AC/E DIGITAL CULTURE

ANNUAL REPORT
2019
Developing a digital strategy is a key factor in The reality and context of the digital network
managing twenty-first-century institutions and have brought about major changes in the con-
this year’s AC/E Digital Culture Annual Report, cept of legal protection of works and authors’
the sixth, is an essential working instrument for rights. Current challenges include the need to
strengthening the interaction between Acción balance the interests of creators and users and,
Cultural Española (AC/E) and culture sector at the same time, expand the sources of creativ-
professionals. The performing arts, museums, ity, originality, public domain and compliance
festivals, historical heritage and the book sector with fundamental rights, in accordance with the
are some of the themes we have analysed in WIPO Development Agenda and the Human
depth in past editions. Rights Council of the United Nations.

The Internet is currently the largest platform for This year’s Focus seeks to analyse how distinc-
spreading art and culture, and this trend is un- tive national and regional systems reconcile
stoppable as it goes hand in hand with the pace new objectives in terms of access to works and
of life and the development of the digital society. cultural property with regulatory frameworks for
The emergence of the Internet and the new ICTs creative platforms and for the exchange of visual
has revolutionised the mechanisms for producing art and audiovisual, musical and literary works
and disseminating cultural property, disrupting on the basis of collaboration, innovation and
the traditional standards of authorship. openness. And it does so by taking into account
the many viewpoints on such a complex issue.
The Internet has democratised culture by mak-
ing it accessible to people in all sectors and from Once again, we are relying on the involvement
all walks of life, whereas until only a few years and support of Espacio Fundación Telefónica and
ago works of art were available to much smaller their excellent team to present this new edition
audiences. However, this situation, which might of the Annual Report at an event where experts
seem advantageous at first sight, also entails reflect, and provide practical guidelines, on the
risks, especially for authors and creators, artists, new technologies that affect creators and their
intellectuals, scientists and inventors, who now rights.
have to protect the authorship of their works
and prevent piracy or the plagiarism of what it Ibán García del Blanco
took them so much time and effort to create. Executive President
Although literary plagiarism has always existed, Acción Cultural Española (AC/E)
we have recently witnessed truly striking cases
that have sparked a great deal of controversy.
Digital Trends in Culture

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 3

 CONTENTS
DIGITAL TRENDS IN CULTURE

Decentralisation and Scarcity - Blockchain

and the Cultural Industries
Sebastian Posth7

Open access and intellectual property rights

Ignasi Labastida20

Towards economic sovereignty in culture: cultural-economic

innovations linked to the adoption of new technologies1
Mayo Fuster Morell (Dimmons)30

Cultural and intellectual creation and the digital

environment: the impact on human rights
Diego Naranjo49

Consumer trends in information and the media in the

culture industry: fake news and the audience
Javier Lorenzo Rodríguez63

Artificial intelligence in the music industry

Daniela Bosé80

The podcast in the cultural sector

Isaac Baltanás92
Digital Trends in Culture

4 CONTENTS
FOCUS 2019: CREATORS AND AUTHORSHIP
IN THE DIGITAL AGE

Introduction

1. Copyright use and respect for authorship: plagiarism

and appropriate use of the quotation limit
Rosa de Couto Gálvez109

2. Preventive and probative measures for the legal protection

of intellectual property works: Intellectual Property Registry,
copyright symbols ©, ISBN, ISSN and legal deposit
Rosa de Couto Gálvez118

3. Judicial measures vis-à-vis infringements

of intellectual property rights
Isabel Fernández-Gil Viega128

4. Intellectual property and compliance. Good use of

technological resources and accountability
Vicente Navarro139

5. Good practice and procedures for protecting the

intellectual property rights to content in the digital age
José Manuel Tourné154

6. Blockchain and smart contracts. Legal implications

in the intellectual property field
José María Anguiano170
Digital Trends in Culture

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 5

 DIGITAL TRENDS IN
CULTURE
Digital Trends in Culture

6 
DECENTRALISATION AND
SCARCITY - BLOCKCHAIN
AND THE CULTURAL
INDUSTRIES

Sebastian Posth · @posth

Sebastian Posth is an entrepreneur and consultant in the publishing industry with a focus
on digital innovation, data analytics, market research and blockchain technology.
Digital Trends in Culture

In 2007, Sebastian founded the first e-book distributor and conversion service on the German
market. He also worked for Arvato (Bertelsmann) as Director Digital Content Distribution. Since
2013, Sebastian is founder and CEO of ‘Publishing Data Networks’, based in Frankfurt am Main.
The company is offering sales and marketing data analytics and market research for e-books and
audiobooks on the German market. As a consultant, Sebastian is offering project management
and product development in the fields of digital innovation and blockchain technology.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 7

 ‘It is the stillest words that bring the storm. distributed and decentralised computer nodes
Thoughts that come on pigeons’ feet steer the that ‘timestamps transactions by hashing them
world’. into an ongoing chain of hash-based proof-of-
(Friedrich Nietzsche, Also sprach Zarathustra) work, forming a record that cannot be changed
without redoing the proof-of-work.’2 In other
In 2008, Satoshi Nakamoto published a paper words, in its most basic function, the blockchain
called ‘Bitcoin: A Peer-to-Peer Electronic Cash can be defined as a distributed and decentralised
System’.1 In the initial sentence of this relatively network of nodes. This network maintains a led-
short paper Nakamoto comes to the point ger of all online transactions of value exchange.
without further ado: ‘A purely peer-to-peer All transactions are written in blocks of data that
version of electronic cash would allow online are added to the chain. By permanently linking
payments to be sent directly from one party the blocks and distributing the chain of blocks to
to another without going through a financial a large number of independent nodes, a block-
institution’. No matter how prosaic these words chain network creates an immutable record of
may read, the underlying idea has caused a shift transactions of the past.
of paradigm in banking as we know it. Bitcoin
enables two individuals who do not know each With the concept of ‘proof-of-work’, Nakamoto
other to exchange money online, directly and introduced a fundamental principle of security
immediately; a financial transaction which does and trust on the blockchain: effort and reward.
not involve any intermediary trusted third party The process of creating a new block and adding
to be valid and binding. it to the chain is called mining or validating.
Because this process is purposefully time and
Over the centuries, our societies have established energy consuming, it ensures that the network
a relatively stable system of powerful financial converges on a consistent global view of its
institutions that provide security for the financial history, and that no value, e.g. money, would be
and economic sectors and their participants. transferred twice (double spending). It is neces-
By offering deposits and loans, defining interest sary to mention that there are many different
rates, maintaining access to cash and liquidity, concepts of mining or algorithms to reach a
controlling the streams of payments or issuing consensus on the legitimacy of a block. With
money and governing the value and validation of proof-of-work mining, computers in the network
the currencies private and central banks were the are competing with each other by investing
monetary authority. This system has successfully computational power in order to solve a cryp-
been in place despite well-known downsides of tographic puzzle. The larger the network and the
‘fiat currencies’ – in particular the slowness and number of independent miners or validators, the
high costs of financial transactions, depending more secure a blockchain will be. The ledger can-
as they did on the ability of payment providers, not be altered or forked, unless you spend more
banks and a whole network of financial interme- energy than 50% of the whole network. In open
diaries to communicate and settle transactions and public blockchains the validation of transac-
and exchange its current and valid ledgers. Digital tions and the creation of blocks is always incen-
financial transactions via software applications, tivised and compensated by receiving a reward
online services or debit card payments did not or a transaction fee. This monetary incentive
Digital Trends in Culture

structurally change and improve this situation. and the creation of coins, tokens or assets make
Bitcoin, however, provided ‘real digital money’ for the aspect of cryptocurrency an essential part of
the first time in history. the security model of the blockchain technology
itself.
With cryptocurrencies, rather than a network
of centralised institutions, it would be one of

8 DECENTRALISATION AND SCARCITY - BLOCKCHAIN AND THE CULTURAL INDUSTRIES · SEBASTIAN POSTH
Decentralisation their commercial activities, but also for legal
reasons. With offering and running applications,
Bitcoin and other cryptocurrencies have initiated connecting people or maintaining financial or
an ongoing process of innovation and disruption other business transactions, come legal respon-
of the financial industries. And – in the context sibilities and obligations. Most businesses need
of this paper – it is interesting to see how to know their customers and have the power
the underlying structural change will have an to exclude individuals from their services or
effect on other areas or industries as well. To refuse to offer to them in the first place. Users,
fully understand the fundamental and possibly on the other hand, trust known and established
game-changing implications of blockchain brands with their money, data and privacy. In
technology, it is helpful to have a look at how many cases they appreciate their services. In
exactly blockchain makes a difference, and how other cases they depend on them, such as when
it differentiates from the internet as we know it. getting access to a bank account.

It is often said that blockchain can be considered Considering the upsides and downsides of
as a new ‘layer of trust’, that is being added centralised services on the internet, their respon-
‘on top’ of the internet. This is true in many sibilities and power reveal a rather delicate and
ways. Just as the internet allows for direct and fragile infrastructure. It is no coincidence that
immediate exchange of information and data, blockchain and distributed ledger technologies
the blockchain allows for direct and immediate have appeared on the business landscape at a
exchange of value without a centralised and time when the flaws of the current centralised
trusted third party or intermediaries. The term set-up are outnumbering its benefits. Evidence
‘value’ can be understood in the broadest sense: for this can be found by looking at the banking
money, property, licences, engagement, repu- sector, e-commerce or social media platforms:
tation, time, labour, etc. Whereas the internet trust is a value that does not stick, but has to be
needed centralised and trusted institutions in earned and sustained in an iterating manner. And
order to ensure the integrity and legitimacy this is where blockchain comes into play.
of transactions and the transfer of value, the
blockchain networks will take over this role from Blockchain has the potential to disrupt the
now on. power of centralised institutions, companies and
platforms at the same time. As decentralised
In a period of over 15 years, trade has gone commerce emerges, new platforms will arise that
online and social interactions in the broadest will work entirely different in a number of ways.
sense have moved into the cloud. Most compa- Instead of handling and facilitating transactions
nies offer services or access to goods through through their centralised accounts, they will
applications on the internet. But the business support peer-to-peer transactions with various
logic of centralised services on the internet and cryptocurrencies or tokens on different block-
of supply and demand of e-commerce has led chains. Instead of relying on the authority and
to an accumulation of power and control by a reputation of known and trusted enterprises and
limited number of companies. They accepted their brands, transactions will be based on ‘trust­
and handled payments and debit management, less trust’, which is established on the block-
Digital Trends in Culture

maintained platform governance or provided chain. No third parties will be needed to oversee
access to services, content and goods or organ- trade any longer, no banks will be needed for
ised logistics and fulfilment. clearing financial transactions or the transfer of
value. International sales will be possible without
It seems all too obvious and legitimate that national currency conversions. Transactions will
businesses need control; not only to perform be borderless, permission-less and censorship

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 9

 resistant. And not the least, instead of relying current and future supply is known beforehand.
on centralised services to guarantee access to All monetary assets of open and public block-
content, information or data, users will eventu- chains, just like Bitcoin, have a finite and con-
ally be in charge of their accounts and become trolled supply and a mathematically defined
true owners of their assets. issuance schedule. Not more than 21 million
Bitcoin will be created, and their issuance is
determined for more than a hundred years in
Scarcity advance. Approximately in 2140, all 2,099,999
Bitcoin will have been mined.3
The decentralisation of applications and services
is one of the driving concepts of the markets
and commercial environments that will be
established with the emergence of blockchain
technology. But there is a second crucial shift
that has been caused by blockchain technology:
by presenting an entirely new way of dealing
with algorithmic validation of peer-to-peer
transactions, Bitcoin introduced the concepts of
scarcity and value to the digital world!

To give an example: Unlike an e-mail or a file,

which will remain as a copy with the sender
Supply of bitcoin currency over time based on
once it is sent to a third party, an individual a geometrically decreasing issuance rate.4
Bitcoin that is spent will no longer be available
to the individual who spent it. Just like a metal
coin, a digital asset can be owned and spent on In 2015 the Ethereum blockchain was launched.
the blockchain. In the physical world, an item
is defined by its integrity; its value by supply The Ethereum blockchain not only provided the in-
and demand. This economic principle basically frastructure for transacting primitive digital tokens
applies to physical as well as to digital goods. (ether in this case) but also provided the capability
However, the internet and its abundance of for easily creating and autonomously managing
data, information and other content has created other secondary digital tokens of value over the
a problem of value and validation. Where every- open public Internet without trusted interme-
thing can effortlessly be reproduced, value is at diaries. Using this concept of smart contracts,
stake. For what it was worth, large companies which are effectively applications running atop a
running centralised platforms have tried to ad- decentralzed network, tokens can be created and
dress this issue by curating, filtering, bundling or allocated to users, and made to be easily tradable.
selecting content, and, by doing so, controlling This process of creating tokens and distributing
supply and demand of a market they were in them to users in return for a network’s primitive
charge of. With blockchain and cryptocurrencies digital token (cryptocurrency) is called an ICO
their function will change significantly as scarcity process, and can be seen as a novel distribution
Digital Trends in Culture

will become a feature of the algorithm. channel for assets.5

It is the inherent logic of ‘programmable money’, In other words, smart contracts on the Ethereum
that the number of coins, tokens or assets are blockchain are neither smart, nor are they
limited or defined by design. This is where contracts in the common understanding of the
cryptocurrencies derive their value from; their legal term ‘contract’. Instead, smart contracts

10 DECENTRALISATION AND SCARCITY - BLOCKCHAIN AND THE CULTURAL INDUSTRIES · SEBASTIAN POSTH
are deterministic computer programmes that may represent a different value each. In this way,
execute codes according to pre-defined rules, they are not fungible, but simplify transactions,
and that enforce the performance of a defined like the transfer of ownership. Applications that
transaction. Moreover, smart contracts allow use ERC721 tokens will simply attest ownership
basically anyone to create their individual token of specific physical or digital assets by assigning
system for the transfer of value on the blockchain them to the pseudonymous account numbers
or within their decentralised application.6 This of their owners. Apart from the fact that the
way Ethereum has not only drastically simplified ERC721 standard provides a deterministic and
the access to funding capital by allowing compa- computational way of processing transactions,
nies to offer their issued tokens for sale, but also by doing so ‘non-fungible tokens create digital
created new opportunities for innovative business scarcity that can be verified without the need for
models. Transactions triggered by decentralised a centralizing organization to confirm authen-
applications are settled on the native Ethereum ticity. [...] Blockchain technology is significant
blockchain, making use of the underlying security because it enables a decentralized way to main-
of the network and its existing infrastructure such tain distinct, digitally scarce items.’10
as the global network, the broad distribution, the
mining infrastructure and its financial incentives.7
Tokenisation
This model for creating tokens has been proven
to be comparably stable and reliable. Issuance, ERC20 and ERC721 are examples of technical
allocation and transferability are being pro- implementation standards that have been
grammed into an immutable smart contract. On established on the Ethereum blockchain. But
Ethereum, several standards have been estab- tokenisation itself is not limited to the Ethereum
lished to create individual token systems to store network. It is a feature of other blockchains as
or represent value. Here, I would like to mention well, that they support the issuance of individual
two of the standards that allow to create token- new tokens. Nonetheless, Ethereum has become
ised, decentralised services and applications and the most popular platform for start-ups and
have been broadly adopted by the community: developers and needs to be given the credit of
the ERC20 and the ERC721 standard. enabling the rise of new platforms and market-
places.
The ERC20 standard8 supports the creation of
fungible tokens on the Ethereum blockchain. The tokenisation of assets through fungible
This means that the tokens can be issued in and non-fungible tokens can be considered as
a defined, thus limited number by a smart the stimulus for an entire new economic model
contract. These tokens are identical and in- based on blockchain technology and cryptocur-
terchangeable, and they can be used as a unit rencies. Its popularity among the crypto-com-
of account, as a store of value or means of munity is certainly based on the fact that it has
exchange of value of the exact same amount. become comparably easy to create individual
token environments that allow the transfer
The ERC721 standard,9 on the other hand, of value on distributed and decentralised net-
supports the creation of non-fungible tokens works. In fact, it has become so convenient and
Digital Trends in Culture

(NFT) on the Ethereum blockchain. These tokens ubiquitous that many experts in the field are
are limited in number, as well. But unlike ECR20 predicting a ‘tokenisation of everything’.11 The
tokens, the ERC721 tokens are unique, distin- idea implies that every form of asset, digital or
guishable and serialised. They can only be traded physical items or good, property or other storage
as an entire unit and not be split in value. ERC721 of value could eventually be represented by a
are not interchangeable per se, as two tokens token. This is certainly possible from a technical

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 11

 point of view. Tokenisation makes it possible topepes.io), CryptoFlowers (cryptoflowers.io),
to structurally convert digital items or physical Cryptocrystal (cryptocrystal.io) and many more
goods into digital assets that function just like variants of the same model. On CryptoCountries
financial assets of a cryptocurrency: they can be (cryptocountries.io) users can buy and collect
generated, offered and traded on decentralised tokenised images of countries, whereas on
marketplaces. The token itself is the representa- Cryptovoxels (cryptovoxels.com) and Decen-
tion of an item or good, which the token makes traland (decentraland.org) – the latter trending
exchangeable or tradeable on the blockchain. among the top-3 NFT smart contracts14 – users
And just like with crypto assets, the value repre- can buy, own and sell ‘land’, representing estate
sented by an individual token will be determined and parcels on a virtual reality platform.
by the market. This logic of tokenisation can be
applied to property rights of tangible, real-world
items: a house or a car could be tokenised just
like a bottle of wine, which could have been
represented by a token long before the harvest
has actually been collected and the wine has
been bottled. But also rights to intangible goods
will – in the long run – most likely be tokenised,
such as intellectual property rights, patents or
licences to use digital content, digital art, gaming
items, or any other digital cultural asset.

Memes and Trends

Cryptokitty 919534, owned by the author,
The trend towards tokenisation was initiated
https://www.cryptokitties.co/kitty/919534
by a trading platform, serving a ‘very special
interest’ of the internet generation: cat pictures.
They initiated a shift in paradigm for digital The mentioned platforms implement and
collectibles in particular and e-commerce in transform the principles of blockchain tech-
general. nology – decentralisation and scarcity – into a
new business model on top of the internet that
Built on top of the Ethereum blockchain, the first differs substantially from the platforms we know
real iteration of a non-fungible standard came so far. ‘Decentralised’ in the context of the new
about with ERC721. It was popularised in late model means that, in principle, it is possible to
2017 with the rapid adoption of CryptoKitties buy a digital asset independent of the platform
[cryptokitties.co], a game which allowed for the that has initially created or promoted the items.
purchase, and subsequent ‘breeding’ of digital cats. To give an example: users are able to purchase
These cats were bought and sold as a virtual token, CryptoKitties on the cryptokitties.io website, but
and some have fetched prices over $200,000! At the same items are also being offered on a plat-
its peak, CryptoKitties was responsible for more form like Opensea.io. Opensea is the self-pro-
Digital Trends in Culture

than 10% of total transactions on the Ethereum claimed ‘world’s largest digital marketplace for
network.12 crypto collectibles’, where you can ‘buy, sell, and
discover exclusive digital assets’ according to the
About 800 non-fungible tokens have been rules of the smart contract and the terms of the
created since then.13 CryptoKitties set the stan- respective platform that issued the tokens that
dard for other platforms like CryptoPepes (cryp- represent the collectables.

12 DECENTRALISATION AND SCARCITY - BLOCKCHAIN AND THE CULTURAL INDUSTRIES · SEBASTIAN POSTH
From cats to digital artwork it is just a small step.
Twentieth-century pop culture has blurred the
boundaries between what has been considered
as trash and prestigious art. So it is not surprising
that the art world has embraced blockchain
quite a bit. Crypto art15 can be found on plat-
forms like SuperRare (superrare.co), Cryptopunks
(larvalabs.com/cryptopunks) or ‘Creeps & Weir-
dos’ (dada.nyc/artgallery), a digital gallery for
rare digital drawings. Projects like Portion (por-
tion.io), Maecenas (maecenas.co) or KnownOri-
gin (knownorigin.io) aim to function as a
‘decentralised exchange’, ‘decentralised gallery’
or ‘decentralised marketplace’ for art and collect-
ables. This means that art can be traded in a
manner that is transparent, censorship resistant
and independent of any specific platform.16
Furthermore, blockchain is being used to deter-
mine the provenance and authenticity of an
artwork. Timestamping as a proof of existence, Homer Pepe, http://rarepepedirectory.com/?p=392
integrity or authenticity can be implemented in
various manners: e.g. the Blockchain Art Collec- swan’19 to the lowest bidder, in order to demon-
tive (blockchainartcollective.com) offers RFID strate the potential of micropayments for the art
chips that can physically be attached to the world. Eventually, the picture was sold for 1
artworks. The embedded code will allow artists millisatoshi, which was at this time equal to
and owners to create digital records on the $0.000000037.20
blockchain that prove authenticity and prove-
nance of a work in the digital record in addition The platform Gods Unchained (godsunchained.
to the paper certificates. And the Codex Proto- com) provides an almost identical reproduction
col (codexprotocol.com) aims to become the
leading decentralised title registry of unique art
items by writing records of attestations and
claims of ownership on the blockchain.

