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“Of the crimes relative to the intellectual property”, is the title of the Section I, of the Chapter XI, concerning the crimes relative to the intellectual and industrial property, to the market and the consumers, of the Title XIII, about the crimes against the patrimony and the socioeconomic order, of the Book II, which contains the crimes and their punishments, of the Spanish Penal Code (CP).
The current regulation is consequence of the reform of the CP by the Organic Law 1/2015 (LO 1/2015). According to its exposition of motives, the review of the crimes relative to the intellectual property consists in:
– “First, it is necessary to adjust the penal reply to the assessment of the gravity of the infringement committed and, with this end, it is set a broad penal framework which offers to the judge an adequate margin for adjusting the punishment to the gravity of the behavior.”
– “Secondly, to the typical current behavior consisting in reproducing, plagiarizing, distributing or publicly communicating, is added, for strengthening in this way the protection which it is wished to grant, to economically exploit in any other way a protected work or performance without the authorization of the owners of the intellectual property rights, being replaced, besides, the subjective element “profit-making intention” by the “intention of obtaining an indirect or direct economic benefit”, with which it is tried to include behaviors in which a direct benefit was not obtained, but it did obtain an indirect benefit. Are expressly typified behaviors by means of which are carried out infringements of the right of intellectual property from which derive grave prejudices: the easing of the commission of the above behaviors through the suppression or neutralization of the technological measures used for avoiding it; the avoidance or easing of the avoidance of the technological measures of protection of the intellectual property carried out with the end of easing to thirds the non-authorized access to them, when this behavior is executed with the intention of obtaining a direct or indirect economic benefit; and, lastly, the easing of the access or tracking of protected works or performance offered on internet in a non-authorized way.”
– “The review of the current regulation contains also the technical improvement of the typification of the manufacture and bringing into circulation of the means destined to ease the neutralization of the protecting measures of the intellectual property, or their possession with a commercial purpose, adjusting the terminology employed to the broader reflected in the Directive 2001/29/CE, as well as of the regulation of the aggravated cases.”
This Section I is made up of three articles: The article 270, where are described the typical behaviors; The article 271, an aggravated subtype of the previous, which contains the circumstances which motivate its application, and; The article 272, which establishes the rules for reckoning the civil liability derived from any of the typical behaviors. Let us now see in order and in depth each of these articles.
– Article 270:
The article 270 is the first of the articles which form the Section I concerning the crimes relative to the intellectual property, and as we previously pointed out, in it are described the typical behaviors which are considered a crime.
The article 270 says:
“Article 270.
1. Shall be punished with the punishment of imprisonment from six months to four years and fine from twelve to twenty-four months whoever, with the intention of obtaining a direct or indirect economic benefit and to the detriment of a third party, reproduces, plagiarize, distributes, publicly communicates or in any other way economically exploits, in whole or in part, a literary, artistic or scientific work or performance, or its transformation, interpretation or artistic execution fixed in any kind of medium or communicated through any means, without the authorization of the owners of the corresponding rights of intellectual property or of their assignees.
2. The same punishment shall be imposed to whoever, in the provision of information society services, with the intention of obtaining a direct or indirect economic benefit, and to the detriment of a third party, eases in an active way and non-neutral and without limiting itself to a mere technical treatment, the access or the tracking in internet of works or performances subject to intellectual property without authorization of the owner of the corresponding rights or their assignees, in particular offering ordered and classified listings of links to the works and contents referred before, although those links had been initially provided by the recipient of their services.
3. In these cases, the judge or court shall order the removal of the works or performances subject to the infringement. When through a website or information society service, are exclusively or predominantly spreading the contents subject to intellectual property to which are referred the previous points, shall be ordered the interruption of the provision of this, and the judge will be able to agree any preventive measure which has as object the protection of the rights of intellectual property.
Exceptionally, when there exists reiteration of the behaviors and when it is a proportionate, efficient and effective measure, could be agreed the blockade of the corresponding access.
4. In the cases to which is referred the first point, the itinerant or merely occasional distribution or commercialization shall be punished with a punishment of imprisonment from six months to two years.
Nevertheless, attending to the characteristics of the culprit and the scarce amount of the economic benefit obtained or which might have been obtained, always that any of the circumstances of the article 271 do not concur, the Judge will be able to impose the punishment of fine from one to six months or community service from thirty-one to sixty days.
5. Shall be punished with the punishments established in the previous points, in their respective cases, whoever:
a) Intentionally exports or stores copies of the works, productions or executions to which are referred the first two points of this article, including digital copies of them, without the referred authorization, when they are destined to be reproduced, distributed or publicly communicated.
b) Intentionally imports these products without such authorization, when they are destined to be reproduced, distributed or publicly communicated, whether they have a licit or illicit origin in their country of origin; nevertheless, the importation of the referred products from a State pertaining to the European Union shall not be punishable when these had been directly acquired from the owner of the rights in such State, or with its consent.
c) Favors or eases the commission of the behaviors to which are referred the points 1 and 2 of this article erasing or modifying, without authorization of either the owners of the rights of intellectual property or their assignees, the effective technological measures incorporated by them with the end of impeding or limiting their commission.
d) With the intention of obtaining a direct or indirect economic benefit, with the end of easing to third parties the access to a copy of a literary, artistic or scientific work, or to its transformation, interpretation or artistic execution, fixed in any kind of medium or communicated through any means, and without authorization of the owners of the rights of intellectual property or their assignees, avoids or eases the avoidance of the effective technological measures prepared to avoid it.
6. Shall be also punished with a punishment of imprisonment from six months to three years whoever manufactures, imports, brings into circulation or possesses with a commercial end any means mainly conceived, produced, adapted or made for easing the non-authorized suppression or neutralization of any technical device which has been used for protecting computer programs or any of the other works, interpretations or executions in the terms established in the first two points of this article.”
The first that we observe is that, the article is divided in six points: A first point, where is described the first of the typical behaviors, to reproduce, plagiarize, distribute, publicly communicate or in any other way to economically exploit, a literally, artistic or scientific work or performance, without the authorization of its owner or assignees; A second, which punishes whoever “eases in an active way and non-neutral and without limiting itself to a mere technical treatment, the access or the tracking in internet of works or performances subject to intellectual property without authorization of the owner of the corresponding rights or their assignees”; A third, which establishes the immediate consequence of the above behaviors, for the judge or court shall order the removal of the works or performances subject to the infringement, or when this is carried out through internet or a information society service, the judge or court shall order its interruption or even blockade; A fourth, which establishes the punishment for when the typical behavior described in the first point is carried out by itinerant or merely occasional distribution or commercialization; A fifth, which describes other four typical behaviors, related with the importation, exportation, storing, or elimination or avoidance of the technological measures which impede the commission of the above crimes, and; A sixth, which punishes whoever “manufactures, imports, brings into circulation or possesses with a commercial end any means mainly conceived, produced, adapted or made for easing the non-authorized suppression or neutralization of any technical device which has been used for protecting computer programs or any of the other works.”
And the second that we are able to observe is that, we are before a closed type, not a blank criminal statute, which is described with normative elements that shall be interpreted and explained according to non-penal norms, concretely in accordance with the Intellectual Property Act 1/1996, of 12 April (LPI), and the Information Society Services and Electronic Commerce Act 34/2002, of 11 July (LSSI).
Art. 270.1:
Let us start with the first of its points. The typical behavior described in it consists in, reproducing, plagiarizing, distributing, publicly communicating or in any other way economically exploiting a literary, artistic or scientific work or performance fixed in any type of medium or communicated by any means. Nevertheless, as we have previously remarked, the CP does not give us a definition on the scope of each of the behaviors punished, obliging us to make use of the LPI. Of the typical behaviors described in the article 270 CP, all are referred to the rights of exploitation of the author, with the exception of the “plagiarism”, which protects one of the faculties which are part of the “author´s moral rights”, the right to “demand the acknowledgement of his condition of author of the work” (article 14.3º LPI).
