use other than private copying.
On the other hand, a specific period is also granted for the creation of a legal entity that is responsible for the organization of what refers to the digital canon.
Regarding the amounts, a procedure is established, reviewable every three years, for its fixation, and will be approved within a maximum period of one year from the publication of the Royal Decree.
The rates set for the new 2017 digital fee, of a provisional nature, include, among others:
- 0.08 euros per non-rewritable disc and 0.10 when it is.
- 0.24 euros for USB sticks and memory cards.
- 6.45 euros for external hard drives, 5.45 for integrated ones.
- 3.15 euros for tablets.
- 1.10 euros for mobile phones.
However, it must be reiterated that these are provisional figures,so we will have to wait until next year to verify the exact figures.