I.- EINLEITUNG
Am vergangenen 29. Februar ist das Königliche Dekret 1889/2011, vom 30. Dezember 2011, in Kraft getreten. Damit hat der Gesetzgeber das Funktionieren der Geistiges-Eigentum-Kommission gründlich geändert und die Erweiterung seiner Kompetenzen und Organen festgestellt.
This law is preceded by the modifications introduced by means of the Sustainable Economy Act, in Article 158 of the Intellectual Property Act.
The fundamental innovations with respect to the previous model are the extension of the functions of the “First Section” of the Intellectual Property Committee, as well as the creation of a “Second Section”.
II.- FIRST SECTION (MEDIATION AND ARBITRATION)
The “First Section” of the Committee will be composed of three members appointed by the Ministry of Culture, to include recognised experts in the field of Intellectual Property.
The functions of mediation and arbitration will correspond to the First Section. In the case of mediation, conflicts directly related to the collective management of Intellectual Property rights, the authorisation for distribution via cable or the lack of agreement between the distributors and the holder of the rights shall be settled with the consent of the parties.
In this procedure the parties shall endeavour to reach an agreement, each stating their arguments and providing the documents they consider necessary. The section will provide a proposition of resolution based upon such arguments and documentation. The parties will have three months to challenge the proposition and the procedure will have a maximum duration of six months. If the parties reach an agreement, or if they do not challenge the proposition of the section, the above-said proposition will have binding effects.
In the case of arbitration, conflicts between the holders of intellectual property rights and distributors, and between distributors and the broadcasting companies shall be resolved. It will be necessary to provide the arbitration agreement between the parties in order to submit the conflict to this type of procedure. As in the mediation procedure, in the arbitration procedure the parties will be able to provide those documents deemed appropriate. At the end of the procedure, which shall have a maximum length of six months, the Arbitration Court will pass one or several binding sentences.
III.- SECOND SECTION
The Second Section will be composed of four members chosen from the Public Administration.
This section will initiate procedures in relation to cases of infringement of intellectual property rights filed by the holder of the rights, when rights are infringed by the provision of a service of the information society. For such purposes, services of the information society are understood to be the contracting of goods and services electronically. The section will be able to adopt measures in order to interrupt the rendering of the service.
In the preliminary phase of the procedure the section will ascertain that the plaintiff is the holder of the intellectual property rights allegedly infringed. Then the section will identify who is responsible by means of the localisation of the service of the information society.
The opening of the procedure will result in summoning the person responsible for the service of the information society to proceed to withdraw the contents within the following 48 hours. Once this period has elapsed, the evidence phase and conclusions shall commence, which shall have a two day duration.
Finally, once the evidence phase is over, the Section has a term of three days to pass a judgement laying out the reasons for the decision (resolución motivada). If, from the above-said judgement, it is understood that there is an infringement of intellectual property rights, the same judgement shall order the withdrawal of the contents. In any case, the enforcement of the measures shall require previous judicial authorisation.
IV.- CONCLUSION
This modification extends the competences of the Intellectual Property Committee, establishing two sections in order to cover all possible conflicts, by means of a procedure, which is intended to be rapid and guarantist.