Let us now see, how the LPI describes each of these behaviors. According to the article 18 LPI, “It is understood by reproduction the direct or indirect, provisional or permanent fixation, by any means and in any way, of all the work or part of it, which allows its communication or the obtention of copies.”
On the other hand, according to the article 19 LPI “It is understood by distribution the making available to the public of the original or of the copies of the work, on a tangible medium, through its selling, renting, lending or in any other way.”
And according to the article 20 LPI “It is understood by public communication all act by which a plurality of persons can have access to the work without the previous distribution of copies to each one of them.”
On the contrary, the LPI does not give a definition of plagiarism, for obtaining it we must look at the jurisprudence of the Spanish courts. According to the Spanish Provincial Court of Ciudad Real´s resolution number 124/2023: “The plagiarism lacks a legal definition. In accordance with the Spanish Supreme Court´s sentence of 23 March 1999, we must understand by plagiarism all that which supposes to copy alien works in the substantial, being a mechanized activity, very little intellectual and less creative lacking all originality and the concurrence of genius or human talent.
The situations which represent plagiarism must be understood as those of identity, as well as those disguised, but which reveal, when stripped of the tricks and clothes which disguise them, their whole similarity with the original work, producing a state of appropriation and taking advantage of the creative labor, and alien intellective effort.”
To plagiarize is, in principle, to copy or appropriate to itself in the substantial of alien works.”
But, pay attention to the fact that the list of possible ways of commission of the crime is not closed, and after a first attempt of enumerating them, the first point of the article 270 continues, “or in any other way economically exploits, in whole or in part, a literary, artistic or scientific work or performance…”. Thus, we must understand that, all economic exploitation of a literary, artistic or scientific work or performance, will fit in the objective type of the crime against the intellectual property, regardless of the way in which this economic exploitation has been carried out. Moreover, the legislator, in its zeal for covering all the ways of commission continues and adds “or its transformation, interpretation or artistic execution fixed in any kind of medium or communicated through any means”. Like in the previous cases, the transformation of a work is considered by the LPI, as other right of exploitation of its author. The article 21 LPI says:
“Article 21. Transformation.
1. The transformation of a work comprehends its translation, adaptation and any other modification in its shape from which derives a different work.
When it is a database to which is referring the article 12 of the present Law shall be considered transformation too, the rearranging of it.
2. The rights of intellectual property of the work derived from the transformation shall correspond to the author of this, without prejudice of the author´s right of the preexisting work of authorizing, during all the term of protection of its rights over this, the exploitation of these results in any way and especially by its reproduction, distribution, public communication or new transformation.”
Hence, we must understand that, the intellectual property rights derived from the transformation of a work belong to the author of this transformation, but he shall be not able to exploit it without the authorization of the author of the preexisting work, during all the term of protection of his rights over this.
On the contrary, the interpretation or artistic execution of a work, must be understood as part of the right of public communication of the work, hence, in this case the legislator could have spared its express mention.
Thus far, we have analyzed the typical behaviors which can fulfill the objective type of the crime. But, not always that one of them is carried out, we should understand that a crime against the intellectual property has been committed, for it only will happen when they are carried out “without the authorization of the owners of the corresponding rights of intellectual property or their assignees.”
Reached this point, we are going to make a stop, for we have to clarify what can be the object of the crime. According to the article 270.1, this can be only a literary, artistic or scientific work or performance. This obliges us to return to the LPI, for trying to understand better what can fit in this concept. According to the article 10 LPI, “The object of intellectual property are all the original literary, artistic or scientific creations expressed by any means or medium, tangible or intangible, currently known or which may be invented in the future.” A definition which doubtlessly contributes to solve the mystery, but it is too broad for wholly solving it. As always in these cases, we are going to make use of an excerpt from the Spanish courts for ending with our doubts, it is from the Spanish Provincial Court of Barcelona´s sentence number 13288/2019: “We depart from the basis that the rights of intellectual property come from the human creation and are expressed in an object apprehensible by the senses; such consideration has driven to the material distinction between immaterial good (the creation) and the physical materialization of the creating idea (the object in which is materialized the creation), being in any case the object of protection of the right the work “literary, artistic or scientific” in the sense that, as authentic and broad definition of them, are granted by the articles 10 and following of the LPI. Such broadness drives to, in the ambit of the punitive law and for the sake of the legal security, this literary, artistic or scientific creation and the material object in which is represented, must have some characteristics without which is not possible the penal protection. These characteristics are the following:
1º) This must be a creation, in other words, an original idea in the sense that it does not previously pertain to another.
2º) Of a literary, artistic or scientific creation, of the defined in the LPI or “any of the works of the same nature”.
3º) It must be materialized in something physical and perceptible by the senses for without this materialization shall be impossible the penal protection; in this vain, it has been said with reason that the use of preexisting ideas cannot be regarded as this crime since the ideas are not susceptible of appropriation, but only the appropriation of the formal expression of them can have the consideration of an intellectual work protected by the LPI. In a greater degree, for, of a work penally protected.
4º) That said, the possibility of materialization is very broad (“fixed in any type of medium or communicated by any means”) what can be perfectly confounded with the industrial property.
5º) For this motive and because, unlike the industrial property, the artistic, literary or scientific creation, does not try to provide a service or a technical utility (though it can provide it), it is an essential element that the intellectual creation -the work- constitutes and end in itself. For example, Camilo José Cela´s “The Beehive” or Van Gohg´s “The Sunflowers”), without prejudice that later it can be economically exploited as is derived from a teleological interpretation of the LPI and especially of the Book I, what is not an impediment for an artistic work, which constitutes an end in itself, may be created for being used as a distinctive sign of determined mercantile activity which, ceded to it the right of exclusive exploitation of the right of intellectual property which pertains to the author (the moral right to which is referred the LPI), inscribes it in the trademark and patent register (think, for example, in the Miro´s Star which identifies the Caixabank´s banking and financial activity.”
Therefore, not all the works will be the object of penal protection, only those which fulfill the above requisites.
As we have been able to observe, even using the criterions offered by the jurisprudence for distinguishing a work protected by the rights of intellectual property, from the one which is not, we have difficulties, for all of us should agree that the broadness with which are defined by the article 10 LPI, as well as the article 270.1 CP, does not ease the work. This lack of precision has generated problems in the practice, for example, when the courts had to determine whether sharing a football match in an establishment open to the public, like a pub, without having been paid the corresponding rights by the owner to the assignee, like Movistar, was or was not a crime against the intellectual property. As you can imagine at the beginning the answer to this question was varied, thereby until the problem did not reach the Spanish Supreme Court there was no correct reply, provoking a grave situation of legal insecurity to all those who had been accused of these facts. The question finally was solved by the Spanish Supreme Court´s sentence number 2315/2022, which did not consider a football match as a literary, artistic or scientific work or performance protected by the rights of intellectual property. The aforementioned sentence says: “2.4- In the present case, it is convenient to fix some analytic premises without which the controversial question cannot be duly addressed. Indeed, what constitutes the object of the present appeal and demands a pronouncement from this Chamber is not whether the audiovisual recordings -in the present case, the televised broadcasting of the football matches from the first and second division and the matches of Cup- are or are not susceptible of protection in the framework of the rights of intellectual property. It is not questioned either, whether the entities of broadcasting may be subjects of the rights inherent to the intellectual property or not. If it is well thought, it is not the object of discussion either, whether the infringement of these rights, boosted by an economic purpose, must have a penal reply.
