Spain: New reform proposals further support content creators

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

There has never been an "Aereo" case in Spain, so no one can say for certain which way such a case would be decided before a Spanish court.

Similar issues have, however, come before Spanish courts in the past. The closest case law that exists in Spain deals with the access to copyrighted works by hotel customers and hospital patients. In a way, these echo the discussions held in the US case about whether individual access to audiovisual works may fall within the scope of the exclusive right to public communication. However, this isn't much to go on.

All that being said, the legislative winds seem to be blowing against a "Spanish Aereo". Looking at the rationale/direction of the current reform of the Spanish Copyright Act (which aims at introducing a more robust protection of right holders in the digital environment), it seems that Aereo's (or other similar services) chances to overcome broadcasters' claims would certainly decrease should the current reform proposal progress to approval.

For instance, the private copying exception (a potential defence in case a court held that the storage of the selected TV programmes is made by final users and not by Aereo) is intended to be applied more restrictively. Amongst other things, in order to qualify as private copy, there can be no assistance of third parties to carry out the reproduction. In addition, some copies would be expressly excluded from the private copying exception - namely reproductions of works which have been communicated to the public by wired or wireless processes, so that any person can access to them from a place and at a time chosen by him, with the reproduction of the work being authorized according to that agreed by contract and, where appropriate, through the payment of a price.

Furthermore, so-called "indirect infringement" (considered as a relevant issue by the dissenting opinion in the US Supreme Court decision), whereby cooperators and those inducing / facilitating the infringing conduct may also bear liability, would, as part of the proposals, be viewed as prohibited conduct. This would mean that a potential defence by an Aereo equivalent in Spain that seeks to attribute exclusive responsibility to final users would have to be dealt with more cautiously.

As the new proposals progress towards approval, the chances for a "Spanish Aereo" are narrowing. However, it won't be until the first case hits the courts that we will have a judicial precedent to go on in Spain.

To learn more about the implications of the Aereo decision, read our Aereo and the future of cloud TV report.