Crypto art has already even become a meme on

the internet, and the phenomenon of ‘Rare
Pepes’ is just one example for this trend: Rare
Pepes are unique illustrations, patchwork and
Photoshop compositions featuring ‘Pepe the
Frog’. Over the last years they have become
collectables as if they were trading cards.17 Early
Digital Trends in Culture

in 2018, an individual card (HOMERPEPE) sold

for approximately $38,500 at a Rare Pepe auction
in New York.18 But crypto auctions might as well
work a little differently than expected. In De- Black swan, 2018, fiat and counterfeit detector pen ink,
1.44 in x 1,75 in (3.55 cm x 4.44.cm), by @cryptografitti,
cember 2018, crypto artist @cryptograffiti https://www.reddit.com/r/Bitcoin/comments/
auctioned one of his artworks called ‘black a82fz0/i_sold_this_tiny_artwork_for_1_millisatoshi/

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 13

 of the experience of collecting trading cards they are – in fact – the property of the game, not
online. It offers rare digital assets, serialised and the owner. But terms will change, and platforms
limited in number. Just like Gods Unchained, like Gamertoken (https://gamertoken.io) have
Decentraland or Darkwinds (playdarkwinds.com), already created a prototype of a decentralised
many other platforms combine the experience marketplace for gaming items on the blockchain.
of collecting items with elements of gaming. Tokenised assets could be transferable from
Although the gaming industry has not yet fully game to game on marketplaces not owned by
embraced blockchain and cryptocurrencies, it is individual game studios. And users might also
fair to assume that this will only be a matter of appreciate the opportunity to use virtual assets
time. As a matter of fact, it has already become to buy things in real-life, like a coffee or a book,
an integral part of online gaming that users can or just offer digital game assets or items for sale
collect, buy or receive game items, assets or in exchange for fiat currencies.
other content as a reward for their engagement.
But in most cases, the games’ collectables can
only be used within the scope of the individual Smart Licensing
game itself. They cannot be transferred to a dif-
ferent game, let alone be used in a game offered A lot has been said about the way digital money
by a competing company. It is in the commercial will be owned and spent in the age of block-
interests of software and gaming companies to chain. In fact, it seems as if cryptocurrencies
enforce centralisation and closure, which ensures mimic the experience of dealing with physical
that the users’ money, effort or time will remain money, such as banknotes and coins, even more
stuck in one singular gaming environment. The closely than expected. Interestingly enough,
terms and conditions of Epic Games (the studio through tokenisation of assets the concept of
behind the biggest online game of all times up to ownership and property seems to be enjoying
this day) may serve as an example to prove the a revival in the digital realm. Just like digital
point that most traditional enterprises have not money, physical goods or digital items can be
yet understood, internalised or included the op- represented as tokens on the blockchain. And
portunities of blockchain and cryptocurrencies. the same logic of tokenisation can be applied to
For Fortnite content or currency the company intellectual property and digital media content.
clarifies:
But wasn’t media consumption all about licens-
Neither Game Currency nor Content are redeem- ing, rights, access and use instead of ownership
able for money or monetary value from Epic or and possession? In the age of the internet and its
any other person, except as otherwise required centralised online-media platforms, the concept
by applicable law. Game Currency and Content of ownership has become all too vague. Do
do not have an equivalent value in real currency readers ‘own’ a digital copy of an e-book they
and do not act as a substitute for real currency. purchased on Amazon? Or do they own a licence
Neither Epic nor any other person or entity has any that permits them to use the subject of a licence
obligation to exchange Game Currency or Content in a certain way, that is – in this example – de-
for anything of value, including, but not limited to, fined by Amazon as the operator of the platform
real currency.21 and licensor of the content?
Digital Trends in Culture

Fortnite gamers cannot monetise their skins, If licences were tokens, they would behave more
axes or gliders. These are not redeemable for like property, without losing the benefits of li-
money, even if they had a value that could be cences for creators and rights owners. The Content
represented in ’real currency’. They cannot be ex- Blockchain Project (content-blockchain.org) – of
changed across different games or platforms, as which the author is a co-initiator – developed a

14 DECENTRALISATION AND SCARCITY - BLOCKCHAIN AND THE CULTURAL INDUSTRIES · SEBASTIAN POSTH
prototype for what the project has called ‘smart industry. Bernstein (bernstein.io) are aiming at
licensing’. The project was initiated in 2016 by a corporate IP, like inventions or designs, that can
consortium of publishing, law and IT companies, be registered to obtain blockchain certificates
to research the possibilities of using blockchain that prove ownership, existence and integrity of
technologies in advancing the content and any IP asset.
media ecosystem. It aims to create technical
foundations for a trading environment dedicated
to digital media content that facilitates new and Self-Sovereign Identity
innovative ways to offer and purchase content
on a decentralised blockchain network. One of Tokenisation has created an entire new way of
the project’s goals has been to simplify the com- thinking about cultural assets, value, ownership
plex process of licence management and distri- and transactions on decentralised marketplaces
bution of digital content by offering a registry of online. Interestingly, on these marketplaces users
rights and licences on an open and transparent do not only own their digital assets – they also
blockchain ledger. On the Content Blockchain own their personal accounts and data. In the age
network it will be possible to create and distrib- of the internet, users were required to register
ute machine as well as human-readable licence and log into an individual platform in order to
offerings, called smart licences.22 These smart use its service. While using a number of services,
licences could be represented by licence tokens, users provided personal information, ratings,
which would include a specific set of rights to reviews, posts, and other data to many individual
use the content in a specific ways. This model companies. This resulted in a growing power of
would allow rights owners to offer licenses to these services and platforms, where access to
retailers (B2B) or users (B2C) alike via tokens on customer data supported market significance in
decentralised marketplaces on the blockchain. a reinforcing circle. Despite all efforts to protect
the customers’ privacy and data through political
The benefits of such a container-model will regulation, in many cases companies have not
become more obvious if we look at B2B sales. been fully transparent about what they actually
In order to sell digital content through relevant do with the user data they aggregate.
retailers and shops, rights owners need to
negotiate licence agreements per individual On decentralised marketplaces users do not
platform. These negotiations can be time-con- necessarily have to register and log into the indi-
suming and complicated for both rights owners vidual platform in order to use a specific service
and retailers. Tokenisation would, by contrast, or to buy or trade items or assets. Users can
allow licensors to publicly offer content licences interact directly with the blockchain or use their
in a simple way. Converting licence offerings into blockchain accounts and public keys to access
token offerings would enable shops, retailers and services on specific platforms. This way, users
even customers to easily sell or resell the tokens can provide as much information to a third party
independent of the dominant market players on as preferred, necessary or requested. To give an
any possible platform – as they would not sell example: a service needs to ensure that a user
the licence, but only the token with the licence is old enough to perform a legal transaction, yet
included. This model has the potential to sim- the user does not need to reveal his/her date of
Digital Trends in Culture

plify any kind of licence trade a great deal. Other birth in order to provide valid and verified infor-
projects and startups focus on a similar model of mation. A lot of research is currently being done
tokenising media content licences on the block- on ‘self-sovereign identity’ (SSI).23 Projects like
chain, like the Crea Project (creaproject.io) and the Sovrin (sovrin.org), Jolocom (jolocom.io), uP-
JAAK (jaak.io), who are working on services for ort (uPort.me), Blockstack (Blockstack.org) and
record labels and other companies in the music others are working on creating standards, provid-

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 15

 ing foundational technology, tools and models of the e-commerce paradigm within a quarter of
around SSI. It will certainly take some time for a century. Blockchain and cryptocurrencies have
people and businesses to get acquainted with not only introduced peer-to-peer transactions to
handling their self-sovereign identities. But with the world of banking: financial institutions and
a growing number of innovative software and insurance companies already feel the pressure
hardware products and wallets, the management on their traditional business models. It is almost
of self-sovereign blockchain accounts will get certain that blockchain and cryptocurrencies will
more secure and easier to handle. have a major impact on literally every industry
and sector. The logistics and transportation
sector is actively investigating this technology
D’Apps24 and Marketplaces and building pilot applications on the blockchain.
Legal and governmental services are being
Both trends, tokenisation and self-sovereign discussed and promoted by governments and
identity, will support the emergence of institutions around the globe. And we have
decentralised marketplaces like OpenBazaar seen a number of examples of blockchain and
(openbazaar.org) or the ones we have seen for cryptocurrencies changing the economics of the
the cultural sector. They have the potential to cultural sectors. What we can observe in visual
disrupt the power and influence of the current arts and gaming is certainly a trend towards
centralised market behemoths. Decentralised blockchain and tokenisation. This trend will also
applications on open blockchain networks allow shape the content industries, like news pub-
creatives and users to interact directly and se- lishing, trade or academic publishing, the music
curely through accounts they fully control on the business, and also the stock photo markets or
platforms they choose. Despite these structural ticketing services for performing arts or concerts.
changes of e-commerce in the age of blockchain, A lot of projects in the cultural sector have been
intermediaries, shops and online platforms will set up to experiment with models based on the
not entirely disappear. But their role will be sig- fundamental principles of blockchain and crypto-
nificantly different: customers will be in control currencies: decentralisation and scarcity.
of their accounts and assets, and sales, payments
and fulfilment will no longer be handled through Whether most of the mentioned projects will
centralised services. Instead, the new market- still exist in the year 2020 remains to be seen.
places will support a broad discoverability of the The field of blockchain and cryptocurrencies
assets by curating, bundling, filtering, selecting is constantly evolving at a fast pace. New and
and presenting goods and items. They will allow innovative projects are being launched almost
global, borderless, trustless and censorship every day. On the other hand, we are in the early
resistant transactions; organise a convenient days of distributed ledger technologies, where
customer experience; support content marketing expectations are high but use and actual utility is
and introduce new and innovative services and low. Mass adoption of this new technology and
ways for the creative community to offer and its applications is still a distant goal. The number
users to access the content. of active users of the most popular applications
on the various networks is comparably low.25
The economy of centralised platforms and However, we might currently be witnessing
Digital Trends in Culture

marketplaces supported a fundamental shift in pigeons’ footprints which will steer the thoughts
the economy of cultural production and distri- and the behaviour of the generations to come; in
bution on the internet. By adding a layer of trust Nakamotos’s paper we might have read the quiet
on top of the internet, blockchain technology words that will bring the storm.
certainly has the potential to replace the ‘old
economy’ and cause a second fundamental shift

16 DECENTRALISATION AND SCARCITY - BLOCKCHAIN AND THE CULTURAL INDUSTRIES · SEBASTIAN POSTH
Resources Gods Unchained (godsunchained.com)

Jaak (jaak.io)
List of Mentioned Platforms
Jolocom (jolocom.io)
The following list is a list of projects mentioned in
the paper. They are presented in alphabetical order. KnownOrigin (knownorigin.io)
The references are for informational purposes only.
They must not be understood as a recommenda- Maecenas (maecenas.co)
tion or financial advice to invest, participate or
otherwise engage in the mentioned projects. OpenBazaar (openbazaar.org)

Bernstein (bernstein.io) Opensea Opensea.io

Blockchain Art Collective (blockchainartcollec- Portion (portion.io)

tive.com)
Sovrin (sovrin.org)
Blockstack (Blockstack.org)
SuperRare (superrare.co)
Codex Protocol (codexprotocol.com)
uPort (uPort.me)
Content Blockchain Project (content-blockchain.org)

Crea Project (creaproject.io) Resources

Creeps & Weirdos (dada.nyc/artgallery) List of projects, papers, videos, initiatives and
other resources, dealing with self-sovereign
CryptoCountries (cryptocountries.io) identity:

Cryptocrystal (cryptocrystal.io) https://github.com/peacekeeper/block-

chain-identity
CryptoFlowers (cryptoflowers.io)
https://github.com/infominer33/awesome-de-
CryptoKitties (cryptokitties.co) centralized-id

CryptoPepes (cryptopepes.io) https://www.stateofthedapps.com/rankings

Cryptopunks (larvalabs.com/cryptopunks)
Literature
Cryptovoxels (cryptovoxels.com)
Andreas M. Antonopoulos, Mastering Ethereum,
Digital Trends in Culture

Darkwinds (playdarkwinds.com) https://github.com/ethereumbook/ethereum-

book
Decentraland (decentraland.org)
Andreas M. Antonopoulos, Mastering Bitcoin,
Gamertoken (https://gamertoken.io) https://www.oreilly.com/library/view/master-
ing-bitcoin/9781491902639/

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 17

 7 In ICOs (initial coin offerings), tokens are sold in ex-
Jason Bailey, What is CryptoArt?, https://www.
change for established cryptocurrencies, fiat money
artnome.com/news/2018/1/14/what-is-cryptoart
or given away in other ways. It is worth noting that
tokens created on the Ethereum blockchain are
Phil Glazer, An Overview of Non-fungible
issued by one smart contract, which is controlled
Tokens, https://hackernoon.com/an-overview-
and established by one address (in most cases
of-non-fungible-tokens-5f140c32a70a
belonging to one person, group or organisation)
literally ‘printing money’ of uncertain value when
Satoshi Nakamoto, Bitcoin: A Peer-to-Peer
issuing the tokens. In contrast to the native ETH
Electronic Cash System, 2008, https://bitcoin.
currency, these tokens cannot be mined and also
org/bitcoin.pdf
do not contribute to the security of the underlying
blockchain itself. Despite the fact that some tokens
Sebastian Posth: What is a Smart License,
are being introduced as utility tokens, providing
https://medium.com/@posth/what-is-a-smart-
users with future access to a product, service or
license-e71fe3dd2433
good, the fact that they are issued by defined
(although not necessarily known) organisations, can
Avtar​ ​Sehra, ​Philip​ ​Smith, ​Phil​ ​Gomes, Eco-
lead them to be considered as securities, nonethe-
nomics of Initial Coin Offerings, http://www.
less. Financial authorities and regulators around the
allenovery.com/SiteCollectionDocuments/
globe are having a close look at the various ICOs
ICO-Article-Nivaura-20170822-0951%20%20-%20
that are being performed, coming up with different
Final%20Draft.pdf
regulatory and legal approaches. At this moment,
the field is a grey area for businesses, launching an
Rhys Skellern, What’s the Deal with NFT Stan-
App via ICO, and a highly speculative field for users
dards? https://medium.com/ecomi/whats-the-
who are buying into these coins and tokens for
deal-with-nft-standards-1383148c48f3
other reasons than for their proposed use cases.
8 ERC20 Token Standard: https://theethereum.
Notes wiki/w/index.php/ERC20_Token_Standard
9 EIP 721: ERC-721 Non-Fungible Token Standard,
1 Satoshi Nakamoto, Bitcoin: A Peer-to-Peer Elec- https://eips.ethereum.org/EIPS/eip-721
tronic Cash System, 2008, https://bitcoin.org/ 10 Phil Glazer, An Overview of Non-fungible Tokens,
bitcoin.pdf https://hackernoon.com/an-overview-of-non-fun-
2 Nakamoto, ibid. gible-tokens-5f140c32a70a
3 Andreas M. Antonopoulos, Mastering Bitcoin, 11 Among these experts, the founder and CEO of the
https://www.oreilly.com/library/view/master- crypto and blockchain technology company Circle
ing-bitcoin/9781491902639/ch08.html Jeremy Allaire, see: https://www.youtube.com/
4 Antonopoulos, ibid. watch?v=NHglROCWCgA&t
5 ​ vtar​ ​Sehra, ​Philip​ ​Smith, ​Phil​ ​Gomes, Economics
A
12 Rhys Skellern, What’s the Deal with NFT
of Initial Coin Offerings, http://www.allenovery. Standards? https://medium.com/ecomi/whats-
com/SiteCollectionDocuments/ICO-Arti- the-deal-with-nft-standards-1383148c48f3. The
cle-Nivaura-20170822-0951%20%20-%20Final%20 company claims that ‘CryptoKitties accounted for
Digital Trends in Culture

Draft.pdf 20–25% of Ethereum’s traffic’ and ‘over 3.2-million

transactions have occurred on CryptoKitties’ smart
6 Andreas M. Antonopoulos, Mastering Ethereum,
contracts’: https://medium.com/cryptokitties/
https://github.com/ethereumbook/ethereumbook/
herding-one-million-cats-7dbec6c77476.
blob/develop/07smart-contracts-solidity.asciidoc

18 DECENTRALISATION AND SCARCITY - BLOCKCHAIN AND THE CULTURAL INDUSTRIES · SEBASTIAN POSTH
13 See ERC-721 (NFT) Token Tracker, https://ether- 20 See: https://www.reddit.com/r/Bitcoin/com-
scan.io/tokens-nft ments/a82fz0/i_sold_this_tiny_artwork_for_1_mil-
14 Late December 2018, see, ibid. lisatoshi/ec7fw43/

15 Via Jason Bailey, What is CryptoArt?, https://www.

21 Fortnite End User License Agreement, https://
artnome.com/news/2018/1/14/what-is-cryptoart www.epicgames.com/fortnite/en-US/eu-
la?lang=en-US
16 See Andreas M. Antonopoulos on Auctioning
dApp’s:
22 See Sebastian Posth: What is a Smart License,
https://medium.com/@posth/what-is-a-smart-
https://github.com/ethereumbook/ethereumbook/
license-e71fe3dd2433
blob/develop/12dapps.asciidoc
23 List of projects dealing with self-sovereign
17 About the meme: https://knowyourmeme.com/
identity: https://github.com/peacekeeper/block-
memes/rare-pepe, see also: https://www.reddit.
chain-identity, List of papers, videos, initiatives and
com/r/pepe/
other resources: https://github.com/infominer33/
18 Jessica Klein, I Went to the First Live Auction awesome-decentralized-id
for Rare Pepes on the Blockchain: https:// 24 Decentralised Applications
motherboard.vice.com/en_us/article/ev57p4/i-
went-to-the-first-live-auction-for-rare-pepes-on-
25 See: https://www.stateofthedapps.com/rankings
the-blockchain
19 https://www.youtube.com/watch?v=SvQhTvGXl-
RU&feature=youtu.be

Digital Trends in Culture

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 19

 OPEN ACCESS AND
INTELLECTUAL PROPERTY
RIGHTS

Ignasi Labastida · @ignasi

Digital Trends in Culture

Ignasi Labastida, PhD in Physics. Currently Head of the Office for Knowledge Dissemination
and the Research Unit at the CRAI (Library) of the University of Barcelona. Public leader of
Creative Commons in Spain. He is a member of the Copyright and Open Access Working
Groups of LIBER and member of the Steering Committee of the CIO Community of LERU.
This text is subject to the Creative Commons attribution license available
at https://creativecommons.org/licenses/by/4.0/

20 OPEN ACCESS AND INTELLECTUAL PROPERTY RIGHTS · IGNASI LABASTIDA

In the digital world access to content is simpler those granted to performers, record producers
than ever and we seem to have everything and database creators, among others.
within our reach free of charge. However, intel-
lectual property rights have not disappeared and There are two kinds of authors’ rights: moral
are as valid as they were in the analogue world. rights and exploitation rights. The former are
In fact, efforts are being made to strengthen the personal and non-transferrable and linked to the
protection of these rights in an attempt to save author, whereas the latter can be transferred to
business models that are obsolete or have not other natural or legal persons temporarily, in part
adapted to the new media. or even fully, in which case the author ceases to
own the rights. Prominent among moral rights
But the purpose of intellectual property is not is the right to decide whether or not the work
just to ban and to create barriers. It can be used should be disseminated, or whether it should be
to offer content more extensively by inviting disseminated using the author’s name or pseud-
users to reuse and create from it under certain onym or anonymously. There are also moral
conditions. This new manner of exercising rights which never become extinct: the right to
intellectual property rights to share instead of be credited as the author of a work and the right
to prohibit also requires respect for creators. Of- to protect the integrity of the latter.
fering open content must not lead us to forget
to respect authors’ rights. This article examines Exploitation rights include the reproduction,
how to manage intellectual property to help distribution, communication to the public and
disseminate knowledge and culture openly, while transformation of the work, which must be
respecting authors and right holders. authorised by the author or right holder except
in a few cases established by current legislation
as limitations or exceptions to copyright protec-
1. The basics of tion. It should be pointed out that when a work
intellectual property is published on the Internet it is communicated
to the public, and when it is transformed a new
For the purposes of this article the concept of work, called a derivative, is created – for exam-
intellectual property will be taken to mean only ple, as in the case of translations.
copyright and related rights – in other words, the
definition used in Spanish law, which does not Limitations to copyright protection are designed
include what we understand by industrial prop- to establish a balance between copyright and
erty.1 It is important to point this out, because other rights such as the right to information
in many countries the definition of intellectual and freedom of expression. They include the
property also encompasses industrial property, possibility of making private copies that cannot
which protects trademarks, inventions and be distributed or communicated to the public
patents, as laid down by the World Intellectual without due authorisation, and the possibility
Property Organization (WIPO).2 of using excerpts from works as quotations or
for academic, teaching or research purposes.
Intellectual property is a temporary property It should be realised that these limitations are
which grants the authors of a work exclusive defined in great detail and any use that falls
Digital Trends in Culture

rights to decide how and when it can be used outside the authorised purposes requires express
and for what purpose, but also recognises the permission. There is still a belief that if there is
rights of natural and legal persons involved in no direct financial gain anything is allowed – for
its dissemination. The former are what is known example, in the academic field – and this can
as copyright – that is, authors’ rights – and the lead to surprises when people are reported for
latter are related rights. Related rights include copyright infringement.3

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 21

 As pointed out above, exploitation rights have a a work that will never enter the public domain
finite duration known as the term of protection. as the result of the government passing an
In the European Union this period lasts until extension on the law in 1988. The reason for this
1 January of the year following the seventieth perpetual protection is the that the royalties
year after the author’s death. When exploitation generated by the work go to a children’s hospi-
rights expire, the work enters the public domain. tal. The work in question is Peter Pan.5 Another
Related rights have a shorter duration. Perfor- case is France, which grants extra years of
mances and phonograms (sound recordings) are protection to people who died for their country
protected for seventy years from their creation or during the world wars.
or dissemination, while databases are protected
for fifteen years. These examples show how difficult it is to
ascertain when copyright protection of a work
ends, as it depends on the country and on the
1.1. Public domain author’s nationality.

