The Directive on Copyright and Related Rights in the Digital Single Market is the Community standard aimed at harmonizing the legislation of the countries of the European Union. A directive questioned as few that It should have been transposed - that is, incorporated into the respective national laws - on June 7. Spain has not.
During the last days of last May, there was speculation that the transposition, which will be carried out by reforming the Intellectual Property Law and has been baptized as #LeyUribes, would be carried out imminently by means of a royal decree law. Something that has not happened, although that could change in the next few weeks according to recent statements by the Minister of Culture and Sports, José Manuel Rodríguez Uribes.
Uribes assures that before bringing the reform of the law to the Council of Ministers, a meeting must take place with the European Commissioner Thierry Breton
The transposition should have occurred within the established period, in this case two years ending today. If this is not done, the European Commission can initiate an infringement procedure and initiate a procedure against the country before the Court of Justice of the European Union. A process that it can end with millionaire fines such as those that Spain has already received in the past, for example, due to the delay in the transposition of the directive on data protection.
6 months of grace ahead and a pending meeting for the Uribes law
Although the two years established in article 29 of the directive have ended, the Government has ahead a grace period of 6 months to carry out the transposition before being exposed to sanctions, as the director of the Content Creators and Industries Coalition, Carlota Navarrete, has declared to the EFE Agency. A term that remains to be seen if it is sufficient given that from the Culture they do not seem to want to take any step without first meeting with Thierry Breton, the European Commissioner for the Internal Market.
Rodríguez Uribes, in statements also collected by EFE on May 31, assured that Before taking the approval of the reform to the Council of Ministers, a meeting with Breton had to take place first. The reason? Receive instructions on the adaptation of the directive on copyright that, precisely, arrived last Friday.
"He promised to draw general guidelines for all countries," said Uribes, and he had not done so yet.
The minister assured that the commissioner "undertook to draw general guidelines for all countries" and had not done so. until that moment. "We have been through a whole process in Spain listening to all the press editors, because what I wanted was that when we make the decision, which will be when we close the formula, it be as inclusive as possible and as compatible with all sectors. But first these guidelines from the European Commission have to be produced, "added Uribes.
After the publication of the guide, which in particular addresses the adaptation of article 17, former article 13, of directive 2019/790, It remains to be seen in what way Spain moves, which is not alone in the delay of the transposition. As we can see in the Directive Implementation Tracker launched by the European association Communia, only the Netherlands and Hungary have completed the transposition, while the rest of the countries are at different stages of the process.
Only the Netherlands and Hungary have completed the copyright transposition
All this despite the fact that in countries like ours there would have been time. Rodríguez Uribes, who has ended up involuntarily baptizing the norm as happened in his day with Sinde and the law that he promoted, has been in office for a year and a half. The transposition could have been carried out through ordinary parliamentary procedures and with enough time for an open debate on it, without the need to go against the clock in overtime.
Entities such as Wikimedia Spain, Creative Commons Spain or Xnet have warned about "the opacity of the process carried out by the Government" and the effects of a "skewed transposition". "A transposition that is not respectful of fundamental rights can transform the directive into a legislative aberration worthy of the list of prohibited books of the Inquisition", assured Simona Levi, of Xnet. The implications that the old articles 11, 13 or 14 could have are numerous and the detractors of the directive consider it worrisome for the internet due to the action, for example, of algorithms when censoring or hindering access to information.
The directive does not apply yet
The directive, in accordance with community regulations, "is an act directed at the countries of the European Union and they must transpose it into their national rights." That's when it usually takes effect. But what happens when they should have been transposed to begin to apply and the process has not materialized? Well what could have a direct effect on a country, even though it had not incorporated it into its legal system. Although there are buts.
The Court of Justice of the European Union establishes in its jurisprudence that "A directive will have a direct effect if its provisions are unconditional and sufficiently clear and precise and when the EU country has not transposed the directive before the corresponding deadline", according to a judgment of December 4, 1974. However, this directive is not exactly clear.
Sánchez Almeida, lawyer: "That they take advantage of those six months because there is time to do it as ordinary law if it is done through an emergency procedure. That they do so, but in parliament and in full view of all."
As confirms to Genbeta the lawyer of Bufet Almeida and legal director of the Platform in Defense of Freedom of Information, Carlos Sánchez Almeida, this jurisprudence would not apply. "If you read articles 15, 17 ... and all the directive, clear and precise it is not, precisely for that reason it is necessary to adapt it to the national legislation, to fit it well ...", explains the lawyer. For this reason also, among others, the Member States have been asking the European Commission for the guidelines that were published this Friday.
Sánchez Almeida adds that, in this transposition, Spain must clearly establish "that, first, deletion decisions are ultimately made by people and not robots, and second, that there is the possibility of human review within the platform itself". For example, that big technology companies have a sort of internal courts that decide on the withdrawal of content. This without prejudice to the possibility of going to the ordinary courts to appeal against an elimination.
"That they take advantage of those six months because there is time to do it as ordinary law if it is done through an emergency procedure. That they do it like this, but in parliament and in full view of all", adds Sánchez Almeida.