2 Defining regulatory principles

2.5 Intellectual and industrial property and domain names

2.5.1 Copyright

The legal protection of copyright is crucial when engaging in e-commerce in the “information society”, since digital content protected by intellectual property (authorship, trademarks, image rights, etc.) constitute the real value added of the internet.

The Copyright Law⁴ establishes in article 10 that all original literary, artistic or scientific creations expressed by any means or on any medium, whether tangible or intangible, currently known or invented in the future, are copyrightable. Accordingly, all original creations are subject to protection, including graphic designs and source codes of, and information contained on, websites.

Website content will be afforded such protection as pertains to the specific category of the content (graphics, music, literary works, audiovisual, databases, etc.) and, therefore, the person in charge of the website must hold the related rights, either as the original owner (of the collective work under his management or developed by employees) or as a licensee.

In protecting intellectual property, the owner may seek both civil and criminal remedies. The Copyright Law affords the holder of the rights of exploitation the possibility of applying for the cessation of unlawful activities (e.g., a website unlawfully disseminating a protected work could be closed down) and of seeking damages. From a criminal law standpoint, the protection of intellectual property on the Internet is based on article 270 of the Criminal Code, which imposes prison sentences or fines for crimes against intellectual property.

Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society, was implemented in Spain through Law 23/2006, which amends the Copyright Law in order to harmonize the economic rights of reproduction, distribution and public communication (including new forms of interactive on-demand making available of works), with the rest of EU Member States and to adapt the rules governing these rights to the new operating procedures existing in the Information Society. Recently, Spain has placed itself at the forefront of the fight to strengthen copyright protection on the Internet in Europe. The Law 21/2014, of November 4, broadens the powers of the administrative body within the Ministry of Culture and Sport (the “Second Section of the Copyright Commission”), strengthening an expedited hybrid procedure of administrative and judicial nature to fast-track action for copyright infringement on the Internet. The purpose of this amendment is to force Internet Service Providers (ISPs) to take down unlawful content and, in some cases, to shut down websites which openly violate copyright legislation (including websites which actively provide lists of links to unlawful content). However, the amendment is not focused on individuals who share unlawful content through “peer to peer” networks.

Lastly, we must underline the elimination of the private copying levy, applied in Spain until January 1, which required collaboration from manufacturers, distributors and retailers of products “suitable for reproducing copyrighted works”. The former system was replaced in 2012 with a new form of compensation which shall be satisfied directly by the State to the copyright owners. The law 21/2014 consolidates the State-funded system.

2.5.2 Intellectual property

When engaging in e-commerce, regard should also be had to intellectual property matters. Article 4.4.c of the Patents Law 24/2015, in force since 1st of April 2017, provides that plans, rules, and methods for conducting a business, as well as software, cannot be patented.

2.5.3 Domain names

Another essential issue to take into account is the registration and use of domain names. In this respect, Order ITC/1542/2005 approved the National Plan for Internet Domain Names under the country code for Spain (“.es”). The function of assigning domain names under the “.es” code is performed by the public for-profit entity Red.es.

Order ITC/1542/2005, following international trends, simplified the system for assigning “.es” domain names, which can be requested directly from the granting authority or through an agent.

Thus, second-level domain names under the code “.es” are assigned on a “first come, first serve” basis. This assignment can be requested by individuals or legal entities and entities without legal personality that have interests in or ties with Spain. However, those which coincide with a first-level domain name or with generally known names of Internet terms will not be assigned.

It is also established that domain names under the codes “.com.es,” “.nom.es,” “.org.es,” “.gob.es” and “.edu.es” may be assigned in the third level. The persons or entities that can apply for the domain names will vary according to the codes. Thus, for example, the Spanish Public Authorities and the public law entities can request domain names under the “. gov.es” code.

Furthermore, the National Plan establishes that the right to use a domain name under the “.es” code is transferable provided that the acquiror meets the requirements necessary to own the domain name and that the transfer is notified to the assigning authority.

Also, one of the main features of Order ITC/1542/2005 is the establishment of an extrajudicial body of mediation and arbitration for the resolution of disputes concerning the assignment of “.es” domain names.