That the audiovisual recordings and the broadcastings of the entities of broadcasting form part of the material content of the right to the intellectual property is unquestionable according to the articles 120 and following of the Royal Decree 1/1996, of 12 April, by which is approved the Intellectual Property Act. And no one doubts that the public communication of these recordings only is legal if these are duly authorized. Thus, it is imposed by the article 122 of the aforementioned law. It is not questionable, on the other hand, that the rights of the entities of broadcasting are exclusive rights and that their exercise can be the object of transfer, cession or license (art. 126.1 b).
It is not debatable either, that the infringement of these rights is penally punished. It is enough with check how the appellant Epifanio has been convicted as author of a crime against the market and the consumers of the article 286.4 of the CP. A different question is that that appraisal is not accepted by the appellants.
The debate, therefore, does not have anything to do with a supposed oblivion of the legislator for establishing a legal mechanism of protection regarding the audiovisual recordings and the entities of broadcasting. These recordings constitute one of the manifestations of the intellectual property. The question is to determine whether a behavior of whom allows in a public establishment the watching of such matches, without having paid the rights which authorized their exhibition, has to be punished, always and in all cases, according to the article 270.1 CP.
It is in this concrete point where the Chamber does not coincide with the arguments of the appellants.
As we have pointed out before, the Public Accusation understands that the fitting in the article 270.1 of the CP of the behavior declared as proven may be obtained without difficulty from the “voluntas legislatoris”, which would have been manifested in the parliamentary debates of the LO 1/2015, of 30 March. This explicit criterion of the criminal policy would have implied a broadening of the portion of unjust initially comprehended by the referred article 270.1 of the CP. Not in vein, this reform replaced the previous description of the typical action – to publicly communicate wholly or in part, “…a literary, artistic or scientific work”- for a wording which punishes whoever “…publicly communicates or in any other way economically exploits, wholly or in part, a literary, artistic or scientific work or performance.”
According to this idea, the punishment to whoever “…in any other way economically exploits” a literary, artistic or scientific work or performance, would broaden the limits of the type, until then limited to reproduce, plagiarize, distribute or publicly communicate an artistic, literary or scientific work. The utilization of a typical residual action, of generic character and comprehending any kind of offense to the legal good, would not imply – reasons the Public Accusation- any breaching of the principle of legality. What was sought by the legislator was to fill spaces of non-criminality which would have manifested the wording before the reform of 2015.
Besides, the express inclusion in the new wording, in disjunctive terms, of the literary, artistic or scientific “performances”, against the “works” of the same character, would strengthen the conclusion concerning the broadening of the typicity. The Public Accusation argues – with the support of the Circular 8/2015 of the Prosecutors General´s Office- that the word “performances”, beyond its civil meaning, is identified in the ambit of the rights of the intellectual property -according to the predominant dogmatic understanding- with the rights recognized in the Book II of the Intellectual Property Act and which are different of the intellectual property right in strict sense. And among those rights includable in the concept of penally protected performances -would be included those which has as object the phonographic productions and the audiovisual recordings (art. 114 to 125) which correspond to the authors of them; those of the transmissions or emissions made by the entities of broadcasting (articles 126 to 127) and the mere photographies.
The Chamber does not question that in the concept of “performances” are included the audiovisual recordings. The legal protection of the rights derived from its exhibition is explicitly proclaimed, as we have already pointed out, in the articles 120 and following of the Intellectual Property Act. The problem consists in deciding if the infringement of the exclusive rights which are generated for the broadcasting of a football match of the first or second divisions or of the cup fits in the article 270.1 CP, according to the notion of “literary, artistic or scientific work or performance”. And the answer must be negative.
Discarded the condition of a football match as literary, artistic or scientific “work”, its consideration as “performance” of such character, for the purpose of the penal typicity, is especially difficult. It is not easy to set the limits of the type when this has normative elements which evokes the literature, art or science. This is why, the exegetics guidelines for delimiting such scope has to be extremely prudent for not exceeding the limits which is words allows to cover. The football, indeed, is not literature. It is not science either. It is true that a football match -in general, in any sport spectacle- can takes place facts of undeniable aesthetic value, but to interpret these moments or sequences of technical perfection as defining features of an artistic spectacle can drive to surpass the limits of the principle of typicity. A football match is a sport spectacle, not artistic. And this conclusion is achieved, not only by the empiric verification that there are many matches in which the spectator does not have the opportunity of watching any play of artistic value, but because in the search for the victory there are actions which notably differ from any canon of artistic beauty.
Let us now study the subjective elements of the type. The behavior described in this first point of the article 270, is a malicious behavior, this supposes the consciousness of the alienation, in other words, that it is something over which there is no possession rights. But, besides, this point makes reference to other elements which must converge along the malice, the will of obtaining a direct or indirect economic benefit and to the detriment of a third party.
As we already advanced at the beginning, with the reform of the CP through the LO 1/2015, was replaced, “besides, the subjective element “profit-making intention” by the “intention of obtaining an indirect or direct economic benefit”, with which it is tried to include behaviors in which a direct benefit was not obtained, but it did obtain an indirect benefit.” Like, for example, the obtention of a benefit through advertisements.
Now we have to solve the question of what is an indirect or direct economic benefit. Though referring itself to the old profit-making intention, we can make use of the said by the Provincial Court of Gran Canaria´s sentence number 2393/2014: “Concerning the subjective element defined in the article 270 consisting in that the action is carried out “with profit-making intention”, we can say that as such, in general, is understood any advantage, benefit, utility or benefit of patrimonial character, and in the crimes relative to the intellectual property the profit-making intention is mainly concreted in the intention of obtaining an economic advantage from the carrying out of an activity not allowed, and as typical element of subjective character it is not possible the direct proof of it, but, as the Spanish Supreme Court recognizes, we have to make use of some objective elements which surrounded the fact for proving the intention of the subject, making use thus of criterions like the shape of the illegal copy, quantity and number of copies seized, place of selling, lack of any type of documentation and permission, in other words, the “modus operandi” (Spanish Supreme Court´s sentences of 26 September 1992 and 27 February 1992).”
The Circular 8/2015 of 21 December, about the crimes against the intellectual property committed through information society services after the reform carried out by the Organic Law 1/2015 (Circular 8/2015) help us too, delimiting the scope of this direct or indirect economic benefit. There will be intention of obtaining a direct or indirect economic benefit “when the subject acts with the intention of a commercial benefit, understood as intention of obtaining an economic benefit, profit or income.”
Afterwards, the Circular 8/2015 continues, “At the end, the benefit can be obtained in a direct or indirect way, but it always will refer to a profit or advantage different form the mere saving of the price for the enjoyment of the work or performance, and obtained at commercial scale, this is, through an activity oriented to this end. This conception of the subjective element of the unjust linked with the patrimonial dimension which always accompanies the rights of exploitation -which is obvious after the incorporation to the precept of the expression or in any other way economically exploits- carries to the conclusion that the mere taking advantage of the access to a protected content, avoiding the payment of the demandable financial consideration, will be left at the margins of the penal types.
With this the legislator has opted for leaving out of reach of the penal punishment the users or private persons which carry out the typical behaviors outside a commercial activity, what can be deduced from the Exposition of Motives of the norm when this indicates that the Intellectual Property Law is the natural tool of protection in this subject and which is absolutely necessary to achieve certain balance between that protection of the intellectual property and that which also derives from the licit use of the new technologies of information and communication.”
A requisite, which leaves outside the penal ambit all those typical behaviors, though fulfilling the objective elements of the type, cannot be punished for lacking one of its subjective elements, as for example the private persons who copy a music CD of their favorite group of music for their personal use. In these cases, the civil jurisdiction should be appliable.
