Propiedad Intelectual en Internet: los retos de su tutela judicial
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Under the title “Copyright on the Internet. Challenges of its judicial protection”, this doctoral thesis is aimed at analysing whether, under Law as it currently stands, our legal system offers adequate and appropriate mechanisms of judicial protection in order to protect copyrights from infringements committed online. The initial hypothesis of this research study is that in recent years, our National Law, along with European Union Law, have set forth a system which enables to obtain copyright legal protection before the Spanish courts. Nevertheless, the efficiency of this judicial protection poses a challenge and in order to overcome this challenge, it is necessary to know the particularities of the subject and to use the different procedural mechanisms correctly. For the stated purpose, our research uses as a point of departure the legal reality that is subject matter of the thesis (i.e., the three models of illicit exploitation of copyrights that coexist at present on the Internet), just as substantive law provisions that regulate the topic (notably, copyrights regulated in the Spanish Copyright Act, as well as Internet service providers regulated in the Spanish Information Society and Electronic Commerce Services Act). Notwithstanding, this doctoral thesis is presented from the perspective of Civil Procedural Law, and is divided in four chapters in line with the main procedural institutions studied: court jurisdiction, standing and defendants, preliminary proceedings and forms of relief. As is apparent from their titles, the subject of each chapter is to provide an in-depth examination of the Procedural Law key issues regarding the legal problem that copyright infringements committed on the Internet suppose. By doing so, at the end of our research an answer to the following questions is provided: where it is possible to sue, who can bring such a legal action, against whom should the legal action be taken, how to discover the identity of the infringer and what could be requested. The methodolody used for the elaboration of this doctoral dissertation is the same as that employed in any legal research work. The object being to examine the possibilities offered by the Spanish Civil Procedure to resolve conflicts derived from a non-authorised use of copyright-protected content. The initial point of our research is the existence of rules regulating the topic; nonetheless, these rules (originally envisaged for the analogue world) require to be interpreted in order to allow their entire application to the specificities of copyright infringements committed on the Internet. In order to achieve this aim, two research methods have been used, in a cross-cutting way, throughout our study. On the one hand, the legal-descriptive method, used to present the different substantive and procedural features of the subject matter in a systematised manner. On the other hand, the legal-proposing method, used to put forward solutions to interpretative problems and to offer a proposal for future reform with regard to legal loopholes. Besides that, the sources of information employed for the composition of this doctoral thesis have been the same as those of any legal research work: sources of law, case-law, academic doctrine and informative materials related to the current reality of the problem. These sources have served to cover the three aspects deemed necessary to understand for the purpose of elaborating the presented research work: the reality of the legal problem studied (i. e., the Internet, models of illicit exploitation and how they work), the substative law (issues on copyright and information society) and the procedural law (concerning court jurisdiction, parties before the court, preliminary proceedings and forms of redress). Due to their current interest, and the fact that they have offered a new framework to the subject matter, among the mentioned sources of information, there have become particularly important the Spanish Act 21/2014 (which amends Spanish Copyright Act and Spanish Civil Procedure Act), as well as ECJ case-law (which has interpreted in recent years some of the difficult issues). After exposing the aims of this study and the methodology used, the most significant aspects of our research should be pointed out, moreover, the final conclusions should be set out. The starting point of this research study is the fact that intangible assets find on the Internet an ideal means for their wide diffusion. With reference to copyrights, the development of technology has lead to the emergence of models of exploitation based on carrying out acts of reproduction of copyright-protected content (exclusive right according to article 18 of Spanish Copyright Act), as well as acts of making the copyright-protected content available to the public (exclusive right according to article 20.2.i) of Spanish Copyright Act). At the present time, three models of illicit exploitation online of these rights coexist: streaming, direct downloading and peer-to-peer network exchange, being the main feature of all of them the number of individuals who play a part in the model of exploitation. Streaming consists of enjoying the works online without downloading any files (it is only needed to store a temporary copy of the work in the data buffer of the electronic device). Direct downloading implies obtaining a file that is stored on a permanent form on the user’s electronic device (it is possible to make new copies of the work from this file). By using a peer-to-peer network exchange, the user also downloads a file that could be reproduced and could result in new copies; nevertheless, while the first and the second model of exploitation are set in motion from an Internet site (it being sufficient to have a web browser), the peer-to-peer exchange requires a