On 1 March 2012 the Regulations describing how the Second Section of the Intellectual Property Commission works came into force, as envisaged in Royal Decree 1889/2011 of 30 December.
The SINDE Act was created in an endeavour to solve problems of Intellectual Property right infringements on the Internet that have not been settled through civil and criminal proceedings.
A new procedure has been developed for this purpose, which will be implemented by the so-called “Second Section” of the Intellectual Property Commission, formed by:
One representative of the Secretary of State for Culture, who will act as the chairman of the Section, and four spokespeople for the Ministries of Education, Culture and Sport, Industry, Energy and Tourism, Presidency, and Economy and Competitiveness.
This body will act on receiving claims from the “owners of intellectual property rights who consider their rights have been infringed” or the representatives of copyright owners. Such communications must be made by “electronic means”.
If the Second Section considers that the Website in question infringes said rights, it will identify the alleged offender and will ask the owner of the Website to remove the contents that infringe the Intellectual Property rights.
If they are removed or the service is suspended, the procedure ends here, but otherwise the claimant and defendant must submit a statement within a maximum of 48 hours. Within 5 days the Second Section will present its conclusions based on the evidence submitted by the parties.
It will then issue its decision within 3 days, and the parties concerned will be notified. Lastly, if the decision is final, it is sent to the Judge, who has 24 hours to authorise or reject it.
If the Second Section is unable to identify the alleged offender, it will ask the Central Administrative Court to request the owners details from the Internet service provider that hosts the website that allegedly infringes Intellectual Property rights.
It must be stressed that the Judge will decide whether or not to request the information on the basis of the application made by the Commission, within a maximum of 48 hours.
According to different sources, since the Law came into force the Ministry of Culture has already received 31 claims against various Websites that infringe Intellectual Property rights. Notifications are sent by organisations such as EGEDA, PROMUSICAE, ADESE and CEDRO.
There is a great deal of controversy regarding the effectiveness of applying this procedure, but time will tell and we will keep you informed of any news about its implementation.
Regardless of these new legal resources, companies must take the necessary internal measures to prevent violations of their Intellectual Property rights and avoid possible claims when using third-party contents.