Lastly, concerning the second subjective element “to the detriment of a third party”. This expression transforms it into a crime of tendency, whose consummation demands neither a direct or indirect economic benefit nor the detriment of a third party. The Spanish Provincial Court of Madrid´s sentence number 1660/2023 says: “In this point, the Spanish Provincial Court of Madrid´s sentence number 188/07 determines that, “the detriment of the third party is not the result of the crime, but an element of the subjective type, correlative to the profit-making intention and which transforms it into a crime of tendency – that of obtaining an economic benefit thanks to the alien intellectual property-, whose consummation does not demand the effective benefit nor the damage.”
The Circular from the General Attorney´s Office 2/89 and the Circular 1/2006 coincides in this appreciation, concluding that it is not an element of the type the production of a subsequent result as may be an effective patrimonial damage, regardless of the concurrence of other criminal types as the swindle in the case examined.”
To which we can add the said by the Spanish Provincial Court of Gran Canaria´s sentence number 2393/2014: “In relation to the detriment of a third party, we must point out that, in no event is necessary for the consummation the effective damage to third persons, for, the Code says “to the detriment of a third party”, expression which is different from “with detriment to third party”. The latter expression -according to a consolidated doctrinal group- implies the production of a real damage, while the former supposes the mere potentiality of its production.
In other words, the action has to be suitable to produce a damage to a third party, but, the consummation of the crime does not demands the effective causation of this damage, being necessary to add that, in any case, in the case examined, taking into account the commercial end of the behavior developed by the accused, the result of the intervention carried out and the content of the expert´s proof practiced during the trial, does not offer any doubt to this Chamber concerning the concurrence of the typical result “to the detriment of a third party.”
Article 270.2:
Let us now analyze the second of the points of the article 270. In this case, the typical behavior consists in, during the provision of information society services to ease, in an active way and non-neutral, nor being limited to a mere technical treatment, the access or the tracking in internet of works or performances subject to intellectual property without authorization of the owner of the corresponding rights or their assignees.
You will coincide with me, in the fact that the legislator would have been able to spare the inclusion of this second point, for the typical behavior punished may be perfectly comprehended in the described in the first point. Undoubtedly, to ease the access or the tracking of a work fits in the definition given by the article 20 LPI of an act of public communication. Another thing is that, the legislator had decided to strengthen the penal protection against this type of behaviors, typifying this expressly and in a clear way, what grants more legal security to those to which the norm is addressed.
In order to study this second point, the Circular 8/2015 is going to help us a lot. According to this, in this second point are described two kinds of behaviors “the easing of the access to works” and “the easing of the tracking”. Concretely, it says: “From the wording of the precept derives that the easing of the access is to the works or performances localized in websites which host content and from which are carried out the direct downloads, while the tracking of the localization is referred to the activity of the websites of links. In the former case, referred to websites for direct downloads FTP, we are before an infringing act developed by a provider of services of hosting or storing of data or content, while in the latter, appliable to the websites of links, it is an activity of a provider of services of links to content. Both one and the other are providers of services of intermediation.”
Once we have the above more or less clear, we must talk about the liability regime of the providers of information society services established in the LSSI, which in its article 13 establishes that they are subject to penal, civil or administrative liability.
The liability regime for these providers is established, in the articles 14, 16 and 17, which incorporate to our legal order the Directive 2000/31/CE of 8 June, about electronic commerce. In the article 16 we find the liability of the providers of hosting or storing of data and in the article 17 the liability of those who facilitates links to content or instruments of search.
Both articles contain a liability regime really similar, in both cases, the providers of services of intermediation shall not be liable, always that:
a) They do not have effective knowledge that the activity or the information is illicit or that it damages goods or rights of third parties susceptible of compensation, or
b) If they have it, they diligently act for removing the data or making impossible the access to them.
Later, both articles add that, “It will be understood that the provider of services has the effective knowledge to which is referred the paragraph a) when the competent organ has declared the illicitness of the data, ordaining their removal or to make impossible the access to them, or has declared the existence of the damage, and the provider knows the corresponding resolution.”
Therefore, in order to understand appliable the exemption of penal liability of the articles 16 and 17, the providers of services of intermediation cannot know the illicitness of the data which they store or to which they remit. And in the case that they have this knowledge, they have to act diligently for removing them or making impossible the access to them.
Besides, the own articles 16 and 17 establish a presumption iuris tantum of effective knowledge of the illicitness, when a competent organ has declared the illicitness of the data, or has declared the existence of the damage, and the provider knows such resolution. Despite the wording of the articles 16 and 17, the jurisprudence from the Spanish courts has smoothed this requisite for understanding that there exists effective knowledge to the detriment of the providers of services of intermediation. Since thanks to this interpretation of the Spanish courts, “any kind of effective knowledge” will be enough, not only that coming from a competent organ´s resolution, for obliging the providers of intermediation services to remove or block the infringing content. As for instance, when the offended contacts with the provider of services of intermediation, in order to communicate the infringement. The Circular 8/2015 says: “Therefore, for determining the liability of the providers of the services of which we have been talking it is necessary that their persons in charge of the service have effective knowledge of the illicitness of the information stored or to which is being linked. Departing from this legal regulation, the interpretation of this requisite of the “effective knowledge of the illicitness” what has supposed a new obstacle for appreciating the liability of the infringing websites of rights of intellectual property, along the already examined relative to the concept of public communication and/or the concurrence of commercial benefit.
…
Departing from the express wording of such articles has been understood, in order to consider civilly and penally liable the providers of services, that the verification of the concurrence of the effective knowledge of the illicitness of the content or of the information which they store or they remit demanded the existence, regarding this, of a resolution of a competent judicial or administrative organ communicated to the interested.
However, lately, the Spanish Supreme Court has dictated different resolutions which suppose a breaching in the traditional line of interpretation of the precept, concretely the Spanish Supreme Court´s sentences number 773/2009 of 9 December; 316/2010 of 18 May; 72/2011, of 10 February; 742/2012, of 4 December; 128/2013, of 26 de February; 144/2013, of 13 March and 805/2013, of 7 January 2014. According to this jurisprudential line, for understanding that the effective knowledge concur that is demanded by the articles 16 and 17 LSSICE, it is not necessary a resolution from a competent organ regarding the illicitness of the contents and that that resolution has been communicated to the service of storing or linking, but the knowledge of the irregularity of the material which is stored or to which is linked may be obtained by any other means, like a registered notification accompanied of proofs from the affected party or even by the mere evidence of the illicitness when this is evident by itself. Therefore, the appreciation of such intellectual element in each concrete case will be subjected to the ordinary rules about assessment of the proving material.”
But, we cannot confound the possibility of being able to prove by any means that the provider of the services of intermediation had the effective knowledge of the illicitness of the data stored or remitted, with demanding to them a duty of diligence which exceeds the limits legally established, in other words, in no event can be demanded to a provider of services of intermediation the continuous verification that the data stored or remitted is not illicit, for this would suppose a burden which would make impossible the fulfilment of the law and which would provoke the disappearance of this providers of services of intermediation. Later the Circular 8/2015 continues: “However, this obligation does not suppose the demand to these providers of a specific duty of care which implies a permanent and general preventive control, at their own expense, of all the contents with which they operate, with the end of avoiding or impeding those which are illicit. In this line, the Sentence from the Third Chamber of the Court of Justice of the European Union, of 24 November 2011 -and likewise the Sentence from the same court of 16 February 2012, case Netlog-, expressly citing the article 15.1 of the Directive 2000/31/CE, points out that it is expressly forbidden to the national authorities to adopt measures which oblige to a provider of services to proceed with the general supervision of the date transmitted through its red, and the same conclusion is obtained by the article 16 of the Charter of Fundamental Rights of the European Union (protection of the liberty of company) and of the articles 8 and 11 of the same document (fundamental rights to the protection of data and the liberty of receiving or communicating information). Thus, in the Sentence of 24 November 2011, already mentioned, the Court declare that the Directives 2000/31/CE; 2001/29/CE; 2004/48/CE; 95/46/CE y 2002/58/CE jointly read must be interpreted in the sense that it is contrary to them to judicially require that provider of services observe the following behaviors: a) to establish a system of filtering of all the electronic communications which circulate in its services; b) to apply it with respect to all its clients; c) with preventive character; d) exclusively at its own expense; e) without limitation of time.