The term public domain is widely used, though

not always in the sense it is accorded under 2. Open source licences
the Intellectual Property Law. According to this
law, a work enters the public domain when the All rights are reserved for the authors by default.
exploitation rights are extinguished or expire. Therefore, anyone wishing to use a work must
Although in theory the duration of these rights is request permission from the copyright holder
homogeneous in the European Union, there are unless the use comes under any of the limita-
many exceptions owing to legislative changes tions laid down in the applicable law. Since the
over the course of history. For example, in Spain 1980s practically all legal systems have abolished
the law of 1879 protected works during the the obligation to register works in order to enjoy
author’s lifetime and for eighty years afterwards. intellectual property rights. In Spain, this amend-
This period was reduced to sixty years in 1987 ment was made by means of law 22/1987 of 11
and increased to seventy in 1996, when it was November. As a result, authors no longer need
brought into line with European legislation. to submit any paperwork to obtain these rights;
However, the current law includes a transitional when they create a work they are automatically
provision establishing that authors who died entitled to the rights, which are recognised by
before 7 December 1987 will continue to enjoy the law. Prior to this law it was necessary to
protection for their works until eighty years register the authorship or ownership of a work
after their death. This provision means that the with the Intellectual Property Registry. These
works that enter the public domain each year are registers still exist, however, and works can be
those of authors who died eighty years ago; and entered in them. Although registration is no
this rule will continue to be in force until 2058. longer a requirement, it may be advisable to
It applies not only to Spanish authors but to register transfers of rights.
European authors too and even to those of other
countries with which reciprocal agreements have Not having to go through any procedure to
been signed, such as the United States. We thus obtain these rights means that a work without
Digital Trends in Culture

come across cases of authors who are already in any kind of legal notice has ‘all rights reserved’
the public domain in their country of origin, but by default. There is still a belief that when a
not in Spain.4 work is on the Internet and there is nothing
about intellectual property rights it can be used
These special situations are also found in other freely without having to request permission.
legal systems. For example, in Britain there is

22 OPEN ACCESS AND INTELLECTUAL PROPERTY RIGHTS · IGNASI LABASTIDA

Therefore, under the current laws, authors who the case of works of corporate authorship, to a
wish to exercise their rights openly – that is, hundred and twenty years after their creation.
who want to allow their works to be reused This extension, in line with the period of pro-
under certain conditions without having to grant tection established for works created in Europe,
permission – must clearly state this, usually in applied not only to newly created works but
a legal note or notice attached to the work or also to existing works. Until then the period of
by means of a so-called open source licence. protection had been until fifty years after the
These licences are legal texts which grant a few author’s death.
intellectual property rights under conditions
that must be respected. Rights are granted a A group of activists led by publisher Eric Eldred
priori and permission only needs to be sought if and aided by Lawrence Lessig, a professor
someone wishes to use the work for purposes of Constitutional Law, decided to take this
other than those which are allowed. extension to justice. The case reached the
Supreme Court, which dismissed the claim of
The origin of these licences can be traced back unconstitutionality.9 However, the petitioners
to the free software movement of the 1980s and decided to carry on campaigning and founded
the creation of GPLs (General Public Licences),6 an organisation with the aim of establishing an
which included the concept of copyleft. Copyleft infrastructure and instruments for facilitating
can be taken to mean exercising intellectual the exchange of content and fostering the public
property rights including the possibility of domain. Creative Commons thus started out
reusing a work with the stipulation that the in 2001 as a non-profit organisation that soon
same rights be preserved in any derivative work.7 became international in scope with a network of
The term copyleft is contrasted with the term affiliate institutions in all five continents. In Spain
copyright to draw a distinction between allow- the Universitat de Barcelona contacted Creative
ing copies and reserving this right. However, Commons in 2003 to request permission to
copyleft would not exist without copyright or adapt the licence used by the MIT (Massachu-
intellectual property rights, as without them setts Institute of Technology) to disseminate
there would not be any rights to grant a priori. It its educational content. This contact led not
is probably more appropriate to say that copyleft only to a couple of licences designed specifically
and open source licences are alternatives to the for the university but also to a project to adapt
‘all rights reserved’ system. the licences. The first result of the project was
the appearance of the first licences tailored to
The open source licences most commonly used Spanish intellectual property legislation on 1
in the digital sector today – though they are October 2004. The licences initially came out in
also employed for physical formats – are those Catalan and Spanish, followed later by versions
provided by Creative Commons.8 This non-profit in Basque, Galician, Asturian and even Aranese.10
organisation emerged in the United States at
the start of the twenty-first century in response Over the course of Creative Commons’ exis-
to the extension of the protection period in that tence, a number of legal instruments have been
country. established, some no longer in force, such as the
sampling licences11 created for the music sector.
Digital Trends in Culture

The best known of all these instruments and

2.1. Creative Commons the one which has had the most repercussions
is the set of standard licences that has become
In 1998 the United States Congress passed a the most widely used tool for open rights
law extending the period of protection of works management in the digital world. The licence
to seventy years after the author’s death or, in project was launched on 16 December 2002 and

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 23

 featured eleven different options, including texts duration as the period of protection applicable
that did not require attribution of authorship to the work or service and the user agrees to
of the works in question in order to be used. the conditions on exercising the rights that are
It should be stressed that in the United States granted. It is important to stress that in order to
moral rights are less commonly acknowledged associate a work or service with one of the six
than in Europe. This initial version of the licences licences it is necessary to be the author or holder
allowed authors to choose from three options: of the intellectual property rights and, especially,
whether they wished to be credited as such, the exploitation rights. It is wrong for someone
whether they wanted to allow their work to be to use the licences in works of which they own a
used for commercial purposes, and whether they copy but not these rights.
wanted to allow derivative works to be gener-
ated. If they did, any user could carry out these The six licences grant users the possibility of
actions without requesting permission, as it was reproducing, distributing and communicating to
already granted by the licence. Combinations of the public the licensed work provided its au-
affirmative and negative responses gave shape to thorship is credited, the legal notice of the work
different licences. If the author gave permission is maintained and it is not used for commercial
for derivative works to be created, a third option purposes. The possibility of granting permission
was included: allowing a derivative work pro- for commercial uses and of allowing derivative
vided that the newly created work came under works to be created depends on which licence
the same licence. This condition was inspired by is used. Three licences (CC BY,13 CC BY-SA,14
the concept of copyleft. CC BY-ND15) grant exploitation rights even for
commercial purposes. Four licences (CC BY,
Licences are thus legal texts which authors CC BY-NC,16 CC BY-SA, CC BY-NC-SA17) allow
or holder of intellectual property rights can the creation of derivative works, though two
use to grant permission a priori under certain of them (CC BY-SA, CC BY-NC-SA) require the
conditions. Uses which are not permitted – that same or an equivalent licence to be maintained
is, which are reserved for the author – must in the new derivative work. These two licences
be expressly authorised, as with the ‘all rights feature the so-called copyleft clause, though
reserved’ system. The conditions can likewise be only licence CC BY-SA is a copyleft licence
expressly modified. strictly speaking because it does not establish
restrictions on usage. In fact, this is the licence
The current version of the licences is 4.0 and currently used by Wikipedia.18
there are six options.12 Indeed, the internationali-
sation of the project led to the elimination of the
five licences that did not require authorship to 3. The open movement
be credited. The absence of attribution clashed
with the moral right of paternity that is included The appearance of the Web and the creation of
in most European legal systems and, as in the legal tools for openly managing rights paved the
case of Spain, does not expire over time. The way for the emergence of various initiatives and
reduction from eleven to six licences was made movements advocating open knowledge and
in version 2.0 which came out in 2004. In fact, culture. They may be considered to date back to
Digital Trends in Culture

the first Spanish licences were based on this the emergence of the concept of copyleft in the
second version. 1970s, which was subsequently developed in the
field of software. In the cultural field it is worth
The six current licences can be applied to any recalling Project Gutenberg19 as a pioneering
creation that can be protected by intellectual initiative for disseminating books in the public
property rights. Rights are granted for the same domain in digital format. It is useful to survey

24 OPEN ACCESS AND INTELLECTUAL PROPERTY RIGHTS · IGNASI LABASTIDA

the open access movement in the academic Green OA has been supported not just by re-
world and the existing initiatives in the cultural search institutions but also by public authorities
sphere. and funding agencies. It should be remembered
that since 2011 Spain has had a law (14/2011) on
Science, Technology and Innovation,23 article 37
3.1. Open access in the academic field of which states that research scholars chiefly
funded by public money must publish in a reposi-
The academic world has always aimed to share tory the final version of the content accepted for
the knowledge it gleans with society. However, publication. However, few actually comply owing
knowledge is not always shared openly – take, to the lack of monitoring by the institutions re-
for example, the results of research, which is sponsible for funding the projects.24 In contrast,
paid for mainly out of public funds. Today most in the EU, where there are similar stipulations,
of these results are disseminated in digital compliance figures are significantly higher owing
format through scientific publications, which to the insistence and even threat of cancelling
are accessed by paying, either individually or by grants if the established requirements are not
subscription. Access to these journals is thus met. Since 2014 it has been compulsory for all
restricted chiefly to people linked to centres of projects funded by the European Commission to
research that can afford to pay a subscription fee submit a copy of the resulting publications to a
that increases year after year at a much higher repository. This provision previously only applied
rate than inflation and the budgets allocated to to a limited group of projects through a pilot
purchasing resources. initiative which also achieved good results.25

To change the system of scientific communica- Publishing companies were initially wary about
tion, the so-called open access movement arose this type of OA but have gradually come round
in 2001 with the aim of ensuring that all research to the idea of authors depositing a copy of their
results would be accessible to everyone without contributions with institutional repositories,
legal, financial or technical impediments. There albeit with a few restrictions. The first concerns
had been previous initiatives of this kind, but ownership of the exploitation rights. The
the meeting held in Budapest in December 2001 publisher allows a copy of the publication to be
under the auspices of the Open Society Founda- disseminated, but retains exclusive ownership
tions was the starting point for the movement as of the contribution, which is transferred by
it is known today.20 the author as part of the agreement to publish
the article following a peer review. In some
The Budapest meeting gave rise to the Budapest cases, instead of an exclusive transfer of rights,
Open Access Initiative (BOAI),21 which was an exclusive publication licence needs to be
published on 14 February 2002. The document signed – which for practical purposes is the
set out two strategies for achieving the objective same. The second condition some publishers
of open access to research results. These two require in order for a copy to be deposited with
strategies are currently known as green OA a repository is to establish a period of time from
and gold OA. Green OA raises the need for any the publication date during which the whole
author to be able to disseminate a copy of their text cannot be accessed. This period is called
Digital Trends in Culture

publication in a file that is connected to other embargo and can last from six to sixty months,
similar ones, making it possible for users to con- though its usual duration is from twelve to
duct global searches without needing to know twenty-four months. It should be pointed out
about the existence of these files. These files that in some cases publishers do not establish
are called repositories and today most research any kind of embargo. Lastly, there is a third
centres, such as universities, have one.22 condition for granting permission: the version

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 25

 deposited must not be the final version but the used in their in-person and virtual classes? The
last version sent. In other words, the document main project that gave impetus to the open
available from the repository has been reviewed publication of teaching materials was MIT’s
by peers and includes subsequent modifications initiative called Open Courseware.26 With this
made by authors but has not been laid out by project the MIT sought to attract more students
the journal for its final publication. The most to the institution by disseminating some of the
significant scientific publishers in terms of materials used in its courses. The number of
number of publications and ‘prestige’, measured materials varied from course to course. There
according to the impact factor, use the embargo were videos of masterclasses, notes, compi-
period and format limitations to maintain their lations of exercises and lists of recommended
business model. reading materials with links to purchasing them
on Amazon. This initiative spread throughout
The second strategy proposed by the Budapest the world and was adopted by universities and
initiative was to create a new generation of education centres in various countries. In Spain
scientific journals that use intellectual property more than forty universities, under the auspices
rights to share content instead of to restrict of Universia, set up Open Courseware portals,
access and subsequent reuse. These new journals imitating the MIT.27
are called open access journals and the mech-
anism employed to offer content is a Creative The next step after sharing educational re-
Commons licence, preferably type CC BY, which sources was to offer courses. When portals with
only requires appropriate credit to be given to educational content began to spread, people
the authors and all the parties listed in the legal asked whether they could attend courses re-
notice. The main challenge faced by journals of motely, but this was not the reason these portals
this kind has been to find sustainable business were created. However, MOOCs (Massive Open
models, as income to cover the management and Online Courses) began to spring up on com-
publication expenses can no longer be obtained mercial platforms associated with prestigious
through a pay-to-read system but must come universities, initially in the United States and
from other sources. The most commonly used subsequently all over the world. The economic
method is pay-to-publish; indeed, this model model was based on offering certificates of
is often mistaken for the strategy in general. It attendance and completion of the course for
should be remembered that the proposal for about 100 euros. The courses were not designed
adopting this practice is not based on a single as part of a university degree but were aimed at
model; rather, it discusses the need to explore a wider public and spanned a variety of subjects.
different means of making open publication The use of the term ‘open’ was questioned
sustainable. An open access journal is therefore because it was not applied in the sense of open
not one where it is necessary to pay to publish, educational resources – that is, free access and
but one that is accessed free of charge and also open for reuse – but merely stated that they
allows its content to be reused under licence. Of were openly available to anyone with Internet
course, restricted access journals still exist: that access who could enrol and follow the course for
is, where it is necessary to pay to have access a few weeks.
and to pay to publish.
Digital Trends in Culture

Now that the craze for MOOCs has died down,

This idea of sharing knowledge has also spread it seems that interest in open coursework is
to the educational sphere, especially to the dis- growing again, especially in countries like the
semination of educational resources. If university Netherlands, where the government is promot-
lecturers share the results of their research, why ing initiatives while fostering open access to
should they not share the educational resources scientific publications.28

26 OPEN ACCESS AND INTELLECTUAL PROPERTY RIGHTS · IGNASI LABASTIDA

3.2. In the cultural environment Another interesting initiative in the cultural field is
OpenGLAM.33 GLAM stands for galleries, libraries,
The phenomenon of sharing content without archives and museums. There is a trend among
reserving all copyright has also spread to cultural these institutions to make their collections openly
content. Indeed, the first uses of Creative available over the Internet in order to attract
Commons licences were focused on creative in-person visitors. One of the actions carried
materials – hence their name. However, we out for this purpose is to seek the support of
should not forget earlier initiatives of groups Wikipedia through the Wikipedian in Residence
of creators who already offered their works by programme.34 This programme allows the above-
means of a statement whereby they shared or mentioned centres to play host to a Wikipedia
granted rights. A notable example is the Free Art editor, who works in-house to broaden the
License,29 another variant of copyleft licences content offered in different languages. It should
created by a group of French artists who organ- be borne in mind that the Wikipedia entries on
ised the Copyleft Attitude meetings. We might these institutions often receive more visits than
also cite the Platoniq group and their Uncondi- the institutions’ own websites. Besides improving
tional Air licence,30 which was initially created for the texts in collaboration with the curators of
an exhibition in Zurich. This licence also includes the collections, the institutions provide images of
the copyleft clause, though it restricts commer- their collections under one of the licences permit-
cial use without express permission. ted by Wikipedia, that is, CC BY or CC BY-SA (or
equivalent), or images in the public domain.
In the field of culture, the main challenge of dis-
seminating open content lies in retaining control And this brings us to one of the most controver-
over commercial exploitation. In most cases of sial issues in the digital environment: what about
licence use, commercial exploitation rights are not rights pertaining to digitisations of works in
granted a priori. In response to this practice, Cre- the public domain? In my opinion, a digitisation
ative Commons worked for a time on a tool called should be considered a reproduction and there-
CC Plus,31 which made it possible to organise fore does not qualify as generating a new work.
commercial exploitation when licences with the A digitisation does not provide sufficient origi-
NC (CC BY-NC, CC BY-NC-SA, CC BY-NC-ND) nality to be considered a work in its own right
clause were used. Users therefore already knew and therefore cultural institutions should not
how to request permission for this exploitation claim intellectual property rights. This opinion
that was not granted a priori by the licence. is in keeping with the Public Domain Charter of
the Europeana project, which states that ‘Digiti-
Work has also had to be carried out to make sation of Public Domain content does not create
licences compatible with mandatory collective new rights over it: works that are in the Public
management rights or membership of manage- Domain in analogue form continue to be in the
ment organisations which regarded licences Public Domain once they have been digitised.’35
as a threat. Today most organisations offer Galleries, libraries, archives and museums which
individualised management of works so that digitise works in their collections that are free
their members can decide whether or not to of exploitation rights must therefore clearly
include works that are disseminated under open identify this status in their digitisations instead
Digital Trends in Culture

licences, and some even offer the possibility of of embedding watermarks or other symbols
managing works licensed under non-commercial claiming rights to which they are not entitled. A
clauses. In the latter case the organisation only few institutions use Creative Commons licences
manages the commercial exploitation. There are in their digitisations in an attempt to appear less
examples in the Netherlands, Denmark, Sweden restrictive, but this use is incorrect, as someone
and France.32 cannot license rights they do not own – indeed,

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 27

 there are no rights to license. The correct prac- Notes
tice would be to use the public domain mark,
an instrument created by Creative Commons 1 The current law (Ley de propiedad intelectual)
to identify works with this status.36 The mark is available at https://www.boe.es/eli/es/
should be used in these cases. However, we rdlg/1996/04/12/1/con
need to tread carefully because, as commented 2 https://www.wipo.int/
earlier, works do not pass to the public domain
3 For example, the University of Barcelona was found
in the same way in all countries and we therefore
guilty of not respecting copyright: http://www.
find works that are copyright-free in one place
cedro.org/actualidad/noticias/noticia/2013/09/03/
but continue to be protected across the border.
la-universitat-de-barcelona-condenada-por-no-res-
petar-los-derechos-de-autor-en-su-campus-virtual
Nobody denies that digitisation has a cost and
that it is not easy to bear, but intellectual prop- 4 Pedro Jiménez, ‘¿Por qué Walter Benjamin no ha
erty should not be used as a deterrent. We might pasado al dominio público?’, Zemos98, 25 January
follow the example of the Rijksmuseum in Am- 2011, http://13festival.zemos98.org/Por-que-Walter-
sterdam, which decided to digitise its collections Benjamin-no-ha
a few years ago, clearly indicating the status 5 Miguel Jorge, ‘Por qué Peter Pan tiene unos dere-
of the works and encouraging their reuse.37 chos de autor que jamás terminarán’, Gizmodo,
Similar initiatives have even been adopted at a 3 May 2016, https://es.gizmodo.com/por-que-
few American museums, which apply Creative peter-pan-tiene-unos-derechos-de-autor-que-
Commons licences to images of three-dimen- jama-1762166241
sional objects, which can generate image rights 6 The text of the latest version of the GPL is avail-
by being photographed.38 The licences used
able at https://www.gnu.org/licenses/gpl.html
also include the public domain dedication tool,
CC0.39 This legal instrument must be used when
7 ‘What is Copyleft?’, https://www.gnu.org/licenses/
the owner of the exploitation rights does not copyleft.en.html
wish to exercise them. It acts first and foremost 8 https://creativecommons.org
as a waiver of all waivable rights. The rest are 9 ‘Eldred vs. Ashcroft’, https://www.law.cornell.edu/
licensed, and if any right remains that is impos- supct/search/display.html?terms=copyright&url=/
sible to waive or license, the holder undertakes supct/html/01-618.ZS.html
not to exercise it.
10 All six versions are available in version 3.0 of the
licences adapted to Spanish legislation. For exam-
ple: https://creativecommons.org/licenses/by/3.0/
4. Conclusion
es/

We have thus seen how intellectual property 11 For example, https://creativecommons.org/

rights have not disappeared from the digital licenses/sampling+/1.0/
world and must be respected as in the analogue 12 Licences can be chosen using this form: https://
world. However, they can be exercised in a creativecommons.org/choose/
different way so that, almost by default, content 13 https://creativecommons.org/licenses/by/4.0/
can be used for several purposes, but under
Digital Trends in Culture

conditions that need to be complied with and

14 https://creativecommons.org/licenses/by-sa/4.0/
respected. 15 https://creativecommons.org/licenses/by-nd/4.0/
16 https://creativecommons.org/licenses/by-nc/4.0/
I hope this survey of how to make knowledge
17 https://creativecommons.org/licenses/by-
openly available helps foster creation and respect
nc-sa/4.0/
for creators.

28 OPEN ACCESS AND INTELLECTUAL PROPERTY RIGHTS · IGNASI LABASTIDA

18 https://en.wikipedia.org/wiki/Wikipedia:- 29 http://artlibre.org/
Text_of_Creative_Commons_Attribution-ShareA- 30 http://motorhueso.net/aire.htm
like_3.0_Unported_License
31 An explanation of how this instrument works and
19 https://www.gutenberg.org/ examples of its usage can be found at: https://wiki.
20 https://www.budapestopenaccessinitiative.org/ creativecommons.org/wiki/CCPlus
background 32 Details of the various collecting society projects
21 https://www.budapestopenaccessinitiative.org can be found at: https://wiki.creativecommons.
22 There are various directories of repositories, for org/wiki/Collecting_Society_Projects
example OpenDOAR, http://v2.sherpa.ac.uk/ 33 https://openglam.org/
opendoar/ 34 This page explains in detail the Wikipedian in
23 Ley 14/2011, de la Ciencia, la Tecnología y la Inno- Residence programme and gives examples of stays:
vación https://www.boe.es/eli/es/l/2011/06/01/14/ https://outreach.wikimedia.org/wiki/Wikipe-
con dian_in_Residence
24 Fecyt, ‘Informe de la comisión de seguimiento 35 Europeana, ‘The European Public Domain Char-
sobre el grado de cumplimiento del artículo 37 de ter’, April 2010: https://pro.europeana.eu/files/
la Ley de la Ciencia’, 2016, https://www.fecyt.es/ Europeana_Professional/Publications/Public_Do-
es/publicacion/informe-de-la-comision-de-segui- main_Charter/Public Domain Charter - EN.pdf
miento-sobre-el-grado-de-cumplimiento-del-articu- 36 https://creativecommons.org/share-your-work/
lo-37-de public-domain/pdm/
25 The statistics can be consulted at the OpenAIRE 37 https://openglam.org/2013/02/27/case-study-
project: https://monitor.openaire.eu/fp7-stats-new rijksmuseum-releases-111-000-high-quality-images-
(FP7) and https://monitor.openaire.eu/h2020-stats- to-the-public-domain/
new (H2020).
38 https://art.thewalters.org/license/
26 https://ocw.mit.edu
39 https://creativecommons.org/publicdomain/
27 A 2009 version of the Open Courseware Consor- zero/1.0/
tium page can be consulted showing the degree
of adoption of the project at state universities in
https://web.archive.org/web/20090420021417/
http://www.ocwconsortium.org:80/index.php?op-
tion=com_ocwc&task=profiles&co=ES&Itemid=160
28 Dutch Ministry of Education, Culture and Science,
De waarde(n) van weten: Strategische agenda hoger
onderwijs en onderzoek 2015-2025 [The value(s) of
knowledge: strategical agenda higher education
and research 2015-2025], The Hague, 2015. https://
www.government.nl/binaries/government/doc-
uments/reports/2015/07/01/the-value-of-knowl-
edge/the-value-of-knowledge.pdf
Digital Trends in Culture

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 29

 TOWARDS ECONOMIC
SOVEREIGNTY IN CULTURE:
CULTURAL-ECONOMIC
INNOVATIONS LINKED TO
THE ADOPTION OF NEW
TECHNOLOGIES 1

Mayo Fuster Morell (Dimmons) · @lilaroja

Digital Trends in Culture

Mayo Fuster Morell is director of research on collaborative economy at the Internet Interdisciplinary
Institute of the Universitat Oberta de Catalunya (Dimmons). She is also faculty affiliate at the
Berkman Klein Center for Internet and Society of Harvard University. She is in charge of the BarCola
group of experts on collaborative economy and collaborative production at Barcelona Council and
organises the event Procomuns: Commons Collaborative Economy and the Sharing Cities Summit.

