On October 21, the Court of Justice of the European Union, and by decision , has ruled that compensation for private copying, known colloquially as "canon" is not legal, it is not in accordance with applicable European standards, and it is not fair, as levied indiscriminately on all, affecting both individuals and corporations . It really has been dared by the Management Entities to obtain compensation for private copying of legal persons, when the textConsolidated Intellectual Property Law, approved by unanimous practice of the Congress of Deputies in 2006, says that only you can apply the private copy compensation to individuals ...
But besides this, the statement said other very interesting things right and give full citizenship to oponíaa the implementation of the compensation for private copying in the area ; Terms imposed by English law and of course, those opposed to the broad and clearly unfair reading of the rule were being concerned. Among other thingsthe sentence reads:
a) No compensation can be applied all media and digital devices only applies to those who detract from the authors upon purchasing.
b) are exempt from the payment of compensation for legal persons, ie companies, professionals and governments, as not being natural persons do not enjoy the right to make private copying.
c) The compensation is set by purely economic injury to the authors who represent the private copying in the area and surroundingstances that mark the law therefore can not be a form of compensation for damages that may arise from digital piracy, or other illegal actions against copyright and material interests derived from their works.
d) Although you can proceed to compensation for private copying when there is economic harm, the court also said there was no obligation to pay compensation when damage is minimal, what needs to be assessed properly.
e) It is unnecessary to retroactively claim compensation for copy prIVAD by the management entities, when companies can not transfer these amounts to their clients. This implies the automatic review of all claims pending in the courts, and the judgments and payments in advance.
But although the ruling says this in black and white and it is necessary to study carefully all the implications before acting, I think they should consider other things in the process of reviewing legislation to be derived from this ruling. And there are some very interesting forums to obtain valid information for the study of new legislationIntellectual Property fairer, as is the FCFORUM 2010, to be held in Barcelona from October 28.
That said, I believe that the development of new legislation on intellectual property and compensation for private copying, at least, should take into account:
a) you can not legislate for lobbyists , regardless of EU legislation, the common sense or opinio N citizenship , since they can derive sentences like this before us, with all that involve the consequences for English society in general.
b) That every time you use less digital and the new paradigm is no longer based on discharge and local storage of content, will probably be based on ubiquitous access to digital content.
c) That there are other business models and other circumstances that must be taken into account and should have an adequate treatment in Intellectual Property Law and by the Management Entities Copyright . Forexample: the illegality of collecting works indiscriminately outside the directory managed by institutions, the existence of free licenses commercial and noncommercial, treatment for works to be protected, not available in the market, the publication is ny direct marketing without intermediaries content on the Web, works by authors who died, orphan works, the right to quote , etc.
d) To consider and in all its dimensions, what the UN says about .
Reactions toCase not have to wait and some government have already declared their intention to recover the sums which they believe have been wrongly charged, to which no doubt will join other legal persons, as professionals and companies . In the case of government, I believe that the request for reimbursement, if legally feasible, should be a required question, since that attempt to recover the amounts paid by an inappropriate law should ; to be a consecutiveence directly the principles of economy, effectiveness and efficiency provided by law for good Administracióny more now that money is not what is surplus to the government. Although it is also true that there are voices that claim caution before proceeding with the complaint , which certainly does not hurt, especially if a procedure is arbitrary save us litigation costs.
But as a first step, and pending clarification of the matter, I recommend, both to individuals and to legal, do not buy anything that is currently subject to the payment dand compensation for private copying without a breakdown on the invoice that concept, as stated in the current Copyright Act.
But we must not forget the view of this ruling, other "collateral damage" of this civic and unequal struggle against the "digital canon" as Internauta Association a conviction, which many consider unfair and that opposed by the same prosecutors, , being clearlycontrary to the Act to Promote the Information Society (LISI).
That said, we must remember that we have another issue now before Parliament, which besides being related with the same actors in the previous case, it may face the same formamide, if citizens turns to Europe for legal protection. This is the controversial Disposal second (DF2) the Law of Sustainable Economy (LES) , colloquially speaking, "Sinde Act."
sincerely believe that the timereflection, and before approving the DF2 against society and listening only to one party, consideration should be responsible for the parliamentary procedure to consider two articles in Economic Law ; to Sustainable related to improving the quality of legal regulation. In truth, however much I try, I do not see that being applied these interesting principles in the LES, during the investigation that is making the DF2 and is more controversial, I firmly believe that if implemented properly during the processing of the rules currently governing COMPENSATION &; Oacute n for private copying, probably not be in this unfortunate situation, so I recommend your careful reading and implementation without reservation of the same:
Article 4. Principles of good regulation applicable to the policy initiatives of the government.