In conclusion, the liability of the providers of services of storing and/or linking must be analyzed according to the parameters which are being examined. In other words, the exemption of liability to which are referred the articles 16 and 17 LSSI would not be adequate when it is proven that such providers of services had effective knowledge of the illicitness of the content stored or to which they linked, regardless of whether there exists a resolution declaring it and its duly notification. However, this conclusion does not allow to affirm that it is demandable to them a specific duty of care which implies a permanent and general control, at their own expense, of those contents with the end of avoiding or impeding them.”
Lastly, in relation with this liability regime of the providers of services of intermediation, we can ask ourselves in which way coexist the administrative procedure of the LSSI with the penal procedure of the CP. The determining factor for considering a behavior as a penal infringement or a simple administrative infringement, will be to attend to whether are fulfilled the subjective elements of the type, in other words, if it was carried out with the intention of obtaining an economic benefit and to the detriment of a third party. Later, the Circular 8/2015 says: “There is no contradiction between the regulation relative to the exoneration of liability of the providers of information society services contained in the LSSICE and the typification of their behavior when this infringes rights of intellectual property, for the punishment of such behaviors demands a plus, since it does not only require the effective knowledge that the behavior is illicit, but also that this is carried out with the intention of obtaining an direct or indirect economic benefit.”
Besides, we have to take into account that the organ in charge of punishing these behaviors in the administrative order is the Second Section of the Commission of Intellectual Property, what emphasizes even more the character of ultima ratio of the penal law. The Spanish National High Court´s sentence number 117/2016 says: “3.- Nevertheless, before deepening in the content of such resolution, we must clarify that not any damage or put into danger of the rights which protect the intellectual property has to be regarded as criminal. Thus, the current article 195 of the Intellectual Property Act determines the existence of an administrative procedure tending to punish this kind of behavior too. The public organ in charge of implementing it – to which correspond the punishing power- is the Section Second of the Commission of Intellectual Property. Regarding this, such precepts establishes that only can be initiated the punishing administrative procedure when the level of public in Spain and the number of works or performances affected are considerable. Thus, a characteristic sector of our scientific doctrine has observed that, attending to the principles of fragmentariness and ultima ratio of the penal law, the threshold of penal relevance should not be established beneath those limits.”
Reached this point, we have explained the objective elements of the type, a little of the subjective, and the liability regime of the providers of services of intermediation established in the LSSI for explaining how the administrative and penal procedure coexist. Notwithstanding, we cannot consider concluded the explanation of this point, we have to give a reason to the exemption of penal liability granted to the search engines which carry out a neutral search of content, and we are obliged to mention, because of their relevance, two practical cases related between them, on account of the way in which one affected to the final result of the other, we are referring to the known as “Svensson case” from the Court of Justice of the European Union, and the “Youkioske case” solved by the Spanish Supreme Court.
The answer to the first question is easy. The search engines which choose the content that they offer to their users in a neutral way, do not have as object the tracking of works or performances which are protected by rights of intellectual property for facilitating their free access. They fulfill a technical function, according to the criterions of search offered by their users they respond with some results, irrespective of whether for downloading the work or performance a price has to be paid. Besides, the economic benefits which they may obtain as consequence of the provision of these services, are not wholly linked with offering illicit content which infringe intellectual property rights, but by other means as the obtained through the clients which pay for obtaining a good place among the search results. Doubtless, if the legislator forbade these services, it would give a mortal blow to the internet we know, for the common internet users would not be able to find the content that they were searching. In this sense, the Circular 8/2015 says: “The neutral easing and merely technical of the access or the localization in internet of works of performances object of intellectual property without the authorization of their owners, does not fulfill the demands of the typical behavior of the article 270.2 CP, as the Exposition of Motives of the Law reasons regarding this pointing out that…the above does not affect to those who developing activities of mere technical intervention, as may be, among others, a neutral activity of the search engine or which only occasionally links with those contents of third parties.
This exemption finds its reason in the own way of working of these searching engines which consists in continuously tracking the net using a computer program, taking information of the websites which are hosted in thousands of servers of internet for, once obtained the information, to analyze and compile it and generate an index through another computer program. All the process of compilation, organization and indexation takes place without human intervention, for it is carried out in an automatic way on all the websites and without a specific exam of the contents of each of them, since the object of the search engine is the indexation of all the available information in internet for reflecting better the reality in it. Consequently, it is, as the article 270.2 CP and the own Exposition of Motives of the Organic Law 1/2015 of 30 March, a mere neutral and technical activity.”
Let us now talk about the “Svensson case” and the “Youkioske case”. As we advanced both cases are intimately connected, since the Spanish Supreme Court applied the criterion previously set by the Court of Justice of the European Union.
Logically, let us start with the “Svensson case”, it is a prejudicial question formulated by a Swedish court to the Court of Justice of the European Union, which solved it in the case C-466/12:
“Consideration of the questions referred
The first three questions
14 By its first three questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 3(1) of Directive 2001/29 must be interpreted as meaning that the provision, on a website, of clickable links to protected works available on another website constitutes an act of communication to the public as referred to in that provision, where, on that other site, the works concerned are freely accessible.
15 In this connection, it follows from Article 3(1) of Directive 2001/29 that every act of communication of a work to the public has to be authorised by the copyright holder.
16 It is thus apparent from that provision that the concept of communication to the public includes two cumulative criteria, namely, an ‘act of communication’ of a work and the communication of that work to a ‘public’ (see, to that effect, Case C‑607/11 ITV Broadcasting and Others [2013] ECR, paragraphs 21 and 31).
17 As regards the first of those criteria, that is, the existence of an ‘act of communication’, this must be construed broadly (see, to that effect, Joined Cases C‑403/08 and C‑429/08 Football Association Premier League and Others [2011] ECR I‑9083, paragraph 193), in order to ensure, in accordance with, inter alia, recitals 4 and 9 in the preamble to Directive 2001/29, a high level of protection for copyright holders.
18 In the circumstances of this case, it must be observed that the provision, on a website, of clickable links to protected works published without any access restrictions on another site, affords users of the first site direct access to those works.
19 As is apparent from Article 3(1) of Directive 2001/29, for there to be an ‘act of communication’, it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity (see, by analogy, Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 43).
20 It follows that, in circumstances such as those in the case in the main proceedings, the provision of clickable links to protected works must be considered to be ‘making available’ and, therefore, an ‘act of communication’, within the meaning of that provision.
21 So far as concerns the second of the abovementioned criteria, that is, that the protected work must in fact be communicated to a ‘public’, it follows from Article 3(1) of Directive 2001/29 that, by the term ‘public’, that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (SGAE, paragraphs 37 and 38, and ITV Broadcasting and Others, paragraph 32).
22 An act of communication such as that made by the manager of a website by means of clickable links is aimed at all potential users of the site managed by that person, that is to say, an indeterminate and fairly large number of recipients.
23 In those circumstances, it must be held that the manager is making a communication to a public.
24 None the less, according to settled case-law, in order to be covered by the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, a communication, such as that at issue in the main proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public (see, by analogy, SGAE, paragraphs 40 and 42; order of 18 March 2010 in Case C‑136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, paragraph 38; and ITV Broadcasting and Others, paragraph 39).
