The need to update the legislation on intellectual property rights

Many people say that the advance of science, especially what refers to the massive digitization of contents (mostly protected by Intellectual Property) and its easy and immediate distribution on a world scale, is sufficient reason to continually reform (update) the laws that govern this matter. Others point out that the correct application of the regulations in force in most of the countries allows to resolve the conflicts that may arise, provided that there is a rigorous analysis of the specific case and a progressive historical construction is applied to the legal texts. At the risk of appearing eclectic, we think that setting a position in favor of any of these opinions limits the activity of the lawyer and ties up the forensic practice, a noble work that corresponds to us as lawyers in full freedom of action.

What we accept today without limitation, four decades ago was a topic of discussion regarding the applicability or not of its Intellectual Property protection. Let’s take the Related Rights (of artists, performers, broadcasting organizations and producers of phonograms) as a reference. Nobody currently denies their condition as productions that deserve legal protection, but in the case of Venezuela and other countries, their regulatory inclusion barely exceeds two decades. For illustration purposes, we can refer to today’s debate of whether the performance in embodying a character in a cinematographic work would give the performer the prerogatives of an author.

In Latin America, our firm achieved the first pre-trial precautionary measure, the seizure of computers containing unlicensed software, when the said works were not even included in the exemplary list of works protected by the Law on Copyright at the time. It sufficed a correct judicial construction of the legal nature of the work jointly with a sense of equity.

A long time ago, in Spain was unlikely to think of the existence of a compensatory method such as the canon digital (a blank media levy, i.e., an equitable compensation system for private copying). However, it was adopted by legislation and its existence was been filled with the drama necessary to make a television series: the levy was created [1]; the taxable persons rebelled against paying it; a collective management entity charged 300,000 Euros to a business and the owner lost even his house; Google News disappeared from Spain because of the AEDE levy [2]; the levy died by a judgment of the Spanish Supreme Court declaring that the levy established by Royal Decree Law No. 1,657 was null and void; the levy was brought back to life by Royal Decree No. 1.996 of April 12 this year [3]; it was strengthened to such an extent that the estimates point to a collection of six times the damages caused by private copying [4], which however is considered low [5] and it is predicted that will be finally paid by consumers [6] in accordance with the products they acquire. What will be the next episode of this “drama”?

I bring up the Spanish levy as an example of a controversial method. But beyond the discussions about its suitability, form or way of application, setting rates, the legitimacy for its collection, destiny of funds, public utility, social interest, or the impairment of the right to culture, there are countless legal topics that require jurisprudential or legislative approach, trying to connect the reality with the regulatory needs, without the latter being understood as a way to stop or slow down the progress of the facilities provided by new technologies, for example, regarding public communication and distribution.

What seems unquestionable is that the country requires a new Industrial Property Law, regardless of the position taken regarding the frequency in which regulatory texts should be updated. We can even say that more than a law, Venezuela needs a Code that manages to encompass different areas, extending to fields that should be addressed, such as unfair competition, right to image, trade dress, and franchises, to mention just a few.

Sources and notes:

Book image created by Jannoon028 – Freepik.com
[1] Article 25 of the Spanish Intellectual Property Law of 1996.
[2] It is certainly not a canon digital, but it is known as a kind of compensatory payment proposed by the Association of Spanish Newspaper Publishers (AEDE). In February 2014, the draft law came out of the Council of Ministers with a great novelty: article 32.2 that, according to the Government, intended to “adapt” the quotation or review limit to the scope of content aggregators or search engines on the Internet and transfer to this environment the compensation that already existed for press clipping.
[3] The Spanish Association for the Development of Intellectual Property (Adepi) has stressed that the approved model retrieves the private copying model “in force throughout Europe, which charges a fair compensation to importers and manufacturers of equipment, and reproduction devices and media”
[4] Specifically, the studies carried out by independent auditing companies such as Mazars, KPMG and PWC conclude that during 2012, 2013, 2014 and 2015 the economic damage from private copying amounted to 51,729,168 euros, an average of less than 13 million euros per year.
[5] The Association for the Development of Intellectual Property (Adepi) highlights that it considers the possibility of reimbursement for an “exclusively professional” use, excluding many conducts that were previously considered unlawful, but insisting that the average per capita collection by citizen in Europe is insufficient. As noted, this aspect is “unfortunate”, because the rates established by this Royal Decree Law are “low” compared to the European average and “especially” to countries such as Italy, France, Holland or Germany. However, such rates are qualified as “transitory” and will have to be revised.
[6] Official Gazette of the State, the digital levy will be applied provisionally to mobile phones capable of playing videos and sounds 1.1 euros; USB memories and hard drives 24 cents; 3.15 euros for tablets; 5.45 for sound or video players; and 6.45 for non-integrated players; printers between 4.5 and 5.25; disk recorders between 0.33 and 1.86; compact discs for reproduction between 8 and 28 cents.