previous software installation that, by using a complex engineering, articulates a download from a link containing the necessary information to embed the file from the hard drives of the different users (peers), who are plugged in the peer-to-peer network at that moment. All these models of exploitation, when they are used to carry out acts of exploitation withoug having obtained the authorisation of the copyright holder (and it is not possible to include them within the limits accepted by Spanish Copyright Act), deserve the qualification of illicit. The acts of reproduction and the acts of making the copyright-protected content available to the public, constitute what has been called piracy on the Internet. The above-mentioned illicit activities benefit from the anonymity provided by the Net, and they allow Internet users to enjoy copyrighted works wihout compensating the copyright holder. In addition, these illicit activities are building, around the models of illicit exploitation, an economic infraestructure in which a plurality of individuals participate. In this way, by using the Internet, infringements against copyrights are committed, these infringements are characterised by their ongoing development in the course of time and by causing damage to an exponential growth. This legal research studies the way in which the copyright holder can obtain legal protection of their rights before the Spanish courts. The first chapter is intended to study the issues related with courts jurisdiction. The aim of this chapter is to answer the question as to where to bring the action (in other words, which is the competent and appropiate Spanish court to decide the case when copyrights have been infringed across the Internet). In order to address this question, there are four aspects that need to be examined: the Spanish international jurisdiction, the delimitation of competences between the Public Administration and the Courts, the extend of jurisdiction of the Spanish Criminal courts with regard to crimes committed against copyright and the objective, functional and territorial competence of the Spanish civil courts to hear the case on infringements committed online. The initial point of our jurisdiction exam is the fact that, when copyrights are infringed on the Internet by using the different models of illicit exploitation, there is not a previous contractual relationship between the parties involved. Therefore, it constitutes an illicit of civil nature and, in detail, it is a case of non-contractual civil liability. For this reason, the copyright holder is entitled to bring legal actions of compensation, cessation and publication of the judicial decision, as well as to apply for a precautionary measure to guarantee the effectiveness of the sentence eventually pronounced. In the absence of any more specific regulation on the topic (copyright, the Internet, and non-contractual liability), the study of the international jurisdiction of the Spanish courts is carried out from the rules provided in the Brussels I Regulation Recast (as they have been interpreted by the ECJ for the set of facts of our study). Moreover, but in a subsidiary manner, the study is carried out from the regulation provided in Spanish Law on the Judiciary. In both cases, it is brought to light that there is a diversity of forums of jurisdiction that allow Spanish courts to deal with the case on copyright infringements committed on the Internet (implied prorogation of jurisdiction, the domicile of the defendant, place where the damage occurred, place of materialisation of the direct damage and so on). These forums could be applied even when de defendant is not domiciled within the territory of the Member States of the European Union. Notwithstanding, this examination is carried out from a critical perspective on the basis of the characteristics of the illicits which are being studied. Therefore, if it is true that jurisdiction could be conferred to Spanish courts in situations marginally linked to our State, the plaintiff should assess whether it is convenient to file a complaint in Spain. In order to do so, the plaintiff should consider the possibilities of obtaining the effective legal protection of their rights from the Spanish courts (this will happen, for instance, if the defendant is domiciled within the territory of the Spanish jurisdiction). The delimitation of competences between the Public Administration and the Courts is focused on the study of the different functions that have been assigned to the Second Section of the Spanish Copyright Commission. According to Spanish Copyright Act, this administrative authority is in charge of ensuring the safekeeping of copyrights in the digital realm. This assignement is achieved by using the so-called procedure in order to re-establish the legality, in order to do so, the Second Section could request the identifying data from the alleged infringer, as well as impose restrictive measures geared towards the suspension of the information society service or the withdrawal of the illegal content. Nevertheless, even though copyright holders and legal practitioners have recoursed to this procedure to re-establish the legality in order to put infringements to an end in a prompt way, the procedure poses two types of problems. On the one hand, the need of this procedure could be questioned, especially because the reform introduced by Spanish Act 21/2014, together with ECJ case-law on Internet links, allow to obtain before the Spanish civil courts effective judicial protection of copyrights –albeit at a greater speed. On the other hand, the assignement of this procedure to an administrative authority is not compatible with the Spanish Constitutional principle which reserves jurisdiction exclusively to Courts (and, in this case, the Second Section is solving a private law dispute between two individuals). In addition, this assignement to an administrative