In its recent judgement issued on the 2nd of June 2022, the Second Chamber of the Supreme Court defined the scope of crimes relating to intellectual property.
The judgement tackles a very well-known phenomenon that has spready widely over the past decade: the rebroadcasting or ´streaming´ of sports fixtures, and the way this behaviour fits in with the crime established under Article 270 of the Spanish Penal Code.
The facts of the case analysed by the High Court are as follows: the accused was broadcasting football matches, non-stop, in three (3) bars in his property. The National League of Professional Football, who held the exploitation rights for these matches, had not granted authorisation to the accused.
The judgement of the first instance condemned the accused as responsible perpetrator of a minor crime relating to the market and its consumers, carrying a sentence of two months´ worth of fines, with a daily quota of twelve (12) Euros. The Public Prosecutor´s Office and the National League of Professional Football appealed against this sentence, alleging that the facts dealt with in the case constituted a crime against intellectual property, as described under Article 270.1 of the Penal Code, without prejudice to the possible conflict with the offence for which the accused had already been convicted, relating to the market and its consumers.
And so, the Supreme Court established that, with regards to this case, there can be no doubt that audio-visual recordings and the transmissions by broadcasters form part of the material content of the right to intellectual property. The Supreme Court referred to Article 120, as well as those subsequent thereto, in the Royal Legislative Decree 1/1996, and also stated that public communication of these recordings is only legitimate if duly authorised.
Nor can there be any doubt, clarified the Court, that the infringement on these rights is criminally sanctioned.
However, the High Court denies that the rebroadcasting of sports fixtures in an establishment, without having been granted the rights that authorise their showing, fits into the type of crime of Article 270.1 of the Penal Code.
The High Court stated that the article in question would carry a prison sentence of between 6 months and 4 years, as well as 12-24 months´ worth of fines, for those who “, with the aim of obtaining an economic benefit, whether direct or indirect, and to the detriment of a third party, reproduce, plagiarise, distribute, publicly communicate or in any other form economically exploit, either partly or wholly, a literary, artistic or scientific work or production…”
Consequently, the Supreme Court deemed that sports fixtures can hardly fit in with the description of the rights of author protected in said article, that is to say: “a literary, artistic or scientific work or production.”
The Judgment points out that, if it had wanted that result, the legislator could have specified such conduct in the offence “it would have been enough to add the qualifier “sporting” to “literary, artistic or scientific productions”.
The chamber concludes by saying that “the omission of this term obliges the interpreter to forcefully integrate the sports events into the mould that the artistic, literary or scientific creations offer”, and that, therefore, the principle of legality must prevail.
In this way, the Supreme Court dismissed the writ of appeal and confirmed the judgement passed in first instance for the minor crime relating to the market and consumers.
Aleix Cuadrado
Vilá Abogados
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15th July 2022