30 TOWARDS ECONOMIC SOVEREIGNTY IN CULTURE · MAYO FUSTER MORELL

The mounting importance of the information that are being transformed by digital innovations
and knowledge economy, the growing signifi- and innovative new organisations that mimic a
cance of cognitive ability in the north owing to few old formulas for the sake of convenience or
the spread of education on several levels, and to adapt to the economic and cultural context.
the fast pace of technological change have led to There appears to be a diverse range of economic
a shift to what has been called a chiefly knowl- and cultural strategies.
edge-based Internet society (Castells, 2001). The
central role played by information, knowledge This article surveys the emerging cultural innova-
and culture in this type of society heightens the tions that are mediated by new technologies and
importance of how cultural production is man- designed to democratise, as well as analysing the
aged and regulated. related economic models. It begins by defining
the main emerging economic models in culture
It seems evident that changes and regulation in that are mediated by new technologies, and goes
the use, exploitation and distribution of informa- on to examine strategies based on case analyses.
tion, culture and knowledge have led to the emer- It then highlights the main emerging trends: the
gence of an often conflictive dialectic between FLOSS production model, maker economies,
several existing logics, as well as clashes between match-funding, and blockchain technology
different conceptions of culture and the various and complementary social currencies. The
ways of making the most of the possibilities article ends with a section on final remarks
offered by ICTs (Information and Communication that stresses two main ideas. The first is that
Technologies). Visions of, and demands for, free innovations in cultural practices and in economic
information, shared ownership of infrastructure sustainability reflect and feed back into each
and ‘digital commons’ stand in contrast to those other. They go hand in hand. The second is
focused on private appropriation and private use that we are currently between two waves of
of information, culture and knowledge. All this is cultural-economic innovation: that which took
happening in a context of increasingly precarious place at the height of the adoption of ICTs and
relationships and working conditions. free culture (2001−11), and an emerging wave in
which blockchain technology, social currencies
It is evident that cultural creation has gained and/or partnering with the public authorities (as
greater importance thanks to new technologies, in match-funding) can play an important role in
and cultural innovation centred on harnessing sustaining emerging cultural innovations under
the democratising potential of new technologies conditions of economic sovereignty in culture.
is particularly interesting. However, this poten-
tial cannot be developed, or its development will
be limited, unless it goes hand in hand with the Emerging economic models
development of new models of economic sus- in culture mediated by
tainability adapted to emerging cultural forms. new technologies
It will be difficult to preserve creators’ rights and
tap into the potential of new technologies unless Research on the economic models of emerging
adaptation and innovation in economic models forms of culture that are mediated by new
takes place. Economic sovereignty, as a possible technologies and designed for a democratising
Digital Trends in Culture

means of engaging economically in an activity purpose is relatively recent and tends to focus
without losing rights over it, is proving to be a on assessing the diversity of models linked to
crucial issue for the future of culture. the new digital economy, and on detecting the
patterns that characterise this type of economy,
It is not clear whether we are simply dealing which differs from more closed and traditional
with a meeting point between old organisations models.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 31

 The new emerging models linked to open and as in the field of Open Source and work in ICT,
Internet logic (Benkler, 2006) and informational- the opening up of licences, the freeing of con-
ism (Castells, 2001) are inevitably reflected in the tent or the use of crowd mechanisms are being
economic models to which open software and adopted as competitive capabilities in a highly
p2p creative communities, even fandoms, have mediatised and hyperconnected society.
given rise over the past decades, as success sto-
ries. However, each case of cultural production It is very interesting to examine the contri-
is sufficiently complex as to be able to produce butions to the specific field of Open Design,
a sustainable income model imitating another according to which digital goods (in this case
in a different environment, with very different patterns or blueprints, videos, articles, images)
products, services or communities (Benyayer, are becoming free, common or open goods
2016). under appropriate FLO licences, whereas the
physical versions (3D prints, furniture, clothing…)
In-depth studies of the present moment point or derivative services (consultancy, training and
to a proliferation of hybrid formulas of open teaching, development or tailored creation) are
and closed innovation, or innovation with dual becoming the chief means of income, except
licences with both copyright and copyleft. in cases where these sources of income are
Authors such as Chesbrough state that or- combined with public sources (for example,
ganisations must be structurally remodelled in subsidies). Paramount importance is given (or it
order to allow these new types of processes and is stated as a goal) to accessibility and ‘creative
accordingly speed up innovation and allow it to empowerment’ or design media literacy with
flow. The traditional organisational structures respect to users with significantly diverse back-
and formulas of the industrial age are inefficient, grounds.
restrictive or out of keeping with new the new
logic of organising and managing resources, Another aspect that adds further complexity to
including intangible assets (information, the study of the cultural micro-economy is the
knowledge…). very diversity of cultural practices, which are
increasingly transcending the classical categories
Although most attention is focused on innova- of culture or of the cultural industries, or of the
tions linked to new management technologies then divorced ‘creative industry’, and are reclas-
(Big Data, Business Intelligence, algorithms…), sifying science, creativity and part of technology
new media (transmedia, gaming, virtual reality…) as culture. One of the most significant trends to
and new means of funding (crowdfunding, bear in mind is the perspective of the so-called
start-up-type investment methods), efforts have attention economy, which regards attention as a
also been made to determine the characteristics scarce commodity and an external factor linked
and specific features of the organisations and to human interaction with the media (digital or
initiatives that work with the logics of producing otherwise) and considers the latter to be linked
cultural and symbolic capital. to a cultural asset.

With respect to open business models, there Although the capacity for visibility in the digital
is confusion between complete business or media has increased with respect to the previous
Digital Trends in Culture

economic sustainability models and income analogue era owing to lower access barriers in
mechanisms based on participatory or collabora- a variety of channels (free profiles on several
tive methods, including more occlusive or hybrid digital platforms and being able to communicate
models (for example, musicians such as NIN and directly with many), it is not as significant as it is
Peter Gabriel are mentioned in this connection). sometimes made out to be in a few professional
A vision is also being shaped of a moment where, fields. Some of the factors that undermine

32 TOWARDS ECONOMIC SOVEREIGNTY IN CULTURE · MAYO FUSTER MORELL

visibility are the large number of channels (peo- a) Free access without sharing or making
ple’s attention is divided in an extensive ‘media ownership open. This is an open- as
ecology’), constant changes in algorithms and opposed to a commons-based model: it
visibility logics in digital platforms, and the diffi- seeks to offer content more openly and
culty of attracting new audiences (an unknown publicly for a purpose that can vary greatly
artist who does not have much of a network will depending on each project and can have
have fewer resources and capabilities for scaling a relatively positive cultural impact. Many
than one who is very well known). companies, entrepreneurs and freelancers
use this approach as a digital marketing
Therefore, communication has become an im- tactic; it is therefore compatible with other
portant ingredient in developing business models models, both open and closed, though
and it is necessary to progress towards gover- when open access to content – though
nance models that make it possible to balance not ownership – becomes the core of the
the visibility and economy of digital platforms. model, we are talking about models of this
The emphasis should be placed on allowing kind.
artists and creators who do not receive so much
attention – because they are new or because Examples: Tesla, SXSW Festival, IAM
they address minority or different themes – to Media Weekend…
have greater visibility in order to create a more
open and enriching cultural ecosystem. Subcategories: freemium, free-to-use,
brand communities with a platform.
As for economic sustainability, a few examples
of common innovative mechanisms for obtaining b) Inspired by FLOSS and open hardware:
income in the open environment are: donations, various types of organisations that gen-
crowdfunding, adapting an open work to a erate open and/or common goods and
more specific need, public subsidies and loans, which, to avoid damaging their open and/
match-funding (combination of public and or free nature, seek means of income from
private funding), subscription, membership fees, complementary economic activities.
sponsorship and patronage, or pay-what-you-
want and pay-after-the-show systems. Monetising physical goods: Arduino, Spark-
FunElectronics (the latter borrow open
In contrast, a model of economic sustainability designs from third parties and produce
(which may imply not for profit) or a business and/or distribute them on their platform),
model (for profit) entails reconciling a value maker spaces and a few fab labs.
proposition (the content, work or services it
offers), the needs or wishes of a social group or Monetising intangibles and services: Red
clients (which involves finding, at least initially, Hat, initial Arduino model.
a group potentially interested in the value of its
perception and the symbolic and social capital Monetising platform management: Lektu,
cost) with access to and maintenance of the Deviantart, many crowdfunding platforms.
resources needed to maintain production and
Digital Trends in Culture

distribution. c) Platform Cooperative: platform for

exchanges or apps offering services. They
The reference models for the culture sector in may appear familiar because they resemble
general can be considered to be: the previously mentioned platforms or
unicorns in some aspect, or they may be

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 33

 cultural work cooperatives assisted with Based on a sample of innovative cases, we have
an internal platform. The platform can carried out a survey of the casuistry and realities
be regarded as a common good that is in a local environment. This involved contacting
shared by the members of the cooperative. more than a hundred organisations and classi-
Examples: Resonate (similar to Spotify), fying their initiatives into four main groups or
Smart IB ... categories:

d) Not for profit.

1. Traditional models with innovation
1. Open knowledge platform. They can
vary greatly; they are usually platforms We find, on the one hand, organisations with
where other people deposit open the appearance of traditional cultural spaces
knowledge or content voluntarily. and companies, such as bookstores, publishing
houses and a theatre. If we also include some
Examples: Wikipedia, El Recetario of the cases belonging to the sub-category of
isomorphic cooperatives and proto-coops, such
2. Communities with a platform. This as La Caníbal bookshop and Zumzeig Cinecoop-
model seems to be in decline, in that it erativa film cooperative, it can be seen that there
is the brands of creative tools (such as are real local examples which show that it is
Adobe) or video games that generate possible to put into practice new ways of organ-
and monopolise their own community ising and managing these more traditional or
platforms (forum type), where they historical organisations and spaces – either more
allow users to use part of their intel- horizontally (with a cooperative-, foundation- or
lectual property (brand, part of the association-type governance model), or partici-
code for generating mods in the case patorily (by sharing spaces with other publishers
of video games, etc.). Previously they and authors, searches, experts or individuals with
were communities that arose sponta- similar cultural aims) – and to generate debates
neously, for non-profit purposes. that go beyond commercial presentations; in
other words, improving on the traditional model
Examples: Communities of fans of a of the type of spaces to which they belong
handicraft or cultural hobby (cosplay, (in this case, bookstores) and on traditional or
science, etc.), or a fictional universe (Ice merely commercial and functional logic.
and Fire Wiki ...).
We also find an interesting tendency to establish
e) Individual artists. Given that a significant cooperatives or entities that are organisationally
number of culture-sector creators and similar to the cooperative model (referred
creative people are usually self-employed, to here as isomorphic cooperatives and pro-
it is interesting to briefly examine one of to-coops). Viewed from the outside, they follow
the most modernised models currently similar paths to other creative and knowledge
being shaped with the involvement of agencies and organisations in operational and
digital platforms. They offer works (music, economic or morphological terms, but choose
Digital Trends in Culture

illustrations, literature, etc.), limited open a structure and internal governance which are
knowledge ... predominantly distributed and – forgive the
repetition – cooperative, with important impact
Examples: Fran Meneses (illustrator), or social transformation values.
writers, musicians (Amanda Palmer)....

34 TOWARDS ECONOMIC SOVEREIGNTY IN CULTURE · MAYO FUSTER MORELL

2. Digital native models companies with open or flexible organisational
structures (which expand or contract, by collab-
The expansion of the Internet over the past two orating with other organisations or freelancers,
decades sparked the gradual emergence of new or working from a core of two or three people)
models and spaces of cultural production and depending on the flow of projects.
knowledge, many of them based on collabora-
tion and participation among peers. Spanning Here we find the subcategories of citizen
from the emergence of Web 1.0 to new post-dig- science, collective knowledge and generation of
ital practices (where the activity space exceeds urban laboratories; cultural activism and activist
the on-off limits), this category refers to cultural art; and technological pedagogy for specific
and creativity- and knowledge-based organi- groups. The cases included in these categories
sations that rely on digital platforms and their apparently rely more on traditional economic
potential (and, by default, limitations), but also sustainability models than on the associative
draw inspiration from or imitate digital culture movement or artistic practice.
in an anthropologically broad sense, referring to
practices, approaches or customs.
4. Value exchange spaces,
In all the areas classified within this category, catalysts and hubs
there is generally no single common pattern
in terms of organisational structure or income This last category brings together myriad cases
strategy, but rather a significant variety of that share operations. They range from collective
structures, dimensions, volumes, practices logics (such as mutual support, cooperative
and orientations that match the criteria of the work, professional networking and financial
investigation to a greater or lesser extent. This is support etc.) to various degrees of participation
due in part to the bias that occurs when observ- and governance. What is interesting about this
ing these new and not so innovative formulas field is the very diverse practices, formulas and
based around the technological component; or, origins that are encompassed by or make up the
in other words, although the common denom- abovementioned logics, especially for generating
inator and core of many of these projects are resistance to the economic system of cultur-
digital platforms and tools, and involve different al-creative sectors and professionals in many of
ways of operating, the purposes and final strat- the cases studied.
egies are diverse. Therefore, the organisations’
structure, culture and production model are Over the past decades the cultural and cre-
heterogeneous. ative sector has witnessed a proliferation of
independent agents or individual professionals
who, for personal reasons but above all due to
3. Models based on forms of the economic and sectorial context, have found
social and/or cultural activism themselves with no alternative but to operate
as freelancers, at best. In several of the world’s
This category covers initiatives and organisations major cities with a more or less dynamic creative
where the mission or purpose, with a high social sector (especially linked to the advertising
Digital Trends in Culture

impact, is central to all activity and, in some subsector), this precarious situation, exacerbated
cases, is even the main priority when defining a by the recent economic crisis, has led to the
model of economic sustainability to the detri- emergence of not-for-profit initiatives designed
ment of possible profitability. The organisations to create networks for this segment of free,
which belong to this type are generally coop- self-employed professionals, entrepreneurs of
eratives, associations and in a few cases small small-scale initiatives or unemployed, as opposed

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 35

 to other kinds of networks and ‘creative clubs’ consensus on types of business model among
that are aimed especially at the major creative the categories examined here (though there are
companies and firms. similarities), and less so among conventional
categories such as the type of legal organisation
All in all, economic innovations are more closely or the cultural or artistic environment in which
related to formulas for obtaining income – or they operate. Details of the initiatives, by areas
at least that is what an initial survey of the or categories, are supplied in the following table:
cases indicates. There does not seem to be a

Table 1. Innovation models. Case sample

TRADITIONAL MODELS WITH INNOVATION

- Tuuulibrería bookstore
Traditional cultural spaces and enterprises: theatres, cinemas
and other spaces that are usually linked to the more traditional - Gigamesh bookstore
culture (showbusiness, 20th-century culture, that of the - Calders bookstore
cultural industries, etc.) but display, specifically here, traces of - Orciny Press-Inner Circle
cultural, socio-cultural or economic-cultural innovation.
- sala Beckett

- Utopia 126
- BeAnotherLab
- Apps4Citizens
Transformed creative companies: enterprises, associations,
organisations and initiatives which, despite having the - Coocció
more usual appearance of traditional creative services or - MobilityLab
of emerging creative industries, have embraced open, free, - Domestic Data Streamers
participatory cultural practices in some way.
- Internet Age Media Weekend
- Mandarina
- MOB-Makers of Barcelona
- CreaRSA
- Lamosca
- Txarango
- Metromuster
Isomorphic cooperatives and proto-coops (associations): - RiceUp
organisations usually classifiable as belonging to the
- La Tremenda
creative industries which are established and/or operate as
cooperatives, with links to the social and solidarity economy. - La Hidra Cooperativa
- La Ciudad Invisible
Digital Trends in Culture

- Espai Contrabandos
- La Caníbal bookstore
- Zumzeig Cinecooperativa

36 TOWARDS ECONOMIC SOVEREIGNTY IN CULTURE · MAYO FUSTER MORELL

DIGITAL NATIVES

- CCCBLab
- Barcelona Photobloggers
- ARSGames
Webs, blogs and diaries: platforms with informative or
- Vilaweb
educational content or news with open and/or free formulas.
- Nativa (Indigestión)
- El Crítico
- Lamosca.tv
- Grupo Open Street Map Barcelona
- Freesound
- Consorcio de Servicios Universitarios de
Cataluña: Memoria Digital de Cataluña,
Digital goods or content platforms: webs and platforms, or Materiales Docentes en Red, Revistas
entities and communities, that operate from 2.0 platforms (for Catalanas con Acceso Abierto, Depósito de la
example, Wikipedia) for sharing digital goods or even those Investigación de Cataluña, Tesis Doctorales en
that could be described as commons. Red
- Hamacaonline
- Filmin
- La Tejedora
- Teatron
- Sharing Academy
- Lektu
Cultural marketplaces: organisations and initiatives belonging
to or playing some part in the so-called platform economy - Myplayz
and/or collaborative economy in a very broad sense; they are - Chefly
often involved in developing new ways of overcoming barriers - Cooncert
between creators and audiences, or in promoting new types of
- Screenly
relationships between both (traditional) agents of culture.
- Azoteas en Cultura (Asociación
Coincidencias)
- Fab Lab Barcelona
- MakerConvent
- TransfoLAB
- Libertar.io
- Makea Tu Vida
- MADE Makerspace
Makers and open design: cases which share links with the so- - Holon
called maker and open design trends, both culturally (in terms
of practices, creation formats, values and common ideas) and - La Deriva, espacio adisciplinar
economically (economic practices and models). - Atta33 Makerspace
- TMDC, Taller para la Materializacion y el
Digital Trends in Culture

Desarrollo de (grandes) Conceptos

- Mediodesign
- Leka Open Source Restaurante
- Macu
- Tangencial

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 37

 BASED ON FORMS OF SOCIAL AND/OR CULTURAL ACTIVISM

- Colectivo Punto 6
- DIYBIO Barcelona
- Platoniq
Citizen science, collective knowledge and generation - Razones Públicas
of urban laboratories: cases that offer services and some - PublicLab
resources for the development of participatory or collaborative
practices, or consultancy in open innovation, or for citizen - Colectivo Vuelta, arquitectos
science, all with a positioning based on civic values. - Lacol, arquitectura cooperativa
- Amical Wikimedia
- Iniciativa Barcelona Open Data
- Taller de Historia de Gracia
- Xnet
Cultural activism and activist art: cultural entities that - Taller de Infografía Popular
approach activism with creative tools or are oriented towards
cultural activism. - Colectivo Enmedio
- Megafone.net

- MakerKids Barcelona
Technological pedagogy for specific groups (children, - Girls in Lab
women ...): initiatives whose purpose is to bring technological
sovereignty closer to specific groups. - Soko Kids
- Tarpuna

Action on gender, feminism and transgender and transsexual - Asociación Cúrcuma

issues: organisations that promote an inclusive and tolerant - Post Op
view of non-normative perspectives of gender and/or
sexuality and combined with arts or culture, or even with edgy - Quimera Rosa
philosophies. - Mantis Lab

VALUE EXCHANGE SPACES, CATALYLSTS AND HUBS

- LabCoop
- Can Batlló
- La Escocesa
- DeDO Barcelona / Ableton Live Barcelona
- Audio Commons
- Goteo Barcelona
Organisations and platforms that help or catalyse other - Creativechain
cultural or creative initiatives, or facilitate the circulation of - CreativeMornings Barcelona
new ideas, new practices, or mutual support among members - Ladies, Wine & Design
at different intensities among a specific community. - Extraordinaria
Digital Trends in Culture

- SMartib
- La Fundición
- Gràcia Territori Sonor / Festival LEM
- BccN film festival
- GRAF festival
- La Litera fair

