Real Decreto-ley 24/2021, Use of Protected Content by Online Content-Sharing Service Providers (Article 73)

Article 73(1) treats an online content-sharing service provider as carrying out an act of communication to the public when it offers the public access to protected works or other subject matter that its users uploaded, and so requires it to obtain the rightholders' authorization first.

Article 66(6) defines such a provider as an information society service provider whose main purpose, or one of whose main purposes, is to store and give the public access to protected works or other subject matter, in large number or with a high level of audience in Spain, uploaded by its users, which the service organizes and promotes for direct or indirect profit.

The same paragraph excludes services such as online encyclopedias without direct or indirect profit, scientific or educational repositories without profit, open-source software platforms, electronic communications providers, online marketplaces and business-to-business and cloud services that let users upload content for their own use.

An authorization the provider obtains also covers, within its scope and on the same terms, acts by its users that fall under article 20 of the Intellectual Property Act, provided the users do not act commercially or their activity does not generate significant revenue. A provider that is liable under article 73 does not benefit from the limitation of liability in article 16 of Ley 34/2002.

Where the rightholder grants no authorization, the provider is liable for unauthorized acts of communication to the public unless it shows that it made its best efforts to obtain an authorization, made its best efforts under strict industry standards of professional diligence to ensure that works for which rightholders supplied relevant and necessary information are unavailable, and acted expeditiously on a sufficiently substantiated notice to disable access to the notified works or remove them and made its best efforts to prevent their future upload.

For live content, the provider must disable access to it or remove it from its website during the broadcast of the live event. A lighter test applies to a new provider that has operated in the Union for less than three years and has annual turnover below 10,000,000 euros. Cooperation between providers and rightholders must not prevent users from uploading content that does not infringe, or that is used for quotation, analysis, commentary or criticism, review, illustration, parody or pastiche.

Providers have no general monitoring obligation, and must give rightholders who ask adequate information every six months on how their cooperation practices work. Providers must set up an agile and effective complaint and redress mechanism for users whose uploaded works are disabled or removed, and works under complaint are not kept accessible while it runs.

Complaints must be handled within 10 working days, and decisions to disable access to uploaded content or remove it are subject to review by people, without automated intervention. Rightholders who ask for access to specific works to be disabled or for the works to be removed must duly justify their request. The First Section of the Intellectual Property Commission mediates or arbitrates disputes over access to and removal of works under the article.

Where a provider is liable for unauthorized acts of communication to the public, the actions and procedures of articles 138 and following of the Intellectual Property Act apply, without prejudice to any criminal liability of the provider. Article 138 of the Intellectual Property Act lets the holder of the rights it recognizes seek an end to the unlawful activity and compensation for material and moral damages. Article 73 sits in Book Four of the decree-law, which transposes Directive (EU) 2019/789 and Directive (EU) 2019/790.