authority could result in a jurisdiction conflict between the Administration and a judicial body, or even in competence problems between judicial bodies from different judicial orders (civil and administrative). When copyright illicit exploitation on the Internet constitutes a crime, jurisdiction to deal with the case lies at the Spanish Criminal courts (to the detriment of Spanish Civil courts). Accordingly, the Spanish Criminal Code reform introduced by Spanish Organic Act 1/2015 has increased criminal protection of these rights in the digital realm and has improved the wording of this specific crime. For the purpose of our research, it is particularly relevant to distinguish in which cases the infringements committed will be a civil wrong and when they will be a conduct which constitutes a crime. However, even though copyrights infringements committed on the Internet constitute a crime, according to article 272.1 of Spanish Criminal Code, civil claims for damages based on acts giving rise to criminal proceedings are regulated by Spanish Copyright Act. In these cases, rules on compensation for damages and cessation of the illicit activities provided in articles 138 to 141 of Spanish Copyright Act will be applied by criminal courts according to what is exposed in this research study (without prejudice to the respect of the criminal proceedings and liability special features). The study of courts jurisdiction is completed with questions concerning the objective, functional and territorial competence of the Spanish civil courts to deal with infringements committed on the Internet. The objective and functional competence does not pose any problem on the current state, this competence belongs to Commercial Courts, in order to solve the conflicts on the first level of judicial review, and to the Specialised Section of the Regional Courts at second instance. This competence should be extented to the civil procedure in its entirety, this includes preliminary proceedings, precautionary measures, appraisal of the evidence in advance and preserving evidence. In respect of territorial competence, it has a mandatory nature, hence the parties are not able to freely dispose of it by using the prorogation of jurisdiction (implied or prior agreement). Nonetheless, Spanish Civil Procedure Act confers to the plaintiff the right to choose between a range of forums that, due to the characteristics of the Internet, will lead to the Commercial Court of the place where the defendant is domiciled in the majority of the infringements. Finally, when it comes to copyright infringements on the Internet, it is common to find the consolidation of actions as well as the diversity of defendants. Irrespective of having an objective consolidation or an objective-subjective consolidation, according to article 53.1 of Spanish Civil Procedure Act, the court which has competence over the action that is basis for the others will have competence to deal with all the claims. The second chapter offers a detailed examination of all the questions regarding standing and defendants related to infringements commited against copyrights online. This chapter has a twofold aim, on the one hand, it is intended to answer the question of who is entitled to bring an action in order to seek legal redress of these rights. On the other hand, it tries to solve the query of against whom it is possible to file a lawsuit provided the turnout of a plurality of subjects involved in the infringement. In terms of copyrights, it is possible to distinguish three different types of applicants with interest in bringing proceedings (these are the only ones entitled to file a lawsuit). In the first place, the holders of copyrights that have been illicitly exploited on the Internet are entitled to request legal protection before the Spanish courts. They have what it is called an ordinary standing, derived from the ownership of copyrights (a subjective right), this entitlement is explicitly recognised in article 138.I of Spanish Copyright Act (even though this express provision was not necessary). On the Internet there could only be infringed two exclusive rights of exploitation: the right of reproduction and the right of making available to the public. Despite this, the copyright holder entitled to bring legal actions provided under articles 138 to 141 of Spanish Copyright Act changes in accordance with the protected work that has been illicitly exploited. Because of that, our research differentiates the statutory regim to which strictly copyright holders would be subject, i.e., the rights of the author (a concept that only includes the author of the work and the different creators of a coauthored work). As well as the statutory regim which corresponds to holders of rights related to copyrights, who are also entitled to bring legal actions (this concept includes performers, producers of phonograms and films, broadcasting organisations among other agents). In the second place, there is what is known as an ope legis standing, recognised under article 48.I of Spanish Copyright Act in favour of the exclusive copyrights assignee. In this manner, our legal framework confers to these subjects a legitimised position by means of a procedural substitution provided by law. It allows the exclusive assignee to exercise on his own behalf rights whose holder is another person. When the assignee has the exclusive over the two copyrights that could be infringed on the Internet: reproduction and making available to the public, they would be entitled to bring the legal actions under Spanish Copyright Act to protect these rights against infringements committed on the Internet. By contrast, there are two kinds of assignees who are not entitled to exercise the above-mentioned legal actions to protect copyrights from illicited activities performed online. On the one hand, assignees whose cession involves exploitation rights over