38 TOWARDS ECONOMIC SOVEREIGNTY IN CULTURE · MAYO FUSTER MORELL

Drawing on two cocreation sessions with a the near future, similar to match funding, which
selection of the organisations included in the they had been planning and designing for some
sample of representative cases as founders or time. In most cases, the most common failings in
promoters of different types of cultural and cre- this aspect are lack of a structure and resources
ative initiatives, we can make a few observations to be able to put them into practice. In general,
on the context of the traditionally most frequent the main desire was for greater sustainability
or emerging economic practices involved in a and stability, or a balance between income
project’s sustainability. and expenses, which in many cases they found
difficult, or did not manage, to achieve.
Exchanging services or products for a monetary
value, in any variant or strategic position in the The mechanisms that did not receive any type of
business models (including, for example, services interaction, that is, those which the participating
and products derived from an open or free projects had not used or in which they had not
work), is one of the mechanisms for generating shown any apparent interest, were indirect
active income that is also more common, at crowdfunding (including mechanisms such as
least, among the participating projects; even so, crowd ticketing); the sale of data collected from
it is not the main source of income in all cases. websites, apps, the Internet of things ...; and the
sale or hire of spaces for advertising (including
One of the most significant aspects observed advertisements made through intermediary
was that all the projects used more than one services, such as Adwords).
mechanism, method or economic practice to
obtain income and funding – what we might The main proposals in the debate on possible
call multi-channelling (operating from the logic public policies for supporting the sector are:
of diversifying economic channels) – and this is
perhaps one of the most interesting economic • Stronger commitment to projects with a
innovations. high socio-cultural risk, such as feminism,
eroticism, independent production and
However, there is some dependence on, or at socio-cultural activism.
least a tendency towards, access to public fund-
ing, especially in cases where there is considered • Improve or speed up payment by public
to be a certain difficulty in generating constant administrations, especially to creators, as
income due to several factors: for example, payment periods of sixty days – or often
where the organisation’s staff do not work full several months – from the date of com-
time but part time or as volunteers in their free pletion of the service makes their situation
time, or where the purpose, values and​​ orien- more precarious.
tation of this organisation are non-mainstream,
alternative or considered downright radical, • Optimise the hiring or acquisition of collec-
making it difficult to gain a larger audience or tive public or neighbourhood facilities based
scale sales. on needs, the existence of an involved
community, or regulations.
As for desired mechanisms, interest in exper-
Digital Trends in Culture

imenting with economic innovations and in • Programme of subsidies for basic structures:
addressing certain types of public or private subsidies that include and/or are oriented
funding is a common feature. Only in one to supporting derivative costs, such as rent-
case (Barcelona Open Data Initiative) was the ing working spaces, for projects with low
intention expressed to adopt a hybrid formula in profitability to help boost their feasibility.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 39

 • Subsidies for internationalisation, for of getting together to produce culture, new
example for translating websites into other aspects or cultural trends that give rise to a
languages, or for professional trips. review of social issues: post-gender, post-digital,
reformulation of audiences ...) that intrinsically
• Promote a face-to-face programme of share new formulas or totally innovative full
conferences on micro-funding and fast business models. Most of the selected cases
microloans. have little experience (they are ‘young’) and have
been experimenting with diversifying sources of
• Create hubs with local professionals and income and funding, not only in terms of ‘diver-
projects with similar interests in order to sifying their portfolio of services or products’,
share experience and knowledge. which would be a more traditional business
mechanism.
In general, one of the most important conclu-
sions that can be drawn is that many of the par- It is true that a trend may be in the making.
ticipating projects are, or have been, minimally But there is also a strategic or paradigmatic
dependent on public funding. The correlation component in reformulating economic-produc-
between projects that can be considered more tive-cultural models, as is more clearly the case
alternative, or niche, or politically differentiated in the maker field. In this case, they are finding
and greater dependence seems somewhat themselves forced to rethink issues that vary
clearer. from the way they are designed or shared or the
social impact they have to formulas for funding
Visibility and attention in digital and non-digital and opportunities that can be used to generate
environments are also economically significant new formulas.
aspects (although non-monetary, they are key
to production and reproduction at various levels It seems that regulations, also understood in
of the projects). This fact, together with the the sense of the context and socioeconomic
importance – repeatedly stressed during the framework to which they belong, pressure
sessions – of reaching audiences able to support them to adopt, adapt or, at best, ‘hack’ both
the projects (economically or otherwise), has the pre-existing economic formulas and the
highlighted the existing difficulty of reaching practices of inverse isomorphism. This fact is
potential audiences, even though with the likewise perceived as possibly also being related
Internet the cost of having a voice for the first to internal factors, such as lack of knowledge
time has been lowered. of new realities, mechanisms, resources (both
public and private, community, etc.) or alterna-
A common problem shared by many of the tives in general.
participants was the difficulty of standing out at
very different scales of industry and large indus-
tries, either for economic reasons or to secure Emerging trends
differential positioning, as well as for political
reasons or reasons related to cultural values, We wish to highlight four emerging trends that
where many see a tension inherent in having to are pointing to cultural-economic innovations:
Digital Trends in Culture

imitate or tone down their content to cater to

more mainstream or popular tastes. • the FLOSS production model: because it
is a field with decades of innovation that
To conclude, we noted that there is no clear allows us to appreciate how collaborative
pattern of sociocultural innovations (new ways innovation can evolve in other areas;

40 TOWARDS ECONOMIC SOVEREIGNTY IN CULTURE · MAYO FUSTER MORELL

 • Maker economies: because it is a new field ing new challenges. Some configurations, such as
with the potential to apply the principles of Linux, can be seen as forms of collaboration that
the intangible value of the FLOSS model to provide innovative solutions to the dilemmas
the material value of goods; arising from the production of public goods and
common infrastructures. In other cases, these
• match-funding (and the Goteo case study): models can be used more to configure new ways
because it is an income model that ap- of concentrating value and power.
peared in the previous wave of innovations
and now seems to be reinventing itself; and All this gives us a glimpse of a very broad and
largely unexplored field of innovation for public
• blockchain technology and complementary policies, since public actors, paradoxically, have
and social currencies: because they are two fallen behind the market with respect to em-
trends that have yet to be consolidated but bracing these new developments. It is not that
point to a new wave of economic innova- public support programmes for FLOSS projects
tion in a few years’ time. have been lacking: indeed, such programmes
have been run on many levels; however, studies
that evaluate public initiatives and their results
‘FLOSS: a new model of are lacking. Another issue that has yet to be
production’ (Marco Berlinguer) sufficiently explored, and is almost ignored, is
how to adapt the emerging digital commons to
The free software and open source ecosystem market practices and state functions in the new
arose in the nineties in largely informal commu- informational paradigm.
nities almost entirely based on voluntary col-
laborative work. These projects developed new The diversity of past and current experiences
licences that reversed the principle of exclusivity makes this city ecosystem an international ref-
imposed by intellectual property rights. Yochai erence point with respect to experimentation in
Benkler suggested that we were witnessing the an original manner of articulating public policies
emergence of a third production model, different applied to this model of technological, social and
from the market and the public-institutional economic innovation.
sphere, which he dubbed ‘peer production based
on common goods’ (Benkler, 2006). There are many issues and potential areas of
action in which progress can be made. It is
Today it is true to say that the FLOSS ecosystem essential to map the ecosystem of the actors
has greatly evolved. Projects designed by small who revolve around the FLOSS and to develop
communities and freelance developers have also an effective system of ensuring visibility. But it
given way to the participation of companies is also vitally important for cities to be capable
in the use and development of free software. of cooperating, coproducing and sharing among
Although there may be some inconsistencies, the themselves. Developing public-public coopera-
use and development of FLOSS is now power- tion (among various public administrations), and
fully present in the strategies of many companies surrounding it with extensive ecosystems and
and has proven to be a powerful tool in areas markets, is probably the most powerful as yet
Digital Trends in Culture

such as cost reduction, speeding up innovation unused means of exploiting the potential public
and creating synergistic ecosystems. actors have failed to tap in these new forms of
production.
FLOSS’s market expansion is advancing with its
own ambiguities and contradictions and is pos-

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 41

 ‘Maker economies, based The maker movement had often been charac-
on digital manufacturing, terised by defining itself as a movement that (a)
and parallels with culture’ promotes creative and technological sovereignty,
(Elisabet Roselló) as well as (b) proactivity (Do It Yourself); (c) shuns
the idea of the
​​ solitary entrepreneurial genius
The new production trends linked to manufac- in favour of the power of the group (DIWO, Do
turing are becoming increasingly aligned with It With Others); (d) shares designs, knowledge
the creative sector, scientific research practices and online and offline processes; and, finally, (e)
and ongoing R&D. Design plays a fundamental adopts community self-management in physi-
role in this as it is closely connected with the cal-digital spaces (maker workshops supported by
development of new technologies (take, for digital tools and platforms, for example).
example, 3D printers).
There is much disagreement over the conception
From the 2000s onwards in particular, open of the maker as an attitude or strategy towards
hardware communities emerged from semi-pri- technological, creative and productive sover-
vate initiatives, especially start-ups. Many eignty, or as a creative subsector and instrumen-
projects set out to overcome the digital-tangible tal means of achieving a model of progress and
division and experimented on the basis of economy. This last point has led the term maker
transdisciplinary paradigms with the use of to arouse misgivings among some creators,
digital manufacturing tools and hardware in a inventors and educators, although they could
distributed or decentralised fashion, seeking be identified with this tendency to be guided by
to go beyond the conventional framework of constant learning based on trial and error, cre-
centralised and mass industrial production. ating and inventing at reduced prices or hacking
and altering hardware or physical objects.
The first fab lab was created in 2001, and today
there are more than 1,200 worldwide (Fab What interests us in connection with the cultural
Foundation, 2017). They are defined as ‘a global sphere, on the one hand, is that the so-called
network of local labs, enabling invention by pro- maker movement is consonant with new trans-
viding access to tools for digital fabrication’ (Fab disciplinary approaches that may include art,
Foundation, 2017), taking the term ‘network’ to crafts and other techniques and creative spaces.
mean a brand in a primarily operational sense of Except for a few specific initiatives, the advent
sharing knowledge, designs, support and advice, of these new waves of transdisciplinary creativity
among other aspects. The spaces themselves and post-digital manufacturing, which combine
are defined as ‘a technical prototyping platform new and old techniques, could be traced back
for innovation and invention, providing stimulus to the ‘conceptual shift’ that the Hangar space,
for local entrepreneurship. A Fab Lab is also a promoted since 1997 by the Association of Visual
platform for learning and innovation: a place to Artists of Catalonia (Asociación de Artistas
play, to create, to learn, to mentor, to invent’ Visuales de Cataluña, AAVC), made in its second
(Fab Foundation, 2017). year of life. Furthermore, 2007 saw the estab-
lishment of Fab Lab Barcelona, the first Spanish
The economic model of the fab labs is highly fab lab and one of the first in the world. And in
Digital Trends in Culture

diversified. There are fab labs that are makerspaces 2011, the Makers of Barcelona space was opened
or workshops driven by grassroots movements (as- in the Arc de Triomf area; with a business model
sociations of amateur and technological activists, based on coworking, it aimed to bring together
coworking creators ...), by universities and educa- freelancers and people from the creative sector
tional entities as a space for learning and research, and makers in a broad sense.
foundations or even partnerships of companies.

42 TOWARDS ECONOMIC SOVEREIGNTY IN CULTURE · MAYO FUSTER MORELL

Today the maker movement itself appears to ics of the major players in the sector made it
have matured and is perceived more critically. It more difficult for local projects with proximity
encompasses all kinds of projects, some stem- platforms to take root and establish connections.
ming from the first initiatives of the movement These and other factors explain why new formu-
and others that represent new models and las were experimented with for exploring how
purposes, but they all, in general, entail new to increase the effectiveness and resilience of
formulas and are evolving in different directions. the sector, whether for cultural or other kinds of
projects.

‘Match-funding as a formula The Goteo platform has been a pioneer in the

for micro-funding: a case study development of the international match-funding
at Goteo’ (Enric Senabre) model. It was one of the first to start operating
locally and internationally from Spain, in 2011,
Crowdfunding platforms have evolved since the covering different sectors and areas with what
first decade of 2000, when they proliferated has been called ‘civic crowdfunding’ (Davies,
considerably. One of the modes of operation 2014). This activity has been growing steadily
that have arisen as a result of this evolution is and currently spans a particularly broad variety
match-funding, or matching funding between of types of cases, users and initiatives.
citizens and institutions.
Goteo’s calls for funding are organised around
This specific funding model allows different promoters, either public or private institutions,
kinds of organisations to multiply their financial which launch appeals for projects in certain areas
contributions to individual users’ projects. It is that they wish to promote, announcing the total
characterised by its effectiveness compared to amount of capital available (the ‘match-funding
usual crowdfunding campaigns, as well as its pool’) to multiply individual donations and
implications with respect to impact or links to providing the rest of the details and conditions
other institutions and funding methods. of the call. Several initiatives ‘compete’ to earn
the favour of the donors until the last round (in
Prior to the emergence of crowdfunding, the which Goteo’s feasibility experts also partici-
concept of match-funding with matching do- pate), when the campaigns that will finally be
nations or payments was already being put into able to access the capital of the pool of funds
practice in charitable, philanthropic, or public are selected.
contexts (Görsch, 2011). At the institutional level,
the most popular model had been one in which The platform has been successfully implementing
a public organisation, sponsor or corporate social this formula since 2013 with universities, regional
responsibility entity released the remaining governments, private foundations, local councils
funding in the form of an investment (as a grant and innovation agencies, its calls being focused
or loan) in a project that obtained another on projects in the fields of sociocultural or edu-
substantial part of its target funding through cational innovation, childhood and cooperation,
other channels (Walker, 2016). cultural heritage and public domain assets,
entrepreneurship, health, smart cities projects,
Digital Trends in Culture

Many crowdfunding initiatives, however, were education, cultural heritage and the arts.
unsuccessful. The establishment of a minimum
funding goal required to get the projects off the If the funds raised by the campaigns fall short of
ground meant that when insufficient funds were the established target, the same mechanism is
raised they were not allocated to any campaign activated as for the rest of the campaigns: the
and had to be returned. In addition, the dynam- money committed and displayed is returned at no

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 43

 additional cost to the individual users and conven- musical, cinematographic or artistic production
ing institutions (who see how money preassigned in general, and this allows them to meet these
to projects that have not received sufficient social expenses without having to rely on conventional
support through crowdfunding is saved). currency.

In match-funding as practised at Goteo, interest- Most use either conventional digital technology
ing dynamics for channelling significant volumes or paper vouchers. Although they are very
of public or private funds appear to be at work in recent, there are also interesting cases of cur-
the form of a type of donation that encourages rencies generated according to the blockchain
citizens to participate far beyond what the funds protocol to contribute to the commons; their
could achieve on their own. The already increasing development needs to be monitored. Solarcoin,
use of crowdfunding for creator communities in for example, was created in 2014 to fund the
Europe and worldwide is expected to grow even installation of renewable energy generators.
more in the coming years. Therefore, options such
as match-funding and its tendency to associate Whether they involve charging commission on
trans-institutional funding strategies, where each exchange for which the currency is issued,
initiatives with a social impact need to be set in through seigniorage, paying in kind or saving
motion, may lead to an improvement not only in conventional currency through exchanges of
effectiveness, but also in the visibility and local im- collaborations and other mutual favours, the ex-
pact of these still new hybrid financing formulas. amples presented show how complementary and
social currencies are not only instruments that
offer their users funding in general but are also
‘Social currencies for commons employed to fund different types of commons.
and cultural activities’ (Susana
Martín and Yasuyuki Hirota) In the field of public policy, there are a number
of EU-funded projects (Commonfare, B-Min-
Among the trends that are not currently consol- come, Vilawatt, etc.) that aim to promote some
idated but may gain momentum in the coming kind of cultural, social or environmental benefit
years as part of a new wave of economic innova- funded by complementary and social currencies.
tion, there are different cases of complementary These pilot projects are focused on evaluating
and social currencies – specifically the type that the impact of these instruments on the achieve-
help fund what could be called ‘positive exter- ment of the goals, and it will be interesting to
nalities’ or the commons, particularly cultural assess the results when they are completed.
activities.
Complementary and social currencies offer many
There are cases like Chiemgauer, of Bavaria, potential benefits, as they provide an alternative
which allocates 3% of all the currency issued means of funding for all types of infrastructures,
to social purposes. In Catalonia the Turuta was goods or activities for the public good. How-
issued to pay for what the community wished ever, creating an instrument that is accepted
to finance. There is also Peces in Honduras, a as payment by a community is a considerable
currency issued to pay for the services necessary challenge, since the community must be able to
Digital Trends in Culture

to produce biodiesel, in order to reduce the perceive the benefits of accepting an instrument
country’s oil dependence and CO2 emissions. other than conventional money as payment and
And the Brazilian Fuera do Eixo group uses an this requires the team responsible to possess
exchange scheme, similar to a LETS system, great technical and communicative skill and be
whereby members pay each other for all kinds prepared to spend many hours working with the
of auxiliary services and collaborations for people involved.

44 TOWARDS ECONOMIC SOVEREIGNTY IN CULTURE · MAYO FUSTER MORELL

‘Blockchain and culture’ themselves. In Spain there have been two ICOs
(Marc Rocas) to date, one of which, Creativechain, 2 was
created in the field of culture and generated
Blockchain is a technology that makes it pos- 480,000 euros in May 2017. 3 Cultural projects
sible to store data and conduct transactions in account for two percent of this figure.
an open, public, pseudo-anonymous, secure,
neutral, immutable way, and without having to Many projects all over the world are considering
rely on third parties that act as mediators to applying blockchain technology to transform the
generate trust. The transactions, which contain music business by cutting out third parties, that
the data, are validated by the node that records is, by bringing musicians and consumers closer
them and are included in data blocks. Each block together. 4 Some of the projects in this area are
refers to the previous block, hence the name Pledge Music5 and Mycelia,6 the latter promoted
blockchain. Blockchain uses a consensus mech- by the singer Imogen Heap. One of the options,
anism to accept the inclusion of a new block in not only for musical artists but for editors of
the chain. digital content too, for example, is to implement
micropayments as a means of monetising their
Blockchain technology is one of the so-called creations. The idea always involves charging a
DLT (Distributed Ledger Technologies) technolo- small amount for the minimum unit of transmis-
gies. DLTs are technologies that allow data to be sion of the created work: in the musical world,
stored immutably, distributed, and synchronised by listening to a song or fragment; in the world
between the nodes of a network, with the of digital publishing, by reading an article, for
capacity to guarantee transparency, privacy and example. For instance, SatoshiPay7 allows you
security. There is currently a certain amount of to obtain small payments for each minimum
misuse of the terms blockchain and DLT and content unit (download, second of a video, extra
some confusion and interference of business life in a game ...).
interests. In some environments, blockchain
technology is used to refer to a certain type of The use of cryptocurrencies entails a paradigm
networks (which are actually permissioned and/ shift regarding how we use money habitually
or private), and in others it is applied generically in digital transactions (access to our bank ac-
to any kind of DLT (open and closed). In addi- counts, online transfers, online payments, etc.).
tion, it is also used in the plural sense to refer, Paradoxically, this new culture is very similar to
not to technology, but to the various networks the transmission of paper money. We need to
that use blockchain, as in expressions such as break through the technological barrier posed
‘blockchains use several systems of consensus’. by the management of digital wallets, of private
and public passwords, of digital addresses, and
One of the possible applications of blockchain of what basic security measures we must take
technology in the culture sector is cryptocurren- to protect our money. In this respect we need
cies. They have sparked the emergence of a new to develop practical environments for natural
project funding system based on crowdfunding, learning. One is the implementation of social
which is called ‘Initial Coin Offering’ (ICO). ICOs currencies in city environments, based on DLT
consist in obtaining liquidity in exchange for the technologies.8
Digital Trends in Culture

issuance of tokens with a fixed value, which are

issued in the form of a cryptocurrency. Living culture is closely linked to the develop-
ment of models of co-creation between peers,
Unlike other financing systems, ICOs do not between equals. Peers must be viewed not as
accord any rights or title to the company that isolated elements that are added at specific
issues them other than the value of the tokens times, but as part of a network of talent, knowl-

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 45

 edge and transmission of culture, a live network waves. This will allow readers to make compari-
whose elements interact continuously. To facil- sons, reinforcing the idea that the economy and
itate their virtual as well as their physical inter- culture mirror each other in both waves.
action, it is necessary to develop communities
capable of pooling talent and physical resources.
Wave of adoption of ICTs and
Blockchain makes it possible to create struc- free culture (2001−11):
tures for sharing resources between creators
and artists (time, work, a study, equipment or Cultural practices:
tools, knowledge ...), in which the characteristic
elements of any platform are present (connect- • Transfer between and from the arts, and
ing members of two communities, means of dissemination of creative tools: breakdown
payment and means of reputation and trust). of barriers between cultural sectors and
The public policy proposal involves creating expansion of artistic expression to subjects
a space of spaces, a network of talent and other than professional artists.
resources which, although sponsored by public
policies, becomes a market for exchanging talent • Collaborative production supported by the
and resources between the public and private Internet and open knowledge ownership
spheres, and, in a second phase, is exportable models emerge.
to other cities so that the concept is no longer
confined to a particular territory and permits • Expansion of production linked to intangible
interaction between city-nodes of knowledge, environments and digital environments,
talent and culture. more integrated models mixed with the
material dimension.

Final remarks. The mirror between Economic reflection:

culture and economy: the end of
a wave of cultural and economic • Interest linked above all to project rather
innovation and the emergence of than individual sustainability.
a new wave for advancing towards
economic sovereignty in culture. • Debate on value.