25 In the circumstances of this case, it must be observed that making available the works concerned by means of a clickable link, such as that in the main proceedings, does not lead to the works in question being communicated to a new public.
26 The public targeted by the initial communication consisted of all potential visitors to the site concerned, since, given that access to the works on that site was not subject to any restrictive measures, all Internet users could therefore have free access to them.
27 In those circumstances, it must be held that, where all the users of another site to whom the works at issue have been communicated by means of a clickable link could access those works directly on the site on which they were initially communicated, without the involvement of the manager of that other site, the users of the site managed by the latter must be deemed to be potential recipients of the initial communication and, therefore, as being part of the public taken into account by the copyright holders when they authorised the initial communication.
28 Therefore, since there is no new public, the authorisation of the copyright holders is not required for a communication to the public such as that in the main proceedings.”
As you have been able to observe, for considering that there exists an act of public communication in the sense of the article 3.1 of the Directive 2001/29, the Court of Justice of the European Union establishes three criterions: 1º) “As is apparent from Article 3(1) of Directive 2001/29, for there to be an ‘act of communication’, it is sufficient, in particular, that a work is made available to a public in such a way that the persons forming that public may access it, irrespective of whether they avail themselves of that opportunity (see, by analogy, Case C‑306/05 SGAE [2006] ECR I‑11519, paragraph 43)”; 2º) “So far as concerns the second of the abovementioned criteria, that is, that the protected work must in fact be communicated to a ‘public’, it follows from Article 3(1) of Directive 2001/29 that, by the term ‘public’, that provision refers to an indeterminate number of potential recipients and implies, moreover, a fairly large number of persons (SGAE, paragraphs 37 and 38, and ITV Broadcasting and Others, paragraph 32).”; 3º) “None the less, according to settled case-law, in order to be covered by the concept of ‘communication to the public’, within the meaning of Article 3(1) of Directive 2001/29, a communication, such as that at issue in the main proceedings, concerning the same works as those covered by the initial communication and made, as in the case of the initial communication, on the Internet, and therefore by the same technical means, must also be directed at a new public, that is to say, at a public that was not taken into account by the copyright holders when they authorised the initial communication to the public (see, by analogy, SGAE, paragraphs 40 and 42; order of 18 March 2010 in Case C‑136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, paragraph 38; and ITV Broadcasting and Others, paragraph 39).”
Being this last criterion, the lacked by the behavior analyzed by the Court of Justice of the European Union, this determined that there was no act of public communication in the sense of the article 3.1 of the Directive 2001/29, and therefore, the authorization of the owners of the intellectual property rights was not necessary.
Now, let us compare this case with the case of Youkioske.com solved by our Spanish Supreme Court. I advance you that, in this case what is tried is a website which upload to internet the paper version of numerous newspapers and magazines, obtaining with it numerous visits and with then a great economic benefit derived from the advertisements which appeared in it, we talk about thousands of euros per month. The Spanish Supreme Court says in its sentence of 16 December 2016: “Contextualized the phrase which now the appellant cites, what results from it is completely opposite to the basis of the appeal. The link to a protected work fills the typicity of the crime against the intellectual property because entails, to the detriment of the rights of its owners, a communication of a content protected whose spreading has not been authorized freely by its owners. In the case of the appealed sentence, once corrected in essential aspects by virtue of the order in the previous sentence of this Chamber, declares proven that the newspapers appeared in the website in their paper version, which, could be only obtained paying their price or subscribing to platforms Orbyt and Kiosko and Mas. In other words, what we excluded in the previous Sentence is that in the terms in which appeared written the factual account, the action was not shaped as typical insofar as it was gathered in the website means of communication which were not known, because the factual account did not tell whether they were addressed to a “new public”, in the terms to which is referred the Sentence Svensson, Court of Justice of the European Union´s sentence of 13 February 2014. From the previous factual account it is ignored whether the public who accessed to the accused website in which was gathered the newspapers and magazines, has access to the same media by other means, because the owners of the referred media had put them at the disposal of the internet users through their digital editions. Therefore, if the work was already known by the users, or potentially they were able to know it freely, the mere action of simplifying the access, does not constituted the act of public communication integrated in the typicity of the article 270 of the Penal Code. On the contrary, it does integrate it when what is carried out is the access to a new public of the contents protected overcoming the conditions of access established by the owners. The account is clear when it expresses that the protected contents was of access through the payment of the price of the written copy or to the subscription to the platforms of communication which are mentioned in the proven fact. The behavior of the accused incorporating to their website the contents without the authorization of the owners makes possible its typification as a crime against the intellectual property. For observing the typicity the accent has to be put in what the Court of Justice of the European Union denominates “new public”. Thus in the previous sentence of this Chamber was requested the court of first instance to clarify these factual points necessary for the subsumption, and the court of first instance did it, delimiting the ambit of the intellectual property, the magazines, newspapers and books spread by the accused, and the suppression of the conditions of access and enjoyment of the work protected imposed by its owner, in a point which is not the object of discussion in the sentence by the proper means.
This court does not have any doubts about the typicity of the factual account in the article 270 of the Penal Code and the observance of the European normative interpreted by the Court of Justice of the European Union. The questions that the appellant points out have been questioned by judicial organs of the European Union depart from a relevant fact, that the access has to be free for the public in general. In the case of this cassation appeal, the access, the factual account says, is not free but it is carried out by the payment of the paper version or the subscription to the platforms in which the owners host them for their reading. The purpose is not to facilitate, in the sense of favoring, the access to a work already published freely by its owner, but of obviating the scenarios of use of the work, through uploading to the website youkioske.com the protected content for its public communication in conditions not set by its owner.”
As we are able to observe, the difference between both cases resides in the fact that in the latter case, the owners of the website youkioske.com did carry out an act of public communication in the sense of the article 3.1 of the Directive 2001/29, for the work was being communicated to a public that the authors did not take into account when they did the initial act of communication, the public either had to buy the paper version of the newspapers and magazines affected or pay the subscription to the websites where this content was offered for certain amount of money. Therefore, the public who acceded to the version offered by youkioske.com was a new public, consequently, this website was making an act of public communication which required the authorization of the owners of the rights of intellectual property of the works uploaded to internet.
Article 270.3:
In the third point of the article 270, are established three kinds of measures that the judge or court trying the case may adopt: 1º) The withdrawal of the works or performances object of the infringement; 2º) The interruption of the website or the information society service through which is work accessible, and; 3º) The blockade of the corresponding access.
But, what is the nature of these measures? In principle, this third point of the article 270 seems to be referred to a punishment or an accessory consequence, for it appears to apply to the judge or court trying the facts. However, according to the Circular these measures can be also adopted as precautionary measures, always that the requisites which justify them are met, in other words, they have to be proportional, necessary and effective, which are also the mentioned in this third point for blocking the service. The Circular 8/2015 says: “A careful examination of the precept, as well as the civil and administrative regulation of these measures, shows that these may be adopted either as precautionary during the proceeding or as definitive in the final sentence. Effectively, they are measures which were already contemplated in the article 141 LPI as precautionary measures, thus, being possible to agree them with this nature in the case of a civil illicit, with more reason has to be admitted their adoption in the case of graver infringements of the rights of intellectual property deserving the penal reproach. Their adoption, with precautionary character, will be subjected to the pondered decision of the judge adjusting itself to the general regime of any precautionary measure. The decision, therefore, has to be always facultative and taken attending to the circumstances of the case and the entity of the existing evidences.”