the works infringed on the Internet but do not include reproduction rights nor the right of making available to the public. On the other hand, the non-exclusive assignees of reproduction rights and the right of making available to the public. In both cases, the assignee could only be part as an intervener of the civil procedure based on Spanish Copyright Act and started by those who are entitled. In addition these assignees are entitled to file a lawsuit against the infringer under Spanish Unfair Competition Act and on the grouds of unfair trade. In the third place, manegement entities of copyrights have what is called an extraordinary standing. These entities are entitled under article 150 of Spanish Copyright Act to take action as plaintiffs on a civil procedure aimed at protecting copyrights whose management have been entrusted to them. In these cases, the management entity will not file a lawsuit to protect copyrights characterised by being of mandatory collective management by law. Nonetheless, the extraordinary standing of the management entity should be extended to legal actions geared towards obtaining compensation, cessation and publication of the judicial decision against infringements committed on a large scale on the Internet. What has been stated is justified particularly in the need for protecting copyrights through a collective standing, on account of the special features of this type of infringements (technical complexity of the models of illicit exploitation, the amount of copyright-protected content that is offered, the large number of copyright holders affected and so on). Be that as it may, this does not prevent management entities from acting in a civil procedure defending particular interests of one or several of their represented. In these cases, the management entity should prove its voluntary representation in order to take parte of the civil proceure as a plaintiff. The higher number of subjects that could be part of the civil procedure as respondents due to their involvement in illicit activities introduces greater complexity to our study. In this research, the different agents that could become defendants according to article 138 of Spanish Copyright Act are systematised in three categories. It has been systematised by using the criterion of their links with the infringements committed online: direct infringer, contributory infringer and intermediary service providers whose position is neutral. First of all, the subjects that take part in the infringement as direct infringers. According to article 138.I of Spanish Copyright Act, this category includes all the agents that carry out, by themselves, acts of reproduction or acts of making copyright-protected content available to the public. In the current state of techonology development, it is necessary to differentiate three types of agents who are examined thoroughly in our research. First, the content provider, with particular reference to the differences between the website owner-content provider and the host 2.0 as a type of intermediary service provider. Second, the user, distinguishing between the user who only enjoys the works offered and the user who plays an active role acting as a content provider. And, third, the linker (the agent who offers links), this requires to differentiate in accordance with the type of website or search engine, as well as the characteristics of the link: deep linking or surface linking. As it is explained in our study, the nuances between all the different agents are important to the extend that they have an effect on the legal regim that is applied to each one of the subjects. Secondly, the subjects that take part in the infringement as contributory infringers according to the new wording of article 138.II of Spanish Copyright Act. Our study makes a clear distinction between two parts. The first part intends to provide the three conduct defined in the above-mentioned rule with an interpretation suited to infringements committed on the Internet. For this reason, it is focused on conceptualising those activities that could be seen as knowingly inducing the infringing conduct, cooperation with the infringing conduct knowing it or under reasonable evidence to know it, as well as having a direct economic interest in the results of the infringing conduct and the ability to monitor this. By taking into account the main characteristic of each one of the models of illicit exploitation, the second part exposes the different subjects who, without carrying out by themselves acts of reproduction or acts of making available to the public, are developing activities which could be included among the three conducts described as contributory infringements (agents responsibles of the peer-to-peer software, hosting provider 2.0 and linkers of surface among others). Thirdly, the subjects that are intermediary service providers and maintain a neutral position regarding infringements committed on the Internet. These agents are not infringers, however, article 138.IV of Spanish Copyright Act explicitly recognises that they can act as defendants in a civil procedure aimed at protecting copyrights. This rule entitles the applicant to exercise against these intermediaries the legal action of cessation, claiming the suspension of the service rendered and through which copyrights are being infringed. It is possible to sue any of the intermediary service providers regulated in the Spanish Information Society and Electronic Commerce Services Act, even though they are discharged of any liability regarding the infringements committed by using their service. Nonetheless, it becomes vital to examine the possibility that they could be sued as direct infringers (this could happen with linkers), or as contributory infringers (this could occur with hosts 2.0). As it is shown in the fourth chapter of our research, the cessation action, as well as the precautionary measures, against