We wish to stress two main ideas. The first is • Dependence on subsidies prevails. But the
that innovations in cultural practices and eco- range of options is broader and multiple
nomic sustainability reflect each other, feed back sustainability strategies appear.
into each other. They go hand in hand. The sec-
ond is that we are currently between two waves • Emergence and consolidation of crowdfund-
of cultural-economic innovation: that which ing as a means of financing.
took place at the height of the adoption of ICTs
and free culture (2001−11), and that which is
now emerging, in which blockchain technology, Emerging wave:
Digital Trends in Culture

social currencies and/or alignment with public

administrations (such as match-funding) can play New areas of cultural practices:
an important role.
• Expansion of collaborative practices
We will now briefly summarise and contrast the supported by the cultural creation network
main elements that are characteristic of both and unrelated to the political dimension

46 TOWARDS ECONOMIC SOVEREIGNTY IN CULTURE · MAYO FUSTER MORELL

 of knowledge. Common vision under the They also stem from a vision of the commons
umbrella of the Ostrom school as a model under the umbrella of the Ostrom school as
of governance, and of non-ownership a model of governance as opposed to public
and public nature of production (digital ownership of production (digital commons).
commons).
There is a significant increase in the undertaking
• Increase in practical action with institutions. of action with institutions. Discourses that are
critical of technology are also increasing. Of
• Increase in discourses that are critical of particular note are emerging areas of creativity
technology (‘the Internet dream is dead’). and artistic applications on emerging technol-
ogies, such as artificial intelligence, blockchain
• Emerging areas of creativity and artistic technology, biohacking and virtual reality. Artistic
applications on rising technologies: artificial interventions are framed in a post-truth context,
intelligence, blockchain, biohacking and while a greater co-creation link with science can
virtual and/or augmented reality. be detected (as, for example, with science shops).

• Artistic interventions in the post-truth This is reflected in the economic sphere in a

context. Greater links and co-creation with greater concern for individual sustainability
science (science shops). based on collective entrepreneurship options, in
some cases also in alignment with the coopera-
Economic reflection: tive movement. Strategies of economic sustain-
ability and resilience are community based and
• Greater concern with individual sustain- seek to enhance other results, not only economic
ability based on collective entrepreneurship results. In this connection there are currently
options. Confluence with the cooperative many nascent practices or means of achieving
movement. economic sustainability (complementary social
currencies, cryptocurrencies, basic income ...).
• Economic sustainability and communi- Perhaps the greatest contrast is between the
ty-based resilience strategy (outcome of the bloc focused on dependence on subsidies and
value debate). that geared to the social market.

• Greater access to public subsidies (albeit

with a very harmful subsidy model). To end: four necessary
debates and a question
• Two groups with various types of practices
(each with a set of identities, networks and The following issues need to be debated on:
funding channels): dependent subsidies ver-
sus subsidies oriented to the social market. • The ethics of consultancy (regarding knowl-
edge management) and interaction with
• Pathways of economic sustainability in an public administrations.
initial state: social currencies and cryptocur-
Digital Trends in Culture

rencies, basic income. • The gender and environmental perspective:

a greater communicative dynamic does not
The new areas of cultural uses are characterised ensure greater social responsibility.
by the spread of collaborative practices that rely
on networks of cultural creation and are unre- • The future of work and employment in this
lated to the political dimension of knowledge. sector.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 47

 And we would like to end by putting a question transformadores a la ciutat de Barcelona. Pro-
to readers: how can we conquer the space of grama Cultura Viva. http://ajuntament.barcelona.
the economy, of economic sovereignty, from cat/culturaviva/publicacions/innovacions-cultur-
the cultural field as a means of guaranteeing als-i-economiques/
creators’ rights?
Programa Cultura Viva, Ayuntamiento de
Barcelona: the Cultura Viva programme presents
Bibliography the results of the research carried out during the
past two years and establishes a debate on its
Benkler, Yochai, The Wealth of Networks: How main contributions to community management,
Social Production Transforms Markets and Freedom, cultural economies, democracy, citizen innova-
New Haven, CT, Yale University Press, 2006. tion and diversity. http://ajuntament.barcelona.
cat/culturaviva/
Benyayer, Louis-David (coord.), Open Models.
Business Models of the Open Economy, Cachan, Dimmons, research group with expertise in
France, Without Model, 2016). collaborative creation. www.dimmons.net

Castells, Manuel, La galaxia internet. Reflexiones

sobre internet, empresa y sociedad, Barcelona, Notes
Plaza & Janés, 2001.
1 This article is the result of research conducted for
Davies, Rodrigo, Civic crowdfunding: participatory Barcelona council’s Cultura Viva programme, in
communities, entrepreneurs and the political econ- which Elisabet Roselló took part in assisting with
omy of place, 2014. Available at SSRN (https:// the research and Maura Lerga helped edit the
ssrn.com/abstract=2434615) or at http://dx.doi. content. The authors of the knowledge pills on
org/10.2139/ssrn.2434615 emerging trends are mentioned in the text.
2 https://www.creativechain.org
Fab Foundation, What qualifies as a Fab Lab?,
3 The exchange value of the cryptocurrencies in
2016. Available at http://www.fabfoundation.
euros according to the May 2017 exchange rate.
org/index.php/what-qualifies-as-a-fab-lab/index.
html. Last accessed 15 November 2018. 4 https://techcrunch.com/2016/10/08/ how-block-
chain-can-change-the-music-industry
Görsch, Markus, Komplementäre Kulturfinan- 5 http://www.the-blockchain.com/2016/10/10/
zierung: das Zusammenwirken von staatlichen und blockchain-can-change-music-industry-part-ii
privaten Zuwendungen bei der Finanzierung von 6 http://myceliaformusic.org
Kunst und Kultur, Berlin, dissertation, 2001.
7 https://satoshipay.io
Walker, Catherine, A Great Match, Charities 8 Carme Jané, ‘Barcelona tindrà la seva moneda
Trust / RBS. Available at https://cdn.thebiggive. digital per a ús social’, El Periódico, 14 November
org.uk/static/docs/A-Great+Match-EVersion.pdf 2017. Available at http:// www.elperiodico.cat/ca/
barcelona/20171114/ barcelona-tindra-seva-mone-
Digital Trends in Culture

da-digital-us-social-6423549
Resources

Full research published in the book: Dimmons

(Mayo Fuster et al.), Una nova economia per una
nova cultura: Innovacions culturo econòmiques

48 TOWARDS ECONOMIC SOVEREIGNTY IN CULTURE · MAYO FUSTER MORELL

CULTURAL AND
INTELLECTUAL CREATION
AND THE DIGITAL
ENVIRONMENT: THE IMPACT
ON HUMAN RIGHTS

Diego Naranjo · @DNBSevilla

Diego Naranjo is a lawyer and cofounder of the human rights organisation Grupo 17 de Marzo. For
the past six years he has been specialising in human rights. He holds a master’s degree in Human
Rights from the European Inter-University Centre for Human Rights and Democratisation in Venice.
Diego joined the NGO European Digital Rights (EDRi) in October 2014 and works on
protecting fundamental rights and freedoms on the Internet. As Senior Policy Advisor at EDRi,
he is concerned with personal data protection, surveillance and privacy, as well as copyright
regulation. He is also a member of the expert group on digital rights of the Spanish Ministry
of Energy, Tourism and Digital Agenda. Before joining EDRi, Diego worked at the European
Digital Trends in Culture

Agency for Fundamental Rights (FRA) and the Free Software Foundation Europe (FSFE).
He co-authored the Council of Europe paper DGI(2014)31, Human Rights Violations
Online, which was prepared by EDRi for the CoE and published on 4 December 2014. He
has contributed to international journals on labour rights and human rights, the journal
La Toga and the journal of the Criminal Tribunal for the Former Yugoslavia, and writes
periodically for the digital publication EDRi-gram, EDRi’s fortnightly e-bulletin.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 49

 1. The concept of Organization (WIPO) was established the
‘intellectual property’ following century at the Stockholm Convention
of 1967. The founding of WIPO strengthened
Cultural creation is legally regulated through the so-called ‘intellectual property’ institution
the concepts of authors’ rights (in civil law globally. Initially a commercial organisation, it
systems) or copyright (in common law systems in later became part of the United Nations system.
English-speaking countries), which as a rule are Today the agency is funded by contributions
used indistinctly. Generally speaking, the copy- from its 191 members.
right system is encompassed by the vague term
‘intellectual property’, a recently coined concept At the European level, the directive commonly
which covers aspects as different as patents, known as InfoSoc (Directive 2001/29/EC of
trademarks, copyright, so-called designations of the European Parliament and of the Council of
origin and designs. 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the
The protection of authors’ rights (strictly information society) laid the groundwork for
speaking, copyright) dates back to the so-called copyright legislation in Europe. However, its
Statute of Anne, which was enacted in the application is so flexible that knowing which
United Kingdom in 1709. This statute established rights (‘exceptions’ and ‘limitations’ to copyright)
rules for allowing the owners of printing houses there are in each country is an arduous task.1
to reproduce their works exclusively for a certain
period. The Statute of Anne highlighted the Spanish legislation has incorporated European
social importance of this exclusive right, allowing law and has progressively evolved in recent
works to be reproduced in order to be publicly years, particularly by restricting the concept of
disseminated. ‘private copy’ in an attempt to put a stop to the
downloading and illegal distribution of copy-
French legislation on authors’ rights (droits right-protected content.
d’auteur) lays the foundations of the systems
for protecting cultural works in the countries
with continental legal systems and differs from 1.2. Proposals for improvement
copyright in that it regards the work as an and pitfalls to avoid: copyfails,
extension of the author’s personality, placing the filters and privatisation of law
emphasis on the author, whereas in the concept
of copyright the emphasis is on the work. These The current legal system governing copyright is
two approaches to the protection of ‘intellectual so fragmented in Europe that it is impossible to
property’ gradually became merged. speak of a European digital market and access
to culture is hindered. In addition to the chaotic
system of freedoms to use protected content
1.1. International, European (the ‘exceptions’ and ‘limitations’), we should
and Spanish framework: WIPO, also bear in mind the constant proposals for es-
InfoSoc and the Spanish law tablishing content filters, the situation of authors
on intellectual property (who are insufficiently remunerated), the exces-
Digital Trends in Culture

sively long period of protection granted to works

The Berne Convention (1886) laid down interna- (until seventy years after the author’s death), the
tional standards on authors’ rights, as the related unnecessary obstacles to datamining, geo-block-
regional and national systems must respect the ing and private copy levies, and the restrictions
convention in their own legislation on these on devices imposed by DRM technology.
concepts. The World International Property

50 CULTURAL AND INTELLECTUAL CREATION AND THE DIGITAL ENVIRONMENT · DIEGO NARANJO
Most of the ongoing debates on copyright could be to revise the current systems for repre-
reform are centred on strengthening the imple- senting authors and analyse the best strategies
mentation of existing regulations instead of on and structures that can help give visibility to the
the need to amend the regulations themselves. viewpoint of new creators (youtubers, bloggers)
We need to ask whether there is any future in who do not belong to the traditional authors’
the ‘strategy’ of attempting to stem the flow associations (SGAE, Sabam…). Lastly, it is neces-
of downloads and streaming bare-handed; or, sary to review the systems for protecting rights,
worse still, of attempting to stem it with inef- both legal (European directives and regulations,
fective ‘dams’ and digital ‘filters’ that are often laws of Member States) and private (terms of
illegal. Instead, it is necessary to review the pol- service, content filters, requests through the
icies governing copyright protection, bearing in DMCA…), and their compatibility with European
mind new technologies and the fact that, given and national legal systems. For this purpose
the failure of the culture market, many citizens authors, copyright holders, cultural institutions
exercise ‘cultural self-defence’ and attempt to (libraries, museums, private galleries…), digital
access protected and unprotected works using platforms and civil society all need to have a
the means available to them. say in the debate, which is currently dominated
chiefly by copyright holders and copyright
The new policies designed to protect authors’ collecting agencies.
rights are based on forcing private companies
to take their own measures which, if legal in
nature, could be ruled unlawful by courts. This 2. Copyfails: recipes for
phenomenon is known as the ‘privatisation of fixing the existing disaster
law’ whereby the platform services become the
Internet police and judges, deciding on which As I stated in the first section, there are a num-
content should be available and which should be ber of structural problems in copyright regula-
classified as hate crimes, apology of terrorism, tion. Although the suggestions for improving it
pornography or copyright infringements. would provide enough material for a treatise, I
have summed up what I believe to be the main
The copyright system is antiquated, pursues problems in five points.
unrealistic goals and, to ensure its own survival,
implements measures which tend to seriously Listed below are five of the copyfails – failures
compromise several fundamental rights. The in the current copyright system – which, in my
whole system needs to be overhauled to guaran- opinion, need to be analysed in any self-respect-
tee that creators are appropriately remunerated, ing European-wide copyright reform:
while allowing citizens to access culture. An ini-
tial step in this direction would be to harmonise
the whole system of exceptions and limitations Copyfail #1. Harmonising to
at the European level in order to ensure that all make everything equal
Europeans enjoy the same freedoms. This would
allow any citizen to legally make parodies and re- The aim of the InfoSoc Directive2 was to
mixes and use a work for educational and other harmonise the European Union’s then chaotic
Digital Trends in Culture

purposes that do not affect its normal exploita- copyright system. The reason (and the European
tion (an essential part of the Berne Convention’s legal framework) was marked by the Digital
three-step test). A second step would be to have Single Market, which was one of the main goals
the European Union International Property Of- of the European Commission. This ‘harmonising’
fice (EUIPO) draw up a catalogue of alternative directive provides for twenty-one optional
remuneration systems for creators. A third step clauses on users’ freedoms which can be applied

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 51

 (or not) in each national legislation. With har- Why is this important?
monisation as the goal, the directive was already
floundering by the fifth article. These freedoms, Citizens must have the same rights across
called ‘exceptions and limitations’,3 specify how the European Union if we want the EU to be
to get round copyright regulations: that is, when credible as such. The Digital Single Market needs
a particular use of a protected work is legal to harmonise copyright regulations ,7 unless we
without the consent of the right holder, in that want to continue with the ‘twenty-eight single
it does not interfere with the exploitation of the markets’ we currently have.
work by the ‘creator’ (copyright holder). Some
of these freedoms include, for example, the use Some of the consequences of this first copyfail
of copyright-protected material for educational are:
uses, adapting content for people with visual or
hearing difficulties, making copies for private use • In the United States, it is forbidden for
or being able to quote the work for academic or music lovers8 to make copies of the music
informative purposes. they have legally purchased.

Member States wishing to put the directive • In Austria and Lithuania it is illegal to email
into practice can choose between including or quotations from protected works.9
excluding any of these optional exceptions. As a
result, there are literally more than two million • In some countries, such as France, the use
ways of implementing the directive.4 In an open of copyright-protected works in schools
Internet without boundaries it is unthinkable is much more limited10 than in others like
that flexibilities which do not interfere with Estonia. In Estonia teachers are allowed to
the habitual exploitation of the material should compile works of any kind for educational
not be implemented compulsorily throughout purposes in volumes that are separate from
the EU. This can only be explained by the huge the original, quote unlimitedly and even
capacity of collective management organisations translate and adapt entire works – all of
and multinational media services companies to which would be unheard of in France.
impose their version of the events (the story of
the impoverished author whom the impoverish- Is there anything we can do about it?
ers claim to defend) at the European and state
levels.5 Yes, make all the exceptions and limitations
permitted by international law compulsory, not
Because, evidently, the maximalist copyright optional. Unfortunately, this possibility is cur-
lobbyists have been vehemently opposed to rently not being considered.
any type of copyright flexibility (that is, they
are opposed to the exception to the exception).
Indeed, in 2001, when the directive was adopted, Copyfail #2. Turning private
the lobbyists argued that the only compulsory companies into Internet
exception (relating to temporary copies created police and judges
when content is transferred over the Internet)
Digital Trends in Culture

was impossible to apply and would lead to ‘a The European copyright system needs to be
gaping hole in rightsholders’ protection’.6 Fifteen fully overhauled. But instead of getting down to
years on, it is evident that there is no such hole. work and fixing the system’s problems, European
Yet even today, they are still lobbying against a co-lawmakers seem to have reached the conclu-
more flexible copyright system. They are just as sion (without evidence to back the logic) that
mistaken now as they were then. the best option is for private companies (pref-

52 CULTURAL AND INTELLECTUAL CREATION AND THE DIGITAL ENVIRONMENT · DIEGO NARANJO
erably foreign) to become the private Internet • Accomplished artists can also be victims of
police and that this will solve all the problems. the ‘copyright private police’. Sony Music
deleted a video James Rhodes had recorded
Why is this important? of himself playing a piece by Bach – a
composer who died hundreds of years ago –
Privatised Internet law enforcement undermines in his own living room.14
democracy and poses significantly serious prob-
lems for fundamental rights, especially freedom • The academic and copyright reform activist
of expression. Yet in current copyright debates Larry Lessig had a presentation taken
the focus is nearly always on further developing down on the grounds of a false copyright
privatised law enforcement, not on reforming infringement.15 As if this were not enough, it
copyright legislation to make it work in the happened to him a second time.16
twenty-first century.
How can we fix it?
Why is this a bad idea? To start off with, because
Internet companies are always going to go for By ceasing to promote initiatives (at the time of
the easy option. If they fear legislation, fines or writing we have: the proposal for a EU copyright
bad publicity, it will always be simpler and safer directive, the proposed regulations for prevent-
for them to eliminate perfectly legal content ing the dissemination of terrorist content, etc.)
as collateral damage along with illegal or un- which empower private companies to become
authorised content, just in case. European and Internet censors.
national initiatives for deciding which content
should remain and which should be taken down
evidently lead to censorship and abuse.11 There- Copyfail #3. Not remunerating
fore, using copyright rules to eliminate what creators fairly
politicians deem ‘undesirable’ content12 is a direct
threat to freedom of expression. It also leads to When people talk about reforming copyright
the elimination of rights such as quoting, parody- laws, the official excuse is usually authors’ finan-
ing, etc. (known as ‘fair use’ in the United States) cial situation. And quite right too. Authors use
as a result of algorithms such as YouTube’s their time, talent and passion – and often their
‘contentID’. This has a chilling effect – individuals own money as well – to create cultural works
censor themselves to avoid possible copyright for others to enjoy. They are very often forced
infringements. to hand over part of their rights to a company,
such as a publisher or record label. They might
Let us examine a few examples of how mistaken do so because it gives them the chance to
this initiative is: reach a wider audience – at least compared to
if they attempted to distribute and promote
• ContentID pulled down the video of a their creation themselves. Unfortunately, this
university lecture who was calling for does not always benefit authors; in the case of
harsher copyright legislation to protect musicians, most end up receiving only a tiny part
sporting events13 (remember the exception of the total price for which their work is sold on
Digital Trends in Culture

for academic uses?). streaming platforms.17

• Sony Music deleted a talk on copyright Actually, authors’ interests (at least those of
given by a Harvard lecturer. most of them) are a whisper that is barely heard

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 53

 in legislators’ offices, as they are drowned out (especially the Berne Convention18 and the TRIPS
by the corporate messages broadcast by major agreement19) suggest a shorter protection period,
companies with their loudspeakers. Interme- but the EU is trying to be holier than the pope.
diaries such as publishers and record labels or
authors’ societies (SGAE in Spain, Gesac at the It is questionable – not to mention absurd – that
European level) dominate the discussions on an author’s rights should need to be protected
their behalf (but not always in their interests). after his death, even from a financial viewpoint.
There is an urgent need to give authors greater Most books cease to be published a year after
control and a bigger say in negotiations with their first edition comes out,20 and the same is
those intermediaries. The EU should step in and true of music and films. This means that most
recognise authors’ need to receive just rewards works do not make money21 for a long period of
for their output instead of preserving antiquated time. When it is no longer profitable for publish-
(and unfair) business models that only benefit ing houses to bring out new editions of a book
the intermediaries’ industry. but the book is still protected by the ‘author’s’
rights (which in this case are held by the pub-
Why is this important? lisher), no other publishing company can publish
it freely. And this is the reason why many works
Remunerating creators fairly is the reason why are simply disappearing.
copyright exists. If this remuneration largely
goes to intermediaries, the regulations are about In Europe this has led to what is called the
intermediaries’ rights, not authors’. ‘twentieth-century black hole’: the fact that
countless works are unavailable because publish-
There is no easy solution, especially as there are ers are not publishing them and the ‘protection’
so many different types of authors in different of the author’s (publisher’s) rights prohibits their
types of cultural industries. But there are steps distribution by any other means, commercial
that can be taken to improve their situation. or otherwise. This absurd overprotection of
There is evidence and there are analyses and copyright also prevents us from digitising our
proposals. All that is needed is to put them into cultural heritage and is a hindrance to research,
practice. education, commercial innovation and artistic
expression.
How can we fix it?
Why is this important?
By giving authors more negotiating power vis-à-
vis right-holding companies, publishers, record Ultimately, this extensive copyright protection
labels, etc., similar to that which employees does not protect any author’s rights and does
enjoy with respect to employers in labour law. not generate sizeable profits for the immense
majority of intermediaries. It makes it difficult to
create new works and delays the public dissemi-
Copyfail #4. Remunerating nation of books, music and films.
dead authors as an incentive
for them to carry on creating As the non-governmental organisation Electronic
Digital Trends in Culture

from beyond the grave Frontier Foundation (EFF) states, the extension
of copyright protection is rejected by university
Copyright protection in the EU extends to as professors,22 technology companies, non-profit
long as seventy years after the author’s death. organisations, and associations of authors and
Various agreements that regulate copyright users .23 Even the US copyright office (which is

54 CULTURAL AND INTELLECTUAL CREATION AND THE DIGITAL ENVIRONMENT · DIEGO NARANJO
not usually accused of favouring ‘piracy’) has technology is the new legislator and decides to
stated that the term is too long and has pro- take our rights away. By definition DRM en-
posed options24 for reducing its duration. croaches on all these freedoms under the guise
of preventing copyright infringements.
How can we fix it?
Why is this important?
By limiting the copyright term to the minimum
period proposed by the WIPO and holding future As stated earlier, if someone puts a lock on
talks aimed at curtailing it even further. something you own, it’s not for your benefit – it
means you are no longer the owner. DRM pro-
tections are digital locks placed on your devices
Copyfail #5. ‘Any time someone without asking for your opinion or permission to
puts a lock on something you own install them and, of course, you are not given the
against your wishes, and doesn’t key. Copyright experts agree that DRM systems
give you the key, they’re not doing it do not achieve the desired aim and are harmful
for your benefit’ (Cory Doctorow) to society, companies and artists.25