Then, the difference between both scenarios, their adoption in sentence or previously as precautionary measure, lies in the preceptive character that they will have in the former, while in the latter, their adoption will depend on the criterion of the judge or court, that shall assess the proportionality and necessity of the measure, and the negative effects which its non-adoption may have for the effectivity of the resolution which ends the proceeding. Later the Circular 8/2015 continues: “Despite the imperative terms employed by the article 270.3 (the judge or court shall order the removal of the works or performances subject to the infringement…and/or… shall be ordered the interruption of the provision of this), this binding character will not affect when the measures are agreed as precautionary measures. Other interpretation would be contrary to the general regime of the precautionary measures, which, by their own nature, can be only established when they are justified in each concrete case and when, if not adopted, might produce during the proceeding situations which impede or hinder the effectivity of the protection which might be granted in an eventual convicting sentence.”
Being a crime pursuable ex officio, the adoption of any of such measures as precautionary measures, may be agreed ex officio or at the request of any of the parties at any moment of the proceeding.
Therefore, the legislator has established in this point for the criminal proceeding, some of the precautionary measures which already appear in the article 141 LPI and the articles 8 to 11 LSSI, for being agreed in the sentence or as precautionary measures during the proceeding. However, the judicial organ may precautionarily agree any other of the measures mentioned in the article 141 LPI, according to the article 13 of the Spanish Criminal Procedure Act (LECrim) and the article 143 LPI.
Regarding where we can find in the LPI or LSSI each one of these measures mentioned in the article 270.3, the Circular 8/2015 explains: “The withdrawal of the infringing works or performances may be carried out either in a physical or virtual environment. In the former scenario the seizing of objects or copies which infringe the rights of intellectual property, is established as precautionary measure in the article 141.3 LPI; and the latter, the withdrawal of content hosted by websites is mentioned by the articles 8.1 and 11.1 LSSI. Regarding the interruption of the service, this is expressly established by the articles 8.1 and 11.1 LSSI as a measure for protecting the rights of intellectual property and as a precautionary measure in the article 141 LPI, being possible to include it in the number 2, which establishes the suspension of the activity of reproduction, distribution and public communication, or of any other activity which constitutes an infringement according to this law, or in its number 6, which contemplates the suspension of the services provided by intermediaries to third parties which make use of them to infringe rights of intellectual property.
Likewise, the measure of blockade may be included, like the interruption of the service, in the own point 6 of the article 141 as suspension of the services provided by intermediaries to third parties which make use of them to infringe rights of intellectual property, being mentioned too, by the article 11.2 LSSI.”
Another important aspect, is how the legislator distinguishes between the measures of withdrawal and interruption, and the blockade. While the first two are mandatories, the latter can only be adopted “Exceptionally, when there exists reiteration of the behaviors and when it is a proportionate, efficient and effective measure”. In my opinion, the legislator has considered both requisites in a way that they have to concur at the same time, for being licit to adopt the blockade. On the contrary, the Circular 8/2015 considers that with one could be enough, it says: “only may be adopted in the exceptional cases specified in the last paragraph of the article 270.3, which are concreted in the cases in which exists reiteration of the infringing behavior and/or the blockade of the access is a proportionate, efficient and effective measure for avoiding the ongoing infringement of the rights of intellectual property.”
The Circular 8/2015 also clarifies, what is the difference between the interruption of the service and the blockade: “The only difference between both measures lies in the fact that while the interruption of the service will allow the closing of the infringing website which is localized in our country -being possible to give the necessary orders to the provider of services of hosting localized in Spain-, the blockade of the access will proceed when the infringing website is outside of Spain. In this second case, the collaboration of the providers of services of intermediation will consist in impeding from our country the access to the website localized outside of our frontiers.”
Article 270.4:
With the article 270.4 is considerably reduced the superior limit of the punishment established in the first point, for the cases in which the behavior described in it is carried out through a “itinerant or merely occasional distribution or commercialization”. There is no punishment of fine, and the punishment of imprisonment is from 6 months to two years.
Besides, depending on the “the characteristics of the culprit and the scarce amount of the economic benefit obtained or which might have been obtained, always that any of the circumstances of the article 271 do not concur, the Judge will be able to impose the punishment of fine from one to six months or community service from thirty-one to sixty days.” This makes possible the no imposition of the punishment of imprisonment. Though, in any case, the appreciation of the concurrence of the circumstances mentioned for replacing the punishment of imprisonment, will be left in great degree to the will of the judge or court, for this fourth point of the article 270 does not mention the characteristic of the culprit, nor when the economic benefit obtained or which might have been obtained is of little relevance.
Article 270.5:
In broad terms, we can distinguish two kinds of behaviors in the article 270.5. A group formed by the letters a) and b), in which are punished the behaviors of exportation or storing, and of importation of works protected by rights of intellectual property. And other group, formed by the letters c) and d), which punishes the avoidance of the technological measures addressed to protect the works protected by rights of intellectual property, from possible infringements.
Let us start with the behaviors included in the first group. The first of them, in the letter a), punishes whoever intentionally exports or stores the works to which is referred the first point, without the due authorization, when they are destined to be reproduced, distributed or publicly communicated. Therefore, the typical behavior consists in intentionally exporting or storing protected works without the due authorization. For exporting, we must understand the act of transporting the protected works outside of the Spanish frontiers. The other typical behavior is the storing of copies of the protected works, without specifying the minimum number of copies which will constitute a crime, though, due to the character of last resort of the penal law, we must understand that the number of copies should be high. On the other hand, this is a malicious crime, what implies that the active subject knows and wants to carry out the objective elements of the type, in this case, to store or export protected works for later being reproduced, distributed or publicly communicated. To this malice, we should add another element, the active subject must store or export them with the intention of reproducing, distributing or publicly communicating them, intention, which pertains to the private sphere of the author, which should be proven through objective elements, like the number of copies stored. However, in this case, the subjective elements of having the intention of obtaining a direct or indirect economic benefit, or to the detriment of a third party, are not demanded.
Within this first group, the other typical behavior punished is the importation of protected works, without the authorization of the owner of the rights, when they are destined to be reproduced, distributed or publicly communicated in Spain. On the other hand, the cases in which the protected work is imported from a country pertaining to the European Union having directly acquired from the owner of the rights the work in such State or with his consent are not punished. In my opinion, the distinction between both behaviors is not clear. That a protected work is imported from a country pertaining to the European Union and directly from the owner of the rights or with his consent, does not mean that the owner of the rights has implicitly admitted the reproduction, distribution or public communication of the work in the country where is going to be imported. This means that both importations should be considered illegal. The determinant factor for considering the importation of work as illegal is whether the owner of the intellectual property rights or their assignee has consented its reproduction, distribution or public communication in Spain.
Let us talk about the second group of behaviors, those which are centered in overcoming the measures of security which the protected works may have for impeding the infringement of rights. The Circular 8/2015 says about them: “The technological measures are established either for controlling the access to the work or the performance or the use made of them, and can be defined as the procedures, technics, devices, components, or combination of them, whose function is to control, imped or limit the access to the utilization of the works and/or performances protected by the rights of intellectual property, impeding those acts which do not have the authorization of the owners of the rights of the corresponding works and/or performances.
Among them, we find the measures of control of access, as a software which impedes the use of the work without a code or password and which, besides, may have a determined period of validity; the systems which limit the reproduction, and allow to carry out just one digital copy of the work (or a limited number of them), or only allow to carry out the copy to one user registered or impede the transformation to other formats; the systems which only allow the reproduction in determined devices with some characteristics and not in other; the mechanisms which allow the visualization or hearing of the protected work, but not its reproduction, or download, nor its impression; those which impede the copy of the digital contents when they circulate through cables or means of connection between different devices; or the systems which impede the download, and only allow the hearing or visualization in streaming.”
