Anteproject: Spanish Office for Copyright and Related Rights.

On July 11, the Ministry of Culture and Sports ("MCUD") proposed, and the Council of Ministers agreed to start the process of developing a Draft Law on the establishment of the Spanish Office for Copyright and Related Rights (hereinafter referred to as the "Draft").

On July 13, 2022, the text was published for public discussion and information on the MCUD website, and the deadline for submitting proposals was set from that date until July 21, 2022. However, this deadline seems quite short to receive proposals regarding the draft law. In any case, it will be difficult to know whether proposals are being submitted, and if so, their quantity and nature, as the MCUD does not apply active transparency in the process of public information about regulations, at least concerning intellectual property.

The project is based on the diagnosis that the current institutional structure is insufficient for an effective policy to promote and protect copyright and related rights, which is commensurate with the importance of this asset in the Spanish cultural sphere. According to the project, the expansion of the powers of the administrative body responsible for intellectual property has led to dysfunctionality, resulting in a weak position for Spain in this strategic policy, which in turn affects the Spanish economy and labor market, particularly the growth potential of the cultural industry, as it undermines Spain's image and position and hinders the adequate development of art and culture.

However, it seems excessive to believe that the institutional design of a government body with powers in the field of intellectual property has such an impact on the development of art, culture, and Spain's external perception in this area. The powers of the administration in the field of intellectual property are quite limited compared to, for example, the powers in the field of industrial property. Thus, unlike the rights of industrial property, copyright and related rights are not the result of administrative allocation, and their registration in the Registry does not have the same legal consequences as in the case of patents for inventions or trademarks.

Unlike personal data or competition protection, intellectual property protection is not based on an administrative sanction procedure conducted by an agency or administrative body: administrative law regarding intellectual property violations is limited to oversight and control over collective institutions.

Alongside this, there is a relatively recently established and limited administrative organization - the Intellectual Property Commission (IPC) with two sections: the first, which performs arbitration functions in a broad sense, and the second, which mainly operates through a legality restoration procedure to stop rights violations on the Internet at scale.

The current institutional structure, which is to be revised according to the Project, is contained in Royal Decree 509/2020 of May 5, which develops the basic organizational structure of the Ministry of Culture and Sports. According to this, the General Directorate for the Culture Industry, Intellectual Property, and Cooperation ("SGralPI") carries out functions in the field of intellectual property assigned to the General Directorate for the Culture Industry, Intellectual Property, and Cooperation, which, in turn, is subordinate to the General Secretariat for Culture and Sports. These functions are described in Article 4.1, points f/, g/, h/, i/, and j/ of Royal Decree 509/2020.

In any case, it is problematic to assume that no public figure has yet recognized the inconsistency of this institutional structure or suggested that the situation could be changed by creating an autonomous body. Therefore, it seems somewhat conditional to find a suitable place for this reform within the framework of the Recovery, Transformation, and Resilience Plan (Plan de Recuperación, Transformación y Resiliencia) as part of the project "Strengthening Copyright and Related Rights" (Refuerzo de los derechos de autor y derechos conexos) Component 24, which relates to "Enhancing the Value of the Cultural Industry."

Despite this continuity in the institutional structure, DM in the Project is trying to convince us that in recent years the powers and tasks of SGralPI have only been increasing, without any changes to its structure and ability to act. However, this increase in powers seems more apparent than real. Starting with the granting of SGralPI the status of a national authority in the field of abandoned works, which is indeed carried out in Article 2.3 of Royal Decree 224/2016 of May 27, which develops the legal regime for abandoned works contained in Article 37 bis of the Consolidated Text of the Intellectual Property Law (TRLPI), this right represents a practically low-priority task, consisting of verifying the registrations made by beneficiary organizations, limiting the removal of the status of abandonment of a work if the owner has decided to terminate this characteristic of the abandoned work, and the beneficiary organization has reported this to the European Union Intellectual Property Office (EUIPO) in case of disagreement between the owner and the organization. Furthermore, if the owner objects and demands fair compensation for the use of their work during the period it was considered abandoned, and there is no agreement between them and the relevant institution, SGralPI, at the request of the party, must refer the matter to the first section of the Intellectual Property Commission to determine the amount of this compensation based on the report submitted.

In any case, it cannot be assumed that SGralPI will be overwhelmed by reversals of the status of abandoned works and subsequent compensation requests from rights holders, as there are currently no registered abandoned works in the EUIPO database that SGralPI has reviewed as the national authority on these matters.

As for the new functions of the two sections of the Intellectual Property Commission, the Project likely refers to the new responsibilities recently assigned to the first section of the Commission in Article 194.5 of the TRLPI and to the second section of the Commission in Article 195.2 c) and d) of the TRLPI. The first involves cases of mediation and arbitration, meaning that the first section of the Intellectual Property Commission can only act after both parties voluntarily present their case. Thus, these are powers on paper that do not necessarily lead to actual interventions.

Since the revival of this body in 2016, it has considered only two mediation procedures and no arbitration cases.

In accordance with the statements in the DM regarding the increasing role of the Internet and the information society, as well as artificial intelligence and other new digital technologies, an increase in regulatory activity at the EU level (working groups of the State Council on copyright, EUIPO) and international level (World Intellectual Property Organization [WIPO]) can be expected, which requires greater participation in committees and working groups in the EU and relevant international intellectual property bodies. However, there are currently no legislative initiatives in these areas that address the challenges described in the Project. At the EU level, it should be noted that a very complex regulatory process related to Directives 2019/789 and 2019/790 has recently been completed, which established the current level of harmonization in the field of copyright and related rights. New initiatives in this area will not emerge anytime soon. As for WIPO, regarding its Standing Committee on Copyright and Related Rights, it can be said that it is working on a possible treaty concerning broadcasting organizations and other related limitations and exceptions, but nothing specific related to the areas mentioned in the Project is currently being discussed.

But if it's surprising that the Project refers to a non-existent regulatory process at the international level, it's even more surprising that it remains silent about the national regulatory process concerning the development of rules within the country, as this falls outside the office's jurisdiction and remains under the authority of the same MCUD bodies that dealt with this area previously. This is a matter that, unlike the issues mentioned in the Project, could be said to require more attention and resources (regardless of whether they are located in the office or remain with the main MCUD bodies), judging by the dismal balance of MCUD in exercising its powers in the field of intellectual property. However, it seems that the Project has failed to present these needs convincingly enough.

The project states: "The inability to have and manage one's own budget, despite having its own income, complicates not only the management of these revenues but also the execution of expenses that would be necessary to adapt various areas of SGralPI to the needs of the industry, and thus hinders the use of appropriate resources, such as advanced and tailored document management systems or natural language processing systems for the sections of the Intellectual Property Commission." If these are all the needs of SGralPI, they seem minor and non-urgent, and it is hard to believe that the establishment of an autonomous body is necessary to meet them. Rather, we should think that regular ministries can equip themselves with advanced document management programs and computer software, including natural language processing systems, if they are truly needed for the functioning of administrative bodies in the field of intellectual property.

In conclusion, the facts do not support the reasons provided in the Project to justify the need for the establishment of the Office. When reading EdM, one recalls the explanations that Tancredi Falconeri gave to Prince Salina in "The Leopard": "For everything to remain the same, everything must change," a phrase that has become emblematic of the cynical acknowledgment that it is advisable to implement some visible transformations in order to reinforce the status quo.