In the offline world we can lend our friends a The purpose of copyright is to guarantee that
book, photocopy its pages, quote parts of it artists and creators are rewarded for their work
or sell the book in a second-hand shop. With (so that they can carry on creating) and it should
digital works such as eBooks, CDs and DVDs, we not be used to curb our freedoms and rights of
face technical restrictions that prevent us from access to culture. In short, DRM systems do not
lending an eBook to a friend (unless we lend solve the problem for which they are designed
them our eBook reader as well) or from making (unauthorised copies and exchanges of eBooks,
a copy of a DVD we have bought, even as a music and videos) and add unnecessary restric-
back-up. Even if the law allows this in theory, tions on content that has been legally obtained.
European and international legislation states that
companies can question our rights by imposing How to fix it?
digital rights management (DRM) software that
limits the possibilities of reproducing our digital By banning the installation of DRM technologies
property. without the user’s consent and abolishing the
ban on breaching DRM protection.
DRM is a set of systems used to protect
copyright in electronic media such as music
and films, as well as software. Basically, what it 3. Censorship machines:
does is restrict the user’s ability to access, copy, content filters and their
transfer and convert digital content. As if the impact on human rights
lock were not enough, breaching this protection
(breaking the lock they’ve put on a book that Article 13 of the proposal for a copyright direc-
belongs to you) is illegal according to European tive submitted by the European Commission in
regulations. September 2016 recommends putting responsi-
Digital Trends in Culture

bility on Internet platform service providers to

Since DRM is merely a tool that does not take prevent cultural works from being made publicly
into consideration legal freedoms to use pro- available. Basically, the Commission is calling for
tected works in order to parody, quote or make a change in the system currently in force, estab-
private copies of them, etc., not allowing DRM lished by the Directive on Electronic Commerce
protection to be breached means in practice that (including the impossibility of generally monitor-

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 55

 ing electronic communications), and has tabled a to searching through millions of specific files (out
proposal for the possibility of creating censorship of all those uploaded to a platform).
machinery (algorithms) that will read every bit
that is uploaded – all to safeguard all-powerful Basically, their argument is that the prohibition
copyright. only applies to the monitoring of files when
there is no idea of what is being searched for.
The proposal has sparked opposition from As European legislation allows data to be moni-
seventy Internet luminaries,26 the UN special rap- tored on a platform in ‘specific cases’, we would
porteur for freedom of expression, David Kaye,27 be dealing with millions of specific cases. It is
NGOs,28 programmers29 and scholars.30 As if this evidently absurd to suggest that a general search
were not enough, it roused such anger among of all the files uploaded to a platform to check
thousands of citizens who spoke out (through them against a database containing millions of
calls, emails, tweets and public events) against files does not constitute a general search.
the censorship machine that the Euro MPs
threw out the first draft in July 2018. The right
holders, who did not expect such audacity from Claim 2: Filters will not affect
the public, stepped up their efforts during the the right to private life, as
summer (including a music band in the European personal data will not be used
Parliament) and managed to convince enough
Euro MPs two months later (once the text had Advocates of content filters insist that filters of
been prettied up) to reject their own opinion on this kind are not illegal bearing in mind the juris-
the pretext that the outspoken citizens were in prudence of the CJEU (Scarlet vs. SABAM33 and
fact bots, and that all the opponents of article SABAM vs. Netlog34) because their filter does
13 were the puppets of Google (the supposed not entail encroaching on individuals’ privacy
villain of the story). I will now refute one by one or processing personal data. According to these
the false claims made by the record industry and cheerleaders of censor algorithms, their filter will
copyright collectives. only register the file identifier, not the content or
the identity of the person who uploaded the file.
This is a ridiculous claim, because if it were true
Claim 1: Analysing every file that it would be impossible to establish a complaints
is uploaded is not tantamount to mechanism for users without knowing who had
a general obligation to monitor uploaded what file.
electronic communications
(prohibited by the EU) There are other issues with respect to data
protection and privacy: the new right established
Article 15 of the Directive on Electronic by article 11 on any type of text that is longer
Commerce prohibits any general obligation to than any other snippet previously published.
monitor data. This prohibition has been reaf- To be able to enforce this right, every sentence
firmed and refined by the Court of Justice of the uploaded to the Internet will have to be auto-
European Union (CJEU) in various judgements matically checked against a database containing
(Scarlet vs. SABAM31 and SABAM vs. Netlog32). the publications (theoretically worldwide) of the
Digital Trends in Culture

The advocates of the content filters proposed past twenty years.35 Apparently, in the opinion of
in article 13, although aware of the prohibition, copyright maximalists, a filter that reads every
argue that such a system is not a general obliga- line of text that is uploaded (tweets, comments
tion because since the filter would scan specific on the social media, blogs…) does not qualify as
archives (those identified in the database as a violation of privacy.
protected by copyright) this would ‘only’ amount

56 CULTURAL AND INTELLECTUAL CREATION AND THE DIGITAL ENVIRONMENT · DIEGO NARANJO
Claim 3: The complaints mechanism agencies, who claim (no doubt rightly) that they
for users will compensate for cases do not receive enough from companies like
where the filters do not work YouTube and SoundCloud. Although this may be
true, it seems to be chiefly a problem of abuse
The proposed mechanism to enable users to get of their dominant position. The most logical
round the problems of the filters will be ineffec- option would be to address copyright issues with
tive in practice because companies will have to copyright solutions, and problems of anticom-
choose between: petition rules with strategies designed to ensure
there is competition. But logic often keeps a
Creating a specific mechanism in their company safe distance from legislation so as not to affect
for analysing the legality of all content uploads private interests.
and checking whether they come under any of
the national exceptions for educational purposes,
parody, quotation, etc., or Claim 5: If we include a mention
of the European Charter of
Going down the simpler and cheaper route of Fundamental Rights, it will
declaring everything that is picked up by the serve as a talisman against the
filters to be a breach of their terms of service; ills we are creating ourselves
that is, of companies’ private laws which do
not enshrine the prerogatives established by The European Charter of Fundamental Rights is
the European Charter of Fundamental Rights a fundamental legal instrument of the European
for restrictions of rights. The Wild West exists Union and applies directly to the European
online. Commission and the Member States. To insert a
clause specifying that a particular measure must
The European Commission’s proposal is based on respect fundamental rights does not add any-
the – scientifically unfounded – hope that com- thing in practice. More importantly, it is legally
panies will choose the complicated and difficult incorrect and meaningless with respect to the
route for tackling users’ complaints instead of measures chosen by private companies, to which
the cheaper and simpler way. the Charter does not apply (directly).

Claim 4: Article 13 will fix the Claim 6: Content filters are cheap and
so-called value gap between any company can implement them
platforms and right holders
Another argument that is fairly widespread
The record industry recognises year after year among Euro MPs and promoters of filters in
(see its annual reports of 201736 and 201837) that other institutions is that these filters are cheap39
its profits are continuing to grow. In 2017 alone and affordable for any company (including
this increase amounted to 60.4% for online SMEs), even though giants like YouTube and
content (streaming), and the overall growth SoundCloud have invested millions of euros in
figure was 5.9%. Aside from this growth – which that technology.40
Digital Trends in Culture

authors wouldn’t mind having for themselves

– lobbyists of the content industry stress that Content filters are not ‘a’ tool. They are a com-
there is a value gap (if you belong to the record plex and expensive combination of text filters,
industry) or ‘transfer of value’38 (if you are a filters for reading quotes (as inside an image
copyright collective) between online platform shared on Twitter), a filter for audio files, another
services and right holders or copyright collective for audiovisual files, another for images, and so

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 57

 on. In practice, small European companies will Sources and recommended reading
not be able to afford this technology and will
have to give way to non-European giants that
are capable of competing in the market. Copyfail #1

‘Copyright combinatronics’ (16.11.2011)

Claim 7: After all, it’s about
getting Google to pay https://edri.org/edrigramnumber9-22copy-
right-combinatronics/
The lawmaker seems to think that the proposal
for a copyright directive is about putting certain ‘Copyright exceptions and limitations – back to
platforms in the spotlight: YouTube/Google the future’ (25.03.2015)
and Facebook. The problem of regulating the
Internet as if it were only YouTube and Facebook https://edri.org/copyright-exceptions-and-lim-
is that we could end up with an Internet where itations/
only they exist. Google has lobbied for its filter
technology previously.41 Giving Google some- ‘Copyright reform: Restoring the facade of a
thing it has been lobbying for for years does not decrepit building’ (16.12.2015)
seem to be the best way of ‘getting it to pay’.
https://edri.org/copyright-reform-restor-
ing-the-facadeof-a-decrepit-building/
Claim 8: The proposal respects
European jurisprudence
Copyfail #2
The CJEU has twice ruled on the proactive
filtering of communications by Internet providers EDRi, ‘Human rights and privatised law enforce-
and hosting services (Scarlet/Sabam C-70/1042 ment’ (25.02.2014)
and Netlog/Sabam C-360-10 cases43), considering
it to be contrary to the fundamental rights of https://edri.org/wp-content/uploads/2014/02/
free enterprise and freedom of expression. The EDRi_HumanRights_and_PrivLaw_web.pdf
Commission’s efforts to overcome the stumbling
block these rulings constitute, leaving it up to ‘Copyright Law as a Tool for State Censorship of
companies to make the final decision about the Internet’ (3.12.2014)
whether or not to impose filters and accordingly
placing the measure outside the scope of the Eu- https://www.eff.org/deeplinks/2014/12/copy-
ropean Charter of Fundamental Rights, is a dirty right-law-tool-state-internet-censorship
trick that ought to outrage any serious jurist.

The dangers of the Commission’s proposal for Copyfail #3

a copyright directive, which could be voted
on early in 2019, are huge for Europe’s digital ‘Remuneration of authors and performers for
Digital Trends in Culture

ecosystem, for fundamental rights and for the use of their works and the fixations of their
European online companies. It is high time the performances’
political class stopped believing in these false
claims and rejected content filtering outright in http://www.ivir.nl/publicaties/download/1593
the copyright directive and in any other future
regulations that attempt to propose it.

58 CULTURAL AND INTELLECTUAL CREATION AND THE DIGITAL ENVIRONMENT · DIEGO NARANJO
‘Study on the conditions applicable to contracts ‘How copyright extension in sound recordings
relating to intellectual property in the European actually works’
Union’
https://www.youtube.com/watch?gl=G-
http://www.ivir.nl/publicaties/download/334 B&hl=en-GB&v=kijON_XODUk

‘Median earnings of professional authors fall ‘Proposed EU Copyright Term Extension Faces
below the minimum wage’ (20.04.2015) Vocal Opposition in Parliament’

https://www.theguardian.com/books/2015/ http://www.ip-watch.org/2009/01/27/
apr/20/earnings-authors-below-minimum-wage eu-copyright-term-extension-meets-vocal-oppo-
sition-in-parliament/
‘How much do musicians really make from
Spotify, iTunes and YouTube?’
Copyfail #5
https://www.theguardian.com/technology/2015/
apr/03/how-much-musicians-make-spotify- ‘Amazon Erases Orwell Books from Kindle’
itunes-youtube (17.07.2009)

http://www.nytimes.com/2009/07/18/technol-
Copyfail #4 ogy/companies/18amazon.html

‘The second enclosure movement and the DRM Frequently Asked Questions
construction of the public domain’
https://www.defectivebydesign.org/faq
https://law.duke.edu/pd/papers/boyle.pdf
Electronic Frontier Foundation: DRM
‘Legal Frameworks and Technological Protection
of Digital Content: Moving Forward Towards a https://www.eff.org/issues/drm
Best Practice Model’
‘Amazon wipes customer’s Kindle and deletes
http://papers.ssrn.com/sol3/papers.cfm?ab- account with no explanation’ (22.10.2012)
stract_id=908998
https://www.theguardian.com/money/2012/
‘The missing decades: the 20th century black oct/22/amazon-wipes-customers-kindle-de-
hole in Europeana’ letes-account

http://pro.europeana.eu/blogpost/the-missing- DRM.info
decades-the-20th-century-black-hole-in-europe-
ana http://drm.info/what-is-drm.en.html
Digital Trends in Culture

Open Rights Group, ‘Copyright extension’

https://wiki.openrightsgroup.org/wiki/Copy-
right_Extension

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 59

 Article 13 of the proposal 10 recommended digital resources
for a copyright directive
http://ipkitten.blogspot.co.uk/
‘Copyright reform: Document pool’
http://copybuzz.com/
https://edri.org/copyright-reform-docu-
ment-pool/ http://edri.org/

‘Deconstructing the Article 13 of the Copyright http://craphound.com/

proposal of the European Commission’
http://saveyourinternet.eu/
https://edri.org/files/copyright/copyright_pro-
posal_article13.pdf http://savecodeshare.eu/

‘Press statement and FAQ: Scarlet/Sabam Ruling https://www.eff.org/deeplinks/2018/06/

a vital victory for Internet freedoms’ (24.11.2011) internet-luminaries-ring-alarm-eu-copyright-fil-
tering-proposal
https://edri.org/scarlet_sabam_win/
http://davidbravo.es/
‘SABAM vs Netlog – another important ruling for
fundamental rights’ (16.02.2012) http://wiki.lessig.org/Against_perpetual_copy-
right
https://edri.org/sabam_netlog_win/
http://juliareda.eu/
‘Why is the EU Commission pushing for illegal
copyright filtering?’
10 recommended Twitter accounts
https://youtu.be/zROqxBFqe_k
@doctorow
‘There are some things money can’t buy’
@dbravo
http://copybuzz.com/analysis/things-money-
cant-buy/ @_C4C_

@glynmoody

@eLAWnora

@copyfighters

@mmasnick
Digital Trends in Culture

@PDLI_

@bufetalmeida

@X_net_

60 CULTURAL AND INTELLECTUAL CREATION AND THE DIGITAL ENVIRONMENT · DIEGO NARANJO
 14 He tells of this in a tweet: https://
Notes
twitter.com/jrhodespianist/sta-
tus/1036929244654460928?lang=en
1 See http://copyrightexceptions.eu/#Art.%205.1
15 https://www.techdirt.com/arti-
2 https://eur-lex.europa.eu/legal-content/ES/TXT/
cles/20090428/1738424686.shtml00
PDF/?uri=CELEX:32001L0029&from=EN
16 https://www.techdirt.com/arti-
3 It is worth noting how copyright, which is a
cles/20100302/0354498358.shtml
limitation (an exception) to freedom of expression,
is transformed as if by Orwellian art into the norm,
17 See https://www.theguardian.com/technol-
and the exceptions to these restrictions are called ogy/2015/apr/03/how-much-musicians-make-spoti-
‘exceptions and limitations’ (exceptions to the fy-itunes-youtube
exceptions, that is). 18 http://www.wipo.int/treaties/en/text.jsp?-
4 https://edri.org/edrigramnumber9-22copy- file_id=283698
right-combinatronics/ 19 https://www.eff.org/issues/trips
5 See Corporate Europe Observatory (CEO), 20 http://www.authorama.com/free-culture-18.html
Copyright Directive: how competing big business 21 https://www.theguardian.com/technology/2008/
lobbies drowned out critical voices, 2018. Available dec/06/cory-doctorow
at https://corporateeurope.org/power-lob-
22 http://papers.ssrn.com/sol3/papers.cfm?ab-
bies/2018/12/copyright-directive-how-compet-
stract_id=2185402
ing-big-business-lobbies-drowned-out-critical
23 https://www.eff.org/document/letter-tpp-copy-
6 https://edri.org/copyright-exceptions-and-limita-
right-term-extension-proposals
tions/
24 http://judiciary.house.gov/_files/hearings/print-
7 https://www.communia-association.
ers/113th/113-20_80067.pdf
org/2016/05/20/the-copyright-joke/
25 http://craphound.com/content/Cory_Doc-
8 http://the1709blog.blogspot.be/2015/11/one-year-
torow_-_Content.pdf
on-private-copying-exception.html
26 https://www.eff.org/deeplinks/2018/06/
9 https://medium.com/copyright-untangled/5-outra-
internet-luminaries-ring-alarm-eu-copyright-filter-
geous-things-educators-can-t-do-because-of-copy-
ing-proposal
right-ac447dcc6e09#.yeuy4d6bg
27 https://www.ohchr.org/Documents/Issues/Opin-
10 http://oerpolicy.eu/oer-and-copyright-mapping-
ion/Legislation/OL-OTH-41-2018.pdf
exempted-uses-in-europe/
28 https://www.liberties.eu/en/news/delete-arti-
11 https://edri.org/wp-content/uploads/2014/02/
cle-thirteen-open-letter/13194
EDRi_HumanRights_and_PrivLaw_web.pdf
29 https://savecodeshare.eu/
12 https://www.eff.org/deeplinks/2014/12/copy-
right-law-tool-state-internet-censorship 30 https://papers.ssrn.com/sol3/papers.cfm?ab-
stract_id=3054967
13 https://www.techdirt.com/arti-
cles/20140903/06114628400/premier-league-uses- 31 https://edri.org/scarlet_sabam_win/
copyright-to-pull-down-youtube-video-professor- 32 https://edri.org/sabam_netlog_win/
advocating-stronger-copyright-premier-league.
Digital Trends in Culture

33 https://edri.org/scarlet_sabam_win/
shtml

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 61

 34 https://edri.org/sabam_netlog_win/ 39 https://youtu.be/zROqxBFqe_k
35 https://edri.org/copyright-directive-newspa- 40 http://copybuzz.com/analysis/things-money-
pers-become-their-own-censors cant-buy/
36 http://www.ifpi.org/news/IFPI-GLOBAL-MU- 41 https://twitter.com/ansip_eu/sta-
SIC-REPORT-2017 tus/733344754327556098?lang=nl
37 http://www.ifpi.org/news/IFPI-GLOBAL-MU- 42 https://edri.org/scarlet_sabam_win/
SIC-REPORT-2018 43 https://edri.org/sabam_netlog_win/
38 http://www.authorsocieties.eu/mediar-
oom/234/32/Transfer-of-value-explained-in-new-
GESAC-brochure
Digital Trends in Culture

62 CULTURAL AND INTELLECTUAL CREATION AND THE DIGITAL ENVIRONMENT · DIEGO NARANJO
CONSUMER TRENDS IN
INFORMATION AND THE
MEDIA IN THE CULTURE
INDUSTRY: FAKE NEWS AND
THE AUDIENCE

Javier Lorenzo Rodríguez · @javilor

Javier Lorenzo Rodríguez holds a European PhD in Political Science from Universidad Carlos III de
Madrid, and an MA in Information Society and New Technologies. He is an Assistant Professor
of Political Science in the Department of Social Sciences at Universidad Carlos III de Madrid.
His research agenda has been focused on the impact of the Information and Communication
Technologies on political and social behavior, especially in two directions: On one hand, the political
elites’ online behavior, mainly on Social Media, applying computational methods. On the other
hand, he analyses the effects of these ICT on the social behavior of youth. Both research lines
Digital Trends in Culture

have been developed in a successful research activity funded by competitive grants at international
level (H2020), National Research Programmes or funded by Public Authorities such as INJUVE,
Ministry of Domestic Affairs, Ministry of Labour, etc. The results of his research can be easily found
in top international journals (European Union Politics), well kwown publishers (Routledge, Peter
Lang) and awards (Fundación Alternativas). Moreover, he has been research fellow at the Social
Media and Political Participation Lab at New York University, in which he is currently involved.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 63

 1. Introduction tensions in countries such as Germany and Austria
has set off alarm bells in the European parliament
The term fake news gained notoriety during the with regard to the elections in May 2019.9.
US presidential elections in 2016 when disinfor-
mation began to surface about the Democrats’ Within our own borders, the so-called process
presidential candidate Hillary Clinton, particu- in Catalonia combines all the prototypes of
larly on Facebook. The US news site and global what is understood by fake news: on the one
media company Buzzfeed discovered that most hand, the interference of 4,883 bots that took
of these news items came from a small town over 13% of the debate prior to the 1-O (the 1
called Veles in Macedonia generated there by a October referendum) on Twitter where more
group of adolescents: ‘The Americans love our than 38,000 user accounts spread messages
news and we make money out of them. What about Catalonia, launched by RT (the first
does it matter if it is true or false?’ said one Russian English-language news channel) in
member of the ‘news’ team during an interview Spanish10 and Sputnik,11 two media sites clearly
with the BBC.1. dependent on the Russian government.12 On
the other hand, as an example of the manipula-
Once he was declared president, Donald Trump tion of images and the falsification of informa-
accused a CNN reporter of representing a media tion propagated by an individual account, we
outlet that generated fake news,2 lending the have the case of the MEP from PDeCat Ramon
term a new purely subjective dimension which Tremosa (@ramontremosa), the author of fake
brands all the information that you don’t like or news who posted a false cover of Time maga-
digresses from what you think as fake. zine, using images from protests in Hong Kong
to simulate protests in Catalonia in support of
It was from these beginnings that the Cambridge Catalonian independence.13.
Analytic controversy emerged, obliging Mark
Zukerberg to appear before the US Congress; From this brief summary, we can deduce that
also taking the world by storm was the Russian the germ of fake information can be found in
bots attack during Trump’s electoral campaign polarised political contexts in which some of
and other scenarios that are probably just the the parties involved – candidates, social move-
start. ments, governments and businesses – generate
intentionally false information with the aim of
The phenomenon has gone global fast, par- distorting reality, undermining the adversary or
ticularly in places where there have been very discrediting anyone with a different opinion.
polarised political situations, such as the contro-
versial elections in Nigeria3 and India,4 producing However, it would be an error to assume fake
fatalities, and, more recently, the election of news was confined to information on politics:
Bolsonaro as president of Brazil,5 which ushered Internet and social media are inundated with
in the instant messenger service (WhatsApp) as hoaxes regarding terrorist attacks, remedies and
the propagator of fake news. magic therapies, scams and products whose
success on the market is dependent on the
In the context of Europe, the UK Brexit refer- spread of fake news, employing identical mech-
Digital Trends in Culture

endum and the debate over leaving the EU has anisms to those in the political sphere.14 So it is
triggered a constant flow of fake news or news not only a political problem related to the media,
that is intentionally biased.6. technology and globalisation, it is also a social
phenomenon that takes its cue from a series of
Moreover, the interference of Russia in the consumer habits regarding information, which
elections in France7 and Italy8 and the increased affects particularly vulnerable social groups.

