25 April 2019

Spain’s Recent Copyright Reform: an Interview with the Chair of the Library Association’s Copyright Group

The Spanish government recently implemented two European directives: the Marrakesh Directive, and the Collective Management Directive. The bill that transposed these two pieces of legislation came with unexpected proposals on the topic of public lending rights.

This case provides a good example of why keeping an eye on every legislative step is necessary, and of why the upcoming transposition of the Directive on Copyright in the Digital Single Market might open up new opportunities.

Ciro Llueca, director of the Library and Learning Resources at the Open University of Catalonia (UOC) and Chair of the Copyright group at the Spanish Library Association (FESABID) tells us about the recent changes:

Ciro Llueca, Chair of FESABID's copyright group

Ciro Llueca, Chair of FESABID's copyright group

Could you tell us about the changes that have been made to transpose the Marrakesh Directive?

From many years, the Spanish association for blind people, the ONCE, has been playing an essential role to provide access to materials in accessible formats, thanks to the broad copyright exception that was already in place. The Marrakesh Treaty will now, in addition, permit cross-border exchange of copies under the exception, with no remuneration, between Spain, as an EU member, and third countries that are parties to the Treaty.

What about the transposition of the Collective Management Directive?

The provisions that implement this Directive mainly focus on ensuring more control over collective management organisations (CMOs).

It is worth noting that the CMO lobby is very strong in Spain. Not only them, but also companies both from the publishing and audiovisual industries have a very strong influence on the Spanish Ministry of Culture, no matter what political party is ruling.

While smaller CMOs such as CEDRO’s (the CMO for books, journals, etc.) will never reach the levels of scandal we have seen around the SGAE (the CMO for music, and the biggest one in Spain), many believe that they take an unfairly tough approach towards smaller institutions. It has reached an extent where even the patience of their best friend, the government, is coming to an end.

The transposition of the Collective Management Directive includes a demand for clear and transparent information and audit, and a sanctions regime which imposes, for the most serious cases, disqualification as a CMO and fines of up to 800.000 €. We finally have legal provisions with a clear and fair message, but let’s see if there will be courage from government to enforce the provisions if needed.

FESABID is satisfied with this transposition, because it seems to reflect our historical position: authors must be recognized and paid for their work, but with transparency, publicity and loyalty to the public interest from the side of CMOs.

How does the current system of public lending rights work in Spain? Do you see any flaws?

Generally speaking, it is not working well. Very few public administrations are implementing the public lending right scheme. We have an enormous problem around payment collection. Let’s be clear: in Spain, lots of people, including citizen and politicians, disagree with the principles of public lending rights. Sometimes the reason is related to the low budgets of public libraries. From my viewpoint, we should ensure that the failed implementation of cultural politics due to the underfunding of libraries does not end up harming another legitimate group of interest: the authors, especially local authors. 

Certainly, scandals around CMOs don’t help to solve the current situation. But several regional governments, such as the ones from Catalonia, Madrid and now Castilla-La Mancha, have shown that reporting and counting issues can be solved when all sides are willing to negotiate. In neither of these cases there is damage to libraries’ budgets, since remuneration comes from the public administration. And as I said, CMOs must be transparent with financial delivery.

How will the recent legislative change be helpful?

The recent change placed the responsibility of managing the financial aspects of public lending rights in the hands of provinces, whereas this previously sat with the councils of towns with more than 5 000 people.

This change can be helpful. First of all, to the local public administration: before the change, most councils were unable (or not interested) to do it. And secondly, for CMOs: in Spain, CEDRO had to ask 1 315 town councils to provide them with information on loans and then request the payments. It was a complete failure.

Would FESABID have suggested another approach?

The recent change is not perfect, but it is much better than before. FESABID proposed placing the responsibility at a higher administrative level, regional or national, as happens in other EU countries. 

The risk with leaving responsibility to towns or provinces is that we end up with a scenario that older people may remember from the “Yes, Minister” British sitcom from 80s. We could have a “Yes, Minister” effect, where officials claim obedience but avoid doing what they are supposed to do – both by policy and ethics – to the detriment of our natural allies in reading policies: the authors.

Do you have any information on how the government will implement this new scheme?

It’s too early to know. In the Spanish Ministry of Culture, the current general director of Book and Reading, Ms. Olvido García-Valdés, was nominated a few months ago, and she is working hard: for first time in several years, she tried – but did not entirely succeed – to get all the local representatives of public libraries together with CMOs and FESABID to sit at the same table.

Now national elections are around the corner. Depending on the results, Ms. García-Valdés will be confirmed or not in her position. Even with a committed team in the Ministry, a change in this political position could have serious implications.

To end with another audiovisual reference, think of “Groundhog Day” with Bill Murray and Andie MacDowell? Spain can repeat, one more time, its current drama and disagreements about public lending right. But now we have to be realistic about other priorities, namely transposing the Directive on Copyright in the Digital Single Market, and discussions around public lending rights might need to be put on hold.  

Advocacy, Associations, Copyright, Copyright exceptions and limitations, eBooks, eLending, eLending for Libraries

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