New precautionary measures against online infringement introduced

Following an eventful parliamentary procedure, the Sustainable Economy Act (Law 2/2011) came into force on March 7 2011.

The act is a rather mixed bag containing a substantial set of amendments aiming specifically to develop the information society and encourage the relationship between companies, universities and researchers.

As far as IP rights are concerned, the new act includes the following measures:

  • The government is undertaking to issue, within a six-month period, rules that will contribute to speeding up and simplifying the grant of IP rights, and increasing their protection and effectiveness;
  • Official fees for the registration of IP rights will be reduced by 18% by 2012;
  • Fees will be reduced by a further 15% where the applications and submissions are filed on magnetic data carriers or electronically; 
  • The international policy of promoting the use of the Spanish language in international IP systems will be maintained; and
  • Companies that invest in technological innovation will benefit from tax advantages.
However, the most important novelty introduced by the act is the creation of a preliminary injunction procedure, which aims to cut off the service and remove the content from websites in relation to infringing activities. The act makes specific reference to copyright - however, it remains to be seen whether, at some point in the future, this might also serve as a basis for the enforcement of trademark rights on the internet.

The main features of this new procedure are as follow:

  • Injunctions will be granted by an administrative body (ie, the Intellectual Property Commission);
  • Service providers must submit the data necessary to identify infringers;
  • An order to cut off the service and remove the content from the website may be issued within a 12-day period; and
  • The enforcement of certain decisions may be subject to judicial authorisation.
This is an innovative system which will undoubtedly put the Spanish authorities' reaction capacity to the test.

Carlos Morán Medina, Elzaburu, Madrid

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