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Back to Un nuevo mazazo al "canon digital": La Audiencia Nacional declara la nulidad de su orden reguladora
Eduardo Valpuesta, Full Professor of Commercial Law, University of Navarra
A new blow to the "digital canon": the Audiencia Nacional declares the nullity of its regulatory order
The so-called "digital canon" does not win for scares. Since its implementation in 2006, its history has been full of discussions and, lately, court rulings. This canon was created as compensation for intellectual property authors. Protected works (literary and artistic works, songs, etc.) may be lawfully copied, if such copying is intended solely for private use. This lawful copying, however, is detrimental to the authors, as it usually means less sales of their creations. That is why the Law establishes a "royalty" to be paid, applied to the devices capable of making this kind of copies subject . The amount of this royalty, and the taxed devices, was determined by the Ministerial Order of June 18, 2008. Thus, when purchasing a cell phone equipped with an MP3 player, a fee of €1.10 is paid, and €0.30 when purchasing a report USB . The proceeds are mainly used for distribution among authors.
The Court of Justice of the European Union already considered, in October 2010, that the regulation of the royalty could be contrary to EU law, as it implied charging it to all purchasers, without any discrimination (for example, a professional does not normally acquire a DVD for private copying). From agreement with this, the Provincial Court of Barcelona has given this month the reason to a business that had refused to collect the fee to the purchasers of their players.
Well, the Audiencia Nacional, in a judgment of March 15, 2011 (which can be appealed), has also proclaimed the nullity of the aforementioned Order of 2008. The reasons were purely procedural: when it was drafted, no opinion was issued by committee of State, nor were the necessary justification reports attached. These "procedural flaws" lead to the nullity of the Order. The plaintiffs also requested the return of all the money collected by the "digital canon", but the Audiencia Nacional considers that it cannot resolve this issue, as it is skill of the civil courts.
Although this resolution does not affect the content of the regulation, it is obvious that the regulation of the "digital canon" shows important defects. Not only is it an indiscriminate levy, but also the rule that specifies it was prepared without following the relevant procedures. Problems of substance and form. In any case, the claim for reimbursement of the amount charged has not been upheld: each court decision continues to give the plaintiffs a piece of cake and a piece of sand.