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The Culture Ministry, through its attached body the Intellectual Property Commission, will be judge and party when setting the rates that the management entities charge the media for copyright. Entities among which we find the Spanish Center for Reprographic Rights (Cedar) or to the General Society of Authors and Editors (Sgae).
Until now, the setting of prices had to be done through a Ministerial Order of Economic Affairs prior report of the National Commission of Markets and Competition (CNMC), but after the approval of the new regulations in Congress, only Culture will have the power to establish the criteria and limits on the basis of which these prices will be imposed.
This Thursday will vote in the Congress the bill approving measures to support the cultural and tax sector to face the economic and social impact of Covid-19, in which it has been pasted an amendment that eliminates the participation of the Ministry of Economic Affairs and CNMC in setting these rates.
Own Culture Ministry, through the socialist parliamentary group in the Senate introduced this amendment on September 15 when the project of measures against Covid was left for sentence in the Congress.
In practice, we are facing a modification to the Intellectual Property Law (TRLP), but without touching this normative body. A major change that is made taking advantage of a package of measures that has nothing to do with copyright management.
CNMC and Economy
This amendment has outraged all sectors, which They range from telecommunications operators, through television networks, radios and newspapers. The fact is that this rule leaves in the hands of a single department the setting of the prices charged by the management entities, which adds to the attributions that the company already had. Intellectual Property Commission to arbitrate if there was disagreement in the collection of these rights.
Historically, the media have criticized the prices that management entities are forced to pay, considered exorbitant in some cases. Sources consulted by this newspaper indicate that if the rate setting process is done exclusively from the culture Ministry, the comparative advantage of the management entities is evident and that the media will not have any opportunity in eventual arbitrations by the Intellectual Property Commission.
At this time, a Ministerial order about methodology for the determination of the general rates of the management entities, after a report from the National Commission of Markets and Competition (CNMC) and with the agreement of the Government Delegate Commission for Economic Affairs.
But with the new regulations, which in all probability will go ahead this Thursday with the votes of the PSOE and its government and investiture partners, it is left in the hands of the First section of the Intellectual Property Commission this whole procedure.
This body attached to the Ministry of Culture and Sports will become the body invested with the power to develop de facto, and directly, article 164.3 of the TRLPI, without the need for a tariff methodology developed in a previous ministerial order, as is the case now.
Ministerial order
In the development of the amendment, Culture indicates that it “considers appropriate” to replace the obligation to approve a methodology for the determination of general rates by “a more modern, flexible and adaptive mechanism that avoids hyper-regulation of the market, without falling into insecurity, or losing technical and legal rigor that the matter deserves “.
However, since DigitalES, The employers of the telecommunications operators that must also pay for intellectual property rights to the management entities, believe it is necessary to have a Ministerial order with the methodology for setting rates, “even though we understand that the current text of this Order is imprecise and can be improved. Since 2018 we have claimed and proposed numerous modifications in this regard.”
They also believe that introducing an amendment to a law of aid to the sector against Covid it is not the best way to introduce a change of this magnitude. “We believe that the modifications of the TRLPI should be channeled through an ordinary legislative procedure, which guarantees a full and calm parliamentary debate in the chambers. In addition, This would give all the sectors concerned the opportunity to participate in a public information or consultation process.“, they indicate.
From other sectors it is indicated that this amendment is a new example of the closeness and partiality that the ministry led by Miquel Iceta is having towards the management entities. This situation adds to the management that this portfolio is having in the transposition of the Community Directive on Intellectual Property.
In fact, as this newspaper has been able to confirm, the culture Ministry intends to process this directive by means of a bill thus delaying its entry into force, which should have occurred last June when the time limit set by the European Union.
Canon Temple
This community directive should repeal the Canon Temple and give way to the free management of intellectual property rights by press editors.
Brussels insists that the new Law is contrary to the inalienable right to charge news aggregators for their content, which establishes the Canon Temple approved in Spain in 2014. This, in addition, requires the collective management of these rights in the hands of a body determined by the law itself, in this case Cedar.
“We are working on a text that we want to draft shortly as a bill,” said a spokesman for the Ministry of Culture to EL ESPAÑOL-Invertia. The new text that is being finalized would be sent “in weeks” to Congress of Deputies, although the meaning of the regulations has not transcended.
However, any delay in this application favors Cedar since it allows you to buy time to try to keep the Canon Temple above the interpretation that can finally be made of the European directive. It would also allow the introduction of amendments by the different political groups to soften the regulations in their favor.
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