the Internet access provider and the hosting service provider are particularly relevant. This relevance is due to their position, which allows them to monitor (or at least to avoid), the illicit activities. The third chapter is focus on the study of a very specific aspect of civil procedure: preliminary proceedings aimed at discovering the identity of the future defendant (it constitutes a fundamental mechanism of judicial protection for the subject matter of this thesis dissertation). The third chapter intends to answer the question of how to obtain the necessary information, according to article 399.1 of Spanish Civil Procedure Act, to bring an action against the infringer who is hidden taking advantatge of the anonymity offered by the Internet. Previously, preliminary proceedings for copyright infringements were already regulated in our legal framework, nevertheless they could not be used as a legal base to discover the indentity of the copyright infringer on the Internet. This situation changed with the reform operated by means of Spanish Act 21/2014, this regulation has introduced new provisions under article 256 of Spanish Civil Procedure Act through two preliminary proceedings which allow the future applicant to obtain the data needed to file a lawsuit. These preliminary proceedings can be used to discover the identity of the Internet service provider or the Internet user if there is reasonable evidence that the alleged infringer is making copyright-protected contents available to the public or disseminating these copyright-protected contents. Both preliminary proceedings are subject to a series of requirements which are not uncontroversial. The problem with these requirements is that not only are they unclear regarding some aspects, but also, depending on their interpretation, they can restrict significantly their field of application (and, therefore, their utility). In addition to this, another problem is that, in the real world, it is not always easy to obtain the previous information needed to request these preliminary proceedings to courts in order to discover the identity of the infringer. For instance, it is difficult to know who is the service provider to whom the question will be addressed asking for the data of the infringing provider, also, it is difficult to find out the IP address that will, indeed, direct us to the user who committed the infringements. In our research, an interpretation of these preliminary proceedings is proposed as a way of respecting what has been established by the legislator, but also, with a view to avoid emptying them of content. This interpretation will make it possible to apply these preliminary proceedings without excessive legal hindrances added to the difficulties encountered in the real world to obtain the previous data. The fourth chapter is devoted to the study of the issues concerning the different forms of relief provided by our legal system to protect copyrights against infringements committed on the Internet. The purpose of this chapter is to answer the question of what can be requested and obtained as a sentence against the responsibles (direct or contributory) of the infringement, as well as against intermediary service providers. In order to answer this question the different claims that the plaintiff can demand from the defendant are analysed. It involves the study of all the forms of relief regarding copyright infringements committed online, thus, an examination of the cessation sentence, the compensation sentence, the publication of the judicial decision sentence, the judicial enforcement of the sentence as well as the relevance of interim relief to guarantee the effectiveness of the sentence is conducted. Our research is focused on considering which should be, in our opinion, the best procedural strategy to obtain an effective judicial protection of copyrights (i. e., what should be requested, against whom should it be requested and with which order of preference). Notwithstanding the fact that the exercise of other legal actions is possible, this research examines the three forms of relief regulated under article 138 of Spanish Copyright Act: cessation, compensation and publication of the judicial decision. All of them can be requested as part of the Spanish civil declaratory proceeding, in addition, even though they constitute different claims, they are usually brought together before the court. First, according to article 139 of Spanish Copyright Act, it is possible to obtain a sentence of cessation of the illicit activities, this injunction can be obtained against the direct infringer and against the contributory infringer. This legal provision has not been modified by Spanish Act 21/2014, for this reason, our research is focused on offering an interpretation of this rule that allows its application to infringements committed against copyrights on the Internet. The interpretation that makes it possible to extend the above-mentioned provision to the subject matter of this doctoral dissertation is carried out in connection with the claims of suspension of the illicit activities, prohibition of resuming the infringements, disablement of IT tools employed for reproduction acts and removal of the equipment used to acts of making available to the public. In addition, it is exposed how the injunction of cessation against intermediaries should be implemented by taking into accout the recent case-law of the ECJ. Second, in accordance with article 140 of Spanish Copyright Act, it is possible to obtain a sentence of compensation for the damages caused, it is necessary to link this rule with article 138.II of the same Act. This provision recognises that contributory infringers will be considered responsible for the infringement, by doing so, it makes it possible to affirm that, between the contributory infringers and the direct infringers, joint and several liability is established