1. In the exercise of legislative initiative, governments act in accordance with the principles of necessity, proportionality, legal certainty, transparency, accessibility, simplicity and efficiency.
2. Virtyou of the necessity principle, the policy initiative must be justified for reasons of general interest.
3. Under the principle of proportionality, the proposed policy initiative that must be the most appropriate instrument to ensure the achievement of the objective pursued, after finding that there are less restrictive and less distorting which attain the same result.
4. To ensure the principle of legal certainty, the powers of legislative initiative is exercised in a manner consistent with the rest of the system to generate a frameworkstable and predictable policy, creating an environment of certainty that facilitate the work of citizens and the adoption of economic decisions.
5. Applying the principle of transparency, the objectives of the regulacióny its justification must be clearly defined.
6. To ensure the accessibility principle, establish the mechanisms for consultation with stakeholders to encourage their active participation in the rulemaking process and tools simple and universal access to existing regulations .
7. The principle of simplicity requires that any regulatory attend to the achievement of a regulatory framework simple, clear and not very dispersed, to provide knowledge and understanding of it.
8. Applying the principle of effectiveness, the policy initiative must start from a clear identification of the objectives pursued by establishing direct targets and avoiding unnecessary burdens and ancillary to the attainment of these ultimate goals.
9. In any case, public authorities shall endeavor to maintain a stable frameworktransparent and simplified as possible, easily accessible by citizens and businesses, enabling fast and simple knowledge of current legislation resulting from aplicacióny without further administrative burdens for citizens and companies that are strictly necessary to satisfy the public interest.
Article 5. Instruments of government to improve regulation.
To support the goal of improving regulatory quality and the application of the principles of sustainability and good regulation, AdPublic Administrations:
1. Drive prior analysis tools of policy initiatives to ensure that they take into account the effects of all they produce, in order not to create citizens and businesses from unnecessary or disproportionate costs, in relation n the general interest objective to be attained.
2. Take care the public hearing process in developing its regulatory projects, encouraging the participation of stakeholders in policy initiatives,with the aim of improving the quality of the standard. To do this given a sufficient time, pondrána available to interested parties all necessary channels of communication, especially through electronic means, and also provide adequate information to better assess the effects comprensióny expected policy initiatives.
3. Promote the development of post-assessment procedures of legislative action, featuring the establishment of appropriate information systems, monitoring and evaluation, N.
of the above, I believe that everyone involved in the processing of the LES must understand that DF2 is not an economic measure more entity referred to in the LES. The DF2 affects very negatively by the way, the fundamental rights of citizens and as in the previous case, request their protection in Europe and get it right, with all that that may entail. If final approval of the DF2, as with the current regulations governing compensation for private copying, it is more likely that citizens not to resign and seek justice in Europe as in this particular case is also very likely, giventhe content and scope of the DF2, which are in Europe that justice they seek. This, as is the case there would be another very difficult situation to resolve legal and could trigger the collapse of an already overburdened English Justice .
may after reading carefully the recommendations in the previous articles in the LES and the negative reaction that is taking the DF2 in English society, prudence is the best approach and Moreover, in a time when the circumstances arising from the current sentenceCourt of Justice of the European Union, regarding compensation for private copying, a need to change and in depth, a good part of the rules governing intellectual property in Spain. Therefore, the most logical and prudent to remove the DF2 of the LES, which incidentally, is a law which provides for other economic measures that should be of urgent application to exit crisis and therefore deserve different treatment quite different.
DF2 After removing the LES, does not mean that progress towards a new Intellectual Property Law modern, fair and we like to all citizens. Withsteelwork should take into account all recommendations and conclusions of the Parliamentary Subcommittee on Copyright . This Subcommittee, urged the Government to launch a broad social debate, with the intention to undertake a thorough reform and quiet of the Copyright Act that would allow full adjustment the digital age and the broader consensus.
Sincerely, apparently seen and after recent events, I believe that this is the only way to achieve an Intellectual Property Law that meets all of society and does not make a friction &; Oacute n social colicky in European courts, with all that it can be assumed, so all I can recommend at this time is prudent and the withdrawal of the DF2.
" Copyleft 2010 Fernando Acero Martín. Verbatim copying, translation and distribution of this article is permitted in Entire Any digital medium, Provided this notice is preserved. Quotation is allowed. "