Modifications on intellectual property, business-to-consumer relationships and retail

On November 3, 2021, Royal Decree-Law 24/2021 (“RD-L 24/2021”) of November 2, 2021 was published on the Official State Gazette. RD-L 24/2021 is aimed at transposing various EU directives covering different legal matters. RD-L 24/2021 transposes directives that significantly modify intellectual property, business-to-consumer relationships and retail legislation.

Chapter IV of RD-L 24/2021 transposes Directive (EU) 2019/790, on copyright and related rights in the Digital Single Market and Directive (EU) 2019/789, laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organizations and retransmissions of television and radio programs.

We have reported on the processing of this reform in various blog entries. In sum, by transposing both directives on intellectual property, the reform provides:

• A new specific regulation on the use of copyright-protected content by online content-sharing service providers.
• A new right for publishers of press publications and news agencies regarding the online uses of their publications.
• A new regulation on fair remuneration for authors, artists and performers in their respective exploitation contracts, as well as significant modifications of copyright transfer regulation, both generally and regarding specific transfers (particularly in the regulation of publishing contracts).
• A new regulation on online transmissions of broadcasting organizations and retransmissions of television and radio programs.
• New limitations on intellectual property rights (particularly regarding text and data mining, the use of works or other subject matter in digital teaching activities, including online and cross-border activities, the preservation of cultural heritage and pastiche)
• A set of measures to improve licensing practices and access to content, particularly by cultural heritage institutions.

Chapter VI of RD-L 24/2021 transposes Directive (EU) 2019/2161, modifying various EU directives on consumer protection rules. As a result, RD-L 24/2021 introduces different modifications in the Consumer Protection Act, the Unfair Competition Act and the Act on Retail Trade.

See below the most significant modifications introduced in those provisions:

• Businesses will have new information and transparency requirements with respect to consumers, particularly regarding access to services allowing consumers to (i) search for products based on a query in the form of a keyword, phrase or other input; or (ii) access reviews from other consumers on third party providers’ goods and services.
• New penalty rules are established for consumer law infringements, including seriousness levels for the infringements and the applicable penalties, which can be as high as €1 million or even reach six to eight times the offender’s unlawful profit.
• The regulation on the information requirements in distance, off-premises and online marketplace contracts with consumers is supplemented and extended. For online marketplace contracts there is a new regulation.
• The regulation on how to calculate time periods for exercising the consumers’ right of withdrawal in certain business-to-consumer contracts is modified.
• A set of new unfair practices, and particularly business-to-consumer commercial practices are regulated and precluded, specifically new forms of aggressive or misleading marketing or selling practices.
• The regulation on price reductions in retail trade is also modified.

With some relevant exceptions, most of the intellectual property reforms entered into force on November 4, 2021, the day after RD-L 24/2021 was published. The majority of modifications to the Consumer Protection Act, the Unfair Competition Act and the Act on Retail Trade will enter into force after May 28, 2022.

Due to the importance and diversity of the modifications implemented by RD-L 24/2021 in previous regulations, in the next blog entries, we will examine the legislative modifications stemming from this reform separately, from the perspective of each individual legal matter covered by it.