with regard to the total amount to be compensated. However, due to the fact that the different subjects involved in the model of illicit exploitation have carried out different activities, there will not be established any situation of necessary passive joinder of defendants for the reason that, each one of their activities has sufficient entity by itself to be considered an infringement and the claim against each one of the different infringers will have its own object. It should be added that, the amount eventually claimed will include emerging damage and loss of profits. For the purpose of the determination of this amount, Spanish Copyright Act allows to use the criterion based on the negative economic consequences caused by the infringement to the copyright holder, or, indistincly, the criterion based on the royalties that the copyrights holder would have received in exchange of authorising the acts of exploitation. Third, as part of the Spanish civil declaratory proceeding, a sentence for the publication of the judicial decision can also be requested, this is possible inasmuch as it is explicitly recognised under article 138.I of Spanish Copyright Act. The publication of the judicial decision is a legal action of an ancillary nature, because it will only be upheld by the court if the existence of an infringement is recognised. Similarly, it will be necessary for the plaintiff to support the judicial protection requested on the grounds of a legal interest different from the one that is covered by actions of cessation and compensation. This legal interest could be justified by the informative and preventive purposes of publicating a judicial decision that sentences copyright infringers. Regarding copyright infringements committed on the Internet, it is interesting to use the infringing websites or software to publish the sentence through these media. For the case that the respondent does not voluntarily fulfill the sentence imposed after the declaratory proceeding, judicial enforcement should be articulated by the courts. Due to the particularities of the enforcement of an injunction of cessation, this research is only focused on the enforcement of the different conducts (to make something or cease to make something), that could be imposed in the judicial decision sentencing to bring an end to the illicit activities. Our study explains the diverse enforcement mechanisms provided by our legal system, this is exposed by taking into consideration two aspects: the obligation imposed by the judicial decision and the characteristics of the respondend who must comply with the judgment. Particularly relevant is the distinction between, on the one hand, enforcement mechanisms in case of non voluntary compliance of the sentence of cessation by direct and contributory infringers. On the other hand, enforcement mechanisms in case of non voluntary compliance of the sentence of cessation by intermediary service providers who have maintained a neutral position regarding the infringements. All these cases constitute obligations of non-personal nature, for this reason it is possible to commend its enforcement to a third party. Interim relief against copyright infringements puts a halt to this fourth chapter, this relief is regulated under article 141 of Spanish Copyright Act, although subject, in adddition, to general provisions of Spanish Civil Procedure Act. The precautionary protection can be obtained for any of the different legal actions related to copyright infringements and studied in our research, notwithstanding, this protection is especially relevant in connection with the injunction of cessation of the illicit activities. Precautionary measures of cessation serve a twofold purpose, inasmuch they serve to guarantee the effectivenes of the legal protection granted by a judgment upholding the plaintiff position and, at the same time, they anticipate orders and prohibitions of interim nature whose content is similar to what is claimed in the lawsuit. Also in this case, precautionary measures require to interpret provisions of Spanish Copyright Act in a manner that makes their application possible to infringements committed online. This allows to request interim relief against owners of the infringing website, agents responsible for the peer-to-peer software, users that make copyright-protected content available to the public as well as intermediaries who offer the services used to infringe copyrights. Proceedings to grant these measures are regulated under general provisions of Spanish Civil Procedure Act, in this sense, it is defended that it is important to use the exceptions that allow to request the interim measure before filing the lawsuit (in order to have more time to prepare its wording in such a complex matter), as well as request the adoption of the interim measure without a prior hearing of the defendant (to maintain the element of surprise and to avoid the risk of informing the infringer). After the elaboration of this doctoral thesis, the general conclusion reached is that, in recent years and by diverse legal agents (Spanish legislator and European Court of Justice among others) a new legal framewok has been established. This new framework introduces significant improvements in copyrights protection against infringements commited on the Internet. The improvements have allowed to cover in a gradual manner, the classic shortcomings of the system and the lack of legal certainty regarding some aspects. A set of conclusions on these improvements are exposed at the end of our research, as well as other aspects that still need to be improved. Nevertheless obtaining effective judicial protection against these infringements continues to present itself as a challenge. This challenge requires knowledge on the main features of the different models of illicit exploitation along with using correctly the procedural mechanisms provided by our legal order.