The first of this kind of behaviors is in the letter c), which punishes whoever favors or eases the commission of the behaviors to which are referred the points 1 and 2 of the article 270, removing or modifying, without authorization of the owners of the rights of intellectual property or their assignees, the effective technological measures incorporated by them for impeding or limiting their commission.
We see how, the typical behavior is carried out by a different person than who will carry out the typical behaviors described in the first and second point of the article 270. This duality, is reflected by the way in which the legislator has shaped the subjective elements of the type, in a way that, it is not enough with a simple malice for understanding consummated the type, it is necessary also to infer from the behavior that the removing or modifying of the security measures of the protected work, was carried out with the intention of favoring or facilitating its subsequent reproduction, distribution or public communication. The Circular 8/2015 says: “From the wording of the precept is derived that not all act of removal or modification of the technological measures will be typical, only those which made for favoring or facilitating the subsequent commission of any of the crimes established in the number 1 or 2 of the article; thus, the active subject has to know, at least in a generic way, this subsequent activity to be developed by third persons.”
In this case, the legislator has advanced the penal protection, to which otherwise, would be only a mere collaboration with the subsequent crime constituted by the reproduction, distribution or public communication of the work protected. Being a wholly autonomous crime, will be consummated as soon as the subjective and objective elements of the type are consummated, in other words, that the measures of security of the protected work have been removed, and that this has been carried out by the author of the crime for facilitating its reproduction, distribution or public communication by a third party. In this case, will not be necessary the concurrence of other elements, like the intention of obtaining a direct or indirect economic benefit or damaging a third party.
A good example of this behavior is given by the Circular 8/2015: “The behavior of those who remove the protections of movies, music or videogames with the intention that third persons, generally the administrators of the infringing websites or the linking websites, carry out the acts of public communication or distribution, fulfills with their acts this penal type.”
Lastly, the last of the behaviors related with the removal of the measures of security, typified in the article 270.5, is to facilitate to third parties the access to a copy of a literary, artistic or scientific work, fixed in any kind of medium or communicated through any means, and without the authorization of the owners of the rights of intellectual property of their assignees, avoiding or facilitating the avoidance of the technological measures for avoiding it.
Unlike the previous case, here is punished either whoever avoids or facilitates the avoidance of a measure of protection of a protected work, for allowing a third party the access to it. It is not required that afterwards, this third party carries out any of the typical behaviors described in the first or second point of the article 270. What it does require, is that active subject, besides carrying out the malicious behavior, it has to make it with the intention of obtaining a direct or indirect benefit. The Circular 8/2015 says: “Either the author put at the disposal of third persons, in exchange of a patrimonial advantage, a method, tool or instrument which is going to allow to them the access to the protected works or performances and the illicit exploitation, or uses them itself for avoiding the technological measure of protection of them facilitating in this way the access to them by third parties. The precept punished both, whoever effectively avoids the protection and whoever facilitates to a third party the avoidance of a technological measure of protection. In either case, the active subject acts with the intention of obtaining a direct or indirect economic benefit.”
Article 270.6:
In this point of the article 270, is punished whoever “manufactures, imports, brings into circulation or possesses with a commercial end any means mainly conceived, produced, adapted or made for easing the non-authorized suppression or neutralization of any technical device which has been used for protecting computer programs or any of the other works, interpretations or executions in the terms established in the first two points of this article.”
To be honest, after reading it more than one time, I think that the behavior can perfectly fit in the described by the point d) of the article 270.5, since the manufacturing, importation, bringing into circulation or possession with a commercial end of any means mainly conceived, produced, adapted or made for facilitating the suppression not authorized or the neutralization of any technical means which has been used for protecting a protected work by rights of intellectual property, at the same time, can be considered a way of facilitating the avoidance, in general terms, of a measure of protection. We cannot forget either, that in both cases there must be an intention of obtaining a direct or indirect economic benefit. In any case, the Circular 8/2105 does not help us distinguishing between both precepts. Precepts, though very similar, differ in the punishment imposed.
The Circular 8/2015 does say that: “Has to be pointed out that, as consequence of both modifications experimented by this precept, the penal illicit is now identical to the behaviors described in the articles 102 and 160.2.c) LPI, the latter modified by the Law 23/2006, of 7 July, which literally incorporated the Directive. There is, at least in appearance, a complete overlapping of the penal and civil protection.
The distinguishing element between the penal and civil illicit is marked by the concurrence of what in the old wording of the Penal Code was the profit-making intention and now is the intention of obtaining a direct or indirect economic benefit. In the same sense was expressed the Circular 1/2006 regarding the article 270.3, in its original wording.”
– Article 271:
In the article 271, we find an aggravated subtype of the crimes described in the article 270. The article 271 says:
“Article 271.
Shall be imposed the punishment of imprisonment from two to six years, fine from eighteen to thirty-six months and special disqualification for exercising the profession related with the crime committed, for a period from two to five years, when the crime of the previous article is committed concurring any of the following circumstances:
a) That the benefit obtained or which might have been obtained has special economic transcendence.
b) That the facts have special relevance, attending to the value of the objects illicitly produced, the number of works, of the transformation, execution or interpretation of them, illicitly reproduced, distributed, publicly communicated or put at their disposal, or to the special importance of the damages caused.
c) That the culprit pertains to an organization or association, including of transitory character, which has as end the commission of infringing activities of rights of intellectual property.
d) That are used minors under the age of 18 for committing these crimes.”
– Article 272:
The article 272 regulates the civil liability derived from the crimes against the intellectual property.
The article 272 says:
“Article 272.
1. The extension of the civil liability derived from the crimes typified in the two previous articles will be regulated by the precepts of the Intellectual Property Act relative to the cessation of the illicit activity and the compensation of damages and prejudices.
2. In the case of convicting sentence, the Judge or Court may agree its publication, at the convicted expense, in an official newspaper.”
Therefore, for reckoning the civil liability derived from a crime against the intellectual property we must make use of the article 140 LPI, which says:
“Article 140. Compensation:
1. The compensation for the damages and prejudices due to the owner of the right infringed shall comprehend not only the value of the loss which has suffered, but also of the benefit which has not obtained due to the infringement of its right. The compensating amount may include, in its case, the expenses of investigation in which it has incurred for obtaining reasonable proofs of the commission of the infringement object of the judicial proceeding.
2. The compensation for damages and prejudices shall be fixed, at the choice of the damaged, according to any of the following criterions:
a) The negative economic consequences, among them the loss of the benefits that the damaged party has suffered and the benefits that the culprit has obtained with the illicit use.
In the case of moral damage shall proceed its compensation, even when it is not proven the existence of economic prejudice. For its assessment shall be taken into account the circumstances of the infringement, gravity of the damage and the degree of diffusion of the illicit work.
b) The amount which as remuneration might have perceived the damaged, if the culprit has requested authorization for using the right of intellectual property in question.
3. The action for claiming damages and prejudices to which is referred this article shall prescribe in five years since the moment the legitimized could exercise it.”
Let us now see this excerpt from the Spanish Provincial Court of Girona´s sentence number 1710/2018: “We have said, and we reaffirm ourselves in this, that the crime against the intellectual property does not need the effective damage to the third party, but to act with this conviction. Notwithstanding, if the damage is not finally produced in the concrete case, but only there was a risk of its existence if the works stored had been distributed, the truth is that there will not exist any type of compensation for this concept.”
Thereby, thought the damage to a third party has been considered as an element of the subjective type, which transforms a crime against the intellectual property in a crime of tendency or anticipated consummation, whose consummation does not demand the effective damage to third persons, the real existence of this damage does have relevance for reckoning the civil liability.
Víctor López Camacho
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