64 CONSUMER TRENDS IN INFORMATION AND THE MEDIA IN THE CULTURE INDUSTRY · JAVIER LORENZO
In a bid to better understand the challenge 2. What does the term
democracies face with the spread of fake news, ‘fake news’ refer to?
this article will try first to clarify what we mean
by fake news, how it is generated and in what The first challenge is to nail down the exact
way it is spread. It will then compare the interna- meaning of the term. In the Collins dictionary,
tional landscape in this respect with that of it is described as ‘false, often sensational infor-
Spain, focusing particularly on the social angle mation disseminated under the guise of news
with accompanying explanations. Finally, it will reporting’. But what exactly are we calling ‘fake’?
summarise several solutions that are currently Is this information that has not been verified or
being discussed or applied, and make recommen- balanced?
dations.
According to the European Commission,
‘Disinformation is defined as information that
can be found to be false or misleading, that
is created, presented and spread to make a
profit or to deliberately mislead the population
and which can cause public harm.’ (European
Commission 2018)

The concept of disinformation that the Com-

mission mentions has been defined in commu-
nication studies and political science as any
information that is deviant or biased, whether in
format or content, aimed at distracting attention
away from the truth or feeding conspiracy
theories, rumours, hoaxes, falsehoods, etc.
Traditionally, the sensationalist press, including
the tabloids, partisan information or government
propaganda has been described in this way. Sa-
tirical or ironical information could also fall into
this category, although it is to be assumed that
there is no intent or apparent profit to be made
from it while it could have similar consequences.
The fact is that the phenomenon of fake infor-
mation or disinformation is not something new.
The words hoax, libel and claptrap have been in
our dictionaries for a long time and we shouldn’t
forget that not long ago, the word of the year
was post-truth.15.

The reason the concept of fake news is so suc-

Digital Trends in Culture

cessful and has had such a global impact lies in

our universal access to Internet, the technologi-
cal resources of a digital society and the capacity
for spreading information on social media; all
of this gives disinformation a new dimension
as well as new connotations. ‘Whether it is a

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 65

 sponsored post, an advert, a meme, a bot on empathising with their feelings using direct and
Twitter or a rumour, people simply use the term fresh language. Religion, immigration, politics,
fake news for any information that they don’t catastrophes and extraordinary facts all make
like’, says Claire Wardle.16 The factor that differ- ideal material.
entiates these phenomena from what happens
offline is their scope – the latter being limited The use of these techniques is corroborated
due to the need for special resources to achieve by the authors of fake news themselves: ‘We
visibility. are constantly trying to connect with feelings
we believe that people already have or want to
So beyond the labels, we can conclude that have.’19
fake news refers to a combination of intention-
ally false, manipulated or biased information These communication tactics have their roots in
that is generated for profit or to undermine what is referred to by psychologists as ‘confirma-
something or someone for the benefit of a tion bias’, which is the tendency to take on board
particular group. information that confirms beliefs as authentic
and reject information which contradicts previ-
ously held beliefs. ‘It’s behaviour that also ex-
3. How does it work? The plains why we find it easier to spot weaknesses
composition and spread of in another’s argument while we are incapable
fake news online and offline; of seeing the same weaknesses in our own
clearly connected but using arguments’ (Mercier 2019). Moreover, we tend to
different strategies maintain our original belief in spite of coming up
against powerful facts that contradict it, among
The difficulty of defining exactly what we mean other things because maintaining it requires less
by fake news stems, among other things, from effort, exactly the same as fake news.
the multiple forms it assumes and the strategies
it uses, which are limited only by the creativity Another explanation sociologists provide for the
and the technological resources of its authors. success of this kind of disinformation is the quest
Hence, we find websites that deliberately imi- for social acceptance, by which they mean that
tate a real newspaper (Digital Sevilla),17 govern- we show ourselves to be most likely to accept
ment propaganda websites (Russia Television) or false information if that allows us to improve our
those which walk a fine line between satire and self image (Guenther and Alicke, 2008).
simple disinformation (CasoAislado),18 to cite
just a few examples. Offline, these techniques are often used by the
sensationalist press and the tabloids. However,
In any case, we can identify some common the big guns in the news industry, particularly
elements, both in form and content. Where the the press, play the role of gatekeepers, thanks to
format is concerned, both the domain and the editors and producers who act as filters before a
appearance are fundamental when it comes to piece of news is released. Another role is that of
credibility. The structure of the information is watchdog, by which we mean information
also vital: according to online reading habits, vigilantes and critics of material that departs
Digital Trends in Culture

the average reader stops after the first two from the truth, basically that which is generated
paragraphs, so only the headline and the start of by government and partisan media. However,
the news story needs to look and feel legitimate. none of these filters act with the same degree of
As far as the content is concerned, the key lies efficiency in the digital world where any individ-
in the use of simple cognitive structures, making ual with an Internet connection and an online
connections with an individual’s experience and profile can both receive and generate informa-

66 CONSUMER TRENDS IN INFORMATION AND THE MEDIA IN THE CULTURE INDUSTRY · JAVIER LORENZO
tion in the form of amateur journalism, with few characterising elements, such as the structure
controls to ensure its veracity. If we add to this of the network, its reach, the behaviour of the
the immediacy of publication and its ability to go algorithms and the technological resources that
viral within a short space of time, the possibility multiply the effects of these.
of filtering the information for the truth be-
comes even more remote. Whether a message goes viral on platforms
such as Facebook or Twitter depends on the
makeup of the propagator’s contact network. If
user A has two million followers, as do celeb-
rities for example, a tweet can spread quickly
to 10,000 people but with a superficial effect.
On the other hand, if user B posts a tweet on
his network of 20 followers, and each of these
followers retweets it on their network which
also has 20 followers and so on, they will reach
10,000 followers more consistently than user
A. The reach of user B’s tweet goes deeper that
that of A, with a chain of retweets, enabling it
Moreover, the limited space afforded by social go viral in a way that the tweet of user A never
media for content means a more direct type of can (Vosoughi et al., 2018). In other words,
language, lack of context and the omission of it all depends on the position the generator
detailed explanations. It is more about getting a has among his network of contacts and the
‘like’ and the polarisation for or against what has chances of this information being replicated
been posted, leaving little space for reflection. If by a third party. Undoubtedly, the bigger the
we combine the characteristics of social media network, the more likely the information is to
with the aforementioned false information, they be propagated.
form a perfect and dangerous duo (Guess, Nyhan
and Reifler, 2018). This logic is what these platforms use as the
foundation for their business, which is none
Proof of this comes in the shape of a study other than to generate money from publicity,
by Vosoughi on the spread of fake news on based on two main principles, one of which is to
Twitter20 (Vosoughi, Roy and Aral, 2018). A piece attract the largest number of users possible who
of fake news reaches 1,500 users six times as should spend as much time as possible on their
fast as a conventional news item, beating real platforms. The bigger the network, the more
news in all areas, be it business, entertainment, clients and the more attractive it is to publicity
culture, science, technology or health, which companies. Given greater exposure, the more
makes it even more useful in the field of politics. probable it is that said user sees the publicity
A tweet regarding real news is not retweeted in and clicks on it.
general more than 10 times, while a piece of fake
news can reach 19 retweets 10 times as fast as The other principle and main added value for
a real news item gets 10 retweets. In an analysis these platforms is the availability of personal in-
Digital Trends in Culture

of feelings, they discovered that the tweets formation on the users whose profile is on these
containing fake news tend to involve terms platforms, including their age, gender, profession
associated with surprise or disgust while those and preferences as well as their habits con-
related to real information are linked to sadness cerning information and consumption – which
or trust. In order to understand the logic of how profiles they follow, what products they look for,
this works it makes sense to identify some of the their voting preferences etc. This information

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 67

 is invaluable to publicity companies that seek two or three will bother to try to confirm the
micro-segmentation to increase the impact of information they have received because their
their investment by targeting their messages at opinion is based on what he and the others
users more likely to consume their products. believe. They also consider fake news to be
something they don’t agree with.
Behind this logic lie the famous algorithms that
act as the mechanism’s gears. Regarding the Consequently, networks that are closed and
makeup of our social networks and our habits connected to profiles closely attuned to the
when it comes to seeking information, our user increase the probability of consuming
activity is traceable and analysed in order to information that only reinforces preferences and
send us the information that interests us most so makes it more likely for fake news to be taken
through the use of cookies, and on the walls of on board.
our social media accounts messages appear from
other accounts that seem to most frequently Each platform has a different structure and use
interest us. and consequently the propagation of false news
follows different patterns at different speeds.
Obviously, this mechanism brings with it both The latest studies agree that Facebook, tends
desirable and undesirable effects. On the one to favour echo-chambers – networks formed by
hand, the refinement of the algorithms means users that think similarly22 – (Vraga and Tully,
that the user sees increasingly more content 2018), increasing the probability of the propaga-
from the same sources, obscuring other inter- tion of information related to conspiracy theo-
ests. On the other hand, the structure of the ries by 12% (Mocanu, Rossi, Zhang, Karsai and
network of contacts that each user follows on Quattrociocchi, 201523). Meanwhile, Twitter plays
his social media sites will reinforce further his a more polarising role than traditional media,
exposure to a particular type of information. The but also increases the probability of a user being
theory of the echo chambers (Sunstein, 2007) indirectly exposed to information outside his
indicates that the individual tends to build his network of contacts (Barberá, 2016; Guess, 2017).
network based on principles of ideological affin-
ity, emotional links and common interests; what Given that the structure and number of users
they read, see or because they are interested in that make up the network provide the basis for
information that is close to the person or their the spread of information, one way of altering
environment. In this way, the more heteroge- the ecosystem in order to make a message go vi-
neous the network is, the bigger the probability ral is to create accounts or false users to share a
to being exposed to more varied information, post. This explains the existence of the so-called
whereas the more uniform and closed it is, the trolls or automated accounts, such as bots.
more chance there will be of the individual
receiving information that only reinforces his By trolls, we mean users on social media who are
own opinions (cognitive reinforcement theory). basically human, either paid or voluntary, whose
activity is limited to criticising, insulting and
The structure of the network is closely related to bullying, either collectively or individually, using
the risk of exposure to and the consumption of all the technical and psychological resources at
Digital Trends in Culture

false information. The opinion of one individual their disposal.

can be groundless but if he finds someone else
who holds the same opinion and a third party This kind of behaviour ties in with the current
shares that point of view, suddenly their opinion media landscape, fed by a certain social collusion
gains weight and it is more unlikely ‘that we that is a long way from condemning it (Phillips
should all be wrong’.21 Neither individual one nor and Milner, 2017). What is peculiar to the tabloid

68 CONSUMER TRENDS IN INFORMATION AND THE MEDIA IN THE CULTURE INDUSTRY · JAVIER LORENZO
press offline has been applied to all areas of from a particular subject or manipulating public
news on social media. The conversations about opinion in their interest. Although some pages
information related to climate change or immi- and mechanisms have been appearing which
gration or the polling on any reality are ideal can detect this kind of fake information, the
areas to target, either to draw attention away level of sophistication is increasing all the time,
from the truth or to make fake news go viral. which makes it increasingly hard to detect. In
Celebrities, political parties and journalists have the case of the regional elections in Catalonia,
all been victims of these trolls.24 for example, they were able to generate 35%
of the traffic of the conversation related to the
campaign. In fact, one way of spotting a piece of
disinformation is by checking if a post acquires
a disproportionate popularity on Facebook or
Twitter despite the fact that the origin of the
information comes from a dubious source.25

But the phenomenon cannot be blamed on

social media alone. The director of Buzzfeed,
Craig Silverman, offers this explanation:

A fake news website publishes a hoax; as that gets

attention on social media, another site picks it up
and writes a story as if it were true without linking
the new item to its source. This triggers a chain
reaction that is reproduced inexorably until a jour-
nalist from an important media establishment that
has contrasting credibility sees it and can write
something fast about it, as many journalists try to
write the biggest number of stories possible to get
traffic to their site and attract public opinion. The
incentive is to produce more and check less.

In the same vein, Anthony Adornato adds, ‘It’s

pretty common for the media to trust more in
the content shared by other colleagues but there
is not a policy of how to verify and authenticate
information in every editorial’.26

Effectively, both traditional media and social

media are linked due to the fact that each
individual follows anonymous accounts as much
Bots, or automated accounts, meanwhile, are as they follow media sources or benchmark jour-
Digital Trends in Culture

profiles that are artificially created which, based nalists on social media. So the problem stems
on a series of search algorithms, send or repeat from how heterogeneous or homogeneous the
information automatically and continuously, network of each user is, regarding the consump-
taking over discussions on social media and tion of information, something that is closely
turning the desired fake news into a trending related to social, economic and educational
topic, thereby managing to distract attention background.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 69

 Those in the higher educational, social and this is not the only area in which the social and
economic bracket tend to have a more heteroge- economic level makes a difference. Those with a
neous network, to listen to different voices and higher level of education prefer the press (either
to consult more sources of information, echoing paper or digital) to the television as their main
what happens in the offline world (Guess and source of information and use social media in
Coppock, 2018). a different way. Similarly, this segment of the
population tends to show greater mistrust in the
media with regard to their capacity to filter out
4. The impact of fake news disinformation, although they show a greater
tolerance for satire and critical reviews. This
In spite of the ‘noise’ generated by this phe- behaviour is linked to the fact that this seg-
nomenon and the growing concern among the ment of the population considers itself better
entities and people involved, there is scarcely qualified to distinguish fake news from satire or
any data on the propagation of fake news or its harsh criticism.
effect on public opinion. Offering a comparative
view, the Reuters Digital News Report27 from The same report indicates that, although the
2018 highlights some evidence on its global concern for fake news is high, recognising expo-
impact, indicating differences between countries sure to this type of news is generally low (26%)
with regard to access and exposure to, and with several exceptions. In the US, 31% believe
concern about, fake news. themselves to be exposed to false information,
but the figures are more alarming in Mediterra-
In general terms, the survey found that average nean countries such as Greece (44%) and Turkey
trust in information from the media is around (49%) and Eastern Europe in countries such as
50%, similar to previous years, dropping to 34% Hungary (42%) or Romania (38%). In contrast,
with regard to news found through searches the UK (15%), Germany (9%), Denmark (9%) and
and falling further to 23% where social media is Holland (10%) present the lowest rates of expo-
concerned. sure to false information.

Fifty-four percent of those polled express In light of the data, there are two explanations
concern about the proliferation of fake news, for the variations in the perceptions of, concerns
with far higher percentages in Brazil (85%), Spain about and exposure to fake news in those polled
(69%) and the US (64%) for political information. in the cited countries. In the first place, the
The main culprits of the propagation of fake different media markets have a different relation-
news are thought by those surveyed to be media ship with society and also with the authorities,
empires (75%) and social media platforms (71%), depending on the political, economic and social
but their concern revolves more around the risk model of each country (Mazzoleni, 2012).
of consuming bad journalism and information
that is one-sided than news that is entirely This could explain the greater trust in the media
invented. in countries in central and northern Europe
compared with the Mediterranean countries and
The desire for public intervention to tackle the new democracies such as Hungary or Romania.
Digital Trends in Culture

problem is around 60% in Europe (72% in Spain)

and only 41% in the US. The preference for Secondly, those countries which have been
more rigorous controls within the companies subject to fake news phenomena in extremely
themselves and less interference from the polarised political scenarios or which are subject
authorities is even greater among the more to politics that uses fake news to undermine
enlightened sections of the population. But those areas of the media that criticise their

70 CONSUMER TRENDS IN INFORMATION AND THE MEDIA IN THE CULTURE INDUSTRY · JAVIER LORENZO
actions tend to perceive a greater risk and Similar behaviour can be found among different
declare themselves to have felt exposed with social and economic levels, although in this
greater frequency. respect, those with more resources and a higher
level of education continue to consume more
To summarise, the majority of those polled con- magazines and press while those with fewer
sider that the problem of misleading information resources have a strong preference for the tele-
stems from online sources. However, the almost vision, with a sharp drop in access to Internet;
imperceptible difference in the answers of those while 92% of those with more resources use the
who only get their news offline and those who Internet, the figure drops to 39% among those
get it exclusively online is noteworthy. with fewer resources. (AIMC, 2018).

Although the main traditional news sources are

5. In Spain still the most searched for, consumed and highly
respected, there are two online-only news sites
In Spain, the main source of information is that rival their standing: eldiario.es and El Confi-
online, including social media, accounting for dencial. Trust in the news in general has fallen by
85%, compared to the television which is 76%. seven per cent with respect to last year and now
The use of platforms in order to find information stands at 44%, rising slightly with regard to a
increased from 28% in 2013 to 60% in 2018. If we person’s media sources of choice (48%) and
look at the consumption of information by age dipping to 38% in news found through searches
bracket, in accordance with the General Media and to 27% in news on social media. These levels
Study (EGM), Internet shows up as the main of trust are comparable to those found in coun-
media source in all age brackets, except for those tries such as the UK, Italy, France and Belgium,
55 and over, who prefer television, though in the which show more trust than Eastern European
youngest age bracket (14–34), as the age declines countries but less than Nordic countries.
so does the consumption of traditional online
and offline media. This indicates that the press
and even the television are not attractive to
upcoming generations.

However, unlike other countries, Facebook is still

the main source of information with more than
19 million visitors in the last month, followed
by WhatsApp, which has even greater usage
penetration.
Digital Trends in Culture

YouTube (25 million visitors) and Twitter (four

million visitors, the fifth place most frequented
social media site on the Internet) have increased
their figures as sources of information by 2%

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 71

 and 4% respectively, compared to last year. across the social strata. While age is still the
(Newman, Levy and Nielsen, 2018).28 determining factor concerning the abandonment
of traditional media and access to information
In reference to the use of this information, more that relies upon the Internet and social media,
than half those polled (53%) share news on social education and social economic factors play an
media and email (more than anywhere else in even greater role, making it more likely for a
Europe) while 32% leave comments on digital citizen with fewer resources and more vulnera-
media or social networks. According to the latest bility to be exposed to fake news.
figures from the Spanish Statistics Institute (May,
2018), 85% of those surveyed said they had not If we look at charts showing use of the Internet
had problems with content posted on social and social media by age, social and economic
media by others and 75% said they did not regret status and ideology, we can see notable inequal-
any content they had posted on these platforms ities. In the catalogue of uses in the Spanish
themselves. Statistics Institute’s latest barometer in 2018, it
is clear that young people are fully immersed in
In spite of finding ourselves at the cutting edge the digital world, being the main users of the
when it comes to access and use of the Internet majority of the services, particularly those that
and social media, these are not evenly spread do not require payment – and above all in the
Digital Trends in Culture

72 CONSUMER TRENDS IN INFORMATION AND THE MEDIA IN THE CULTURE INDUSTRY · JAVIER LORENZO
youngest age group; and it is worth noting that spectrum, there is poorer and less access among
those in the youngest age bracket are most those further to the right. This is a worrying
active and numerous in the use of social media. piece of data, given that we know from earlier
studies that in polarised scenarios, voters who
But when separating the data according to social are aligned with the extremes on the ideological
and economic factors, the heat map is clearly spectrum tend to be exposed more frequently to
green among the wealthier while red is predo­ disinformation, particularly those sympathising
minant among those with fewer resources, but with the extreme right.
also among the new and old middle classes. This
indicates a worrying technological imbalance, This review of the access and use of the Internet
given that only those with higher education and corroborates Belén Barreiro’s classification of
more resources use the Internet extensively, pro- wealthy digitals, impoverished digitals, rescued
ducing a worrying bias with regard to access to analogues and analogues that have not been res-
information and to the digital society in general. cued, depicting a social division that exacerbates
the vulnerability of those who not only have a
Finally, with regard to ideology, while there is lower level of education and fewer resources,
a more intense use of the Internet and social but who are also more vulnerable in terms of
media by those on the left of the ideological technology (Barreiro, 2017).

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AC/E DIGITAL CULTURE ANNUAL REPORT 2019 73

 The reaction to the economic crisis leaves us 6. What is being done to
in no doubt: ‘…although this reaction is not tackle the phenomenon?
the same across the board. The impoverished
analogues react with resignation and put up with As has become obvious in this article, all the
the pain in contrast to the digitally impoverished players involved have their share of responsibil-
who react by going on social media and using it ity, which is why we will briefly go into different
almost as a form of therapy. And they are look- initiatives that are being adopted from the angle
ing for ways to continue consuming at low cost. of both demand and supply.
If the person is digital, it [the situation] is easier
to cope with.’
6.1. European Union legal framework
This behaviour extends to critical capacity and
online behaviour, as digitals tend to contrast The European Union has taken the initiative to
more and be more critical about what they read spark debate and establish a common front with
while the analogues, who only consume televi- regard to the spread of fake news, focusing on
sion, are not (Barreiro, 2017). both parliamentary debate and the development
of strategic action by the European Commis-
To summarise, the propagation of fake news has sion. On a national level, discounting Germany
a strategic link with social media and Internet, which has passed a very restrictive law against
but its perfect target can be found among the the posting of unverified content on platforms
most underprivileged and the analogues. such as Google, YouTube and Facebook, and the
Digital Trends in Culture

74 CONSUMER TRENDS IN INFORMATION AND THE MEDIA IN THE CULTURE INDUSTRY · JAVIER LORENZO
publishing of the plan against misleading The steps taken are:
information from the Spanish Government
– initially at least in conjunction with the • A public survey and euro barometer.
French Government, there have not been any
major developments. • A conference with all the stakeholders
involved.

• High Level Group of experts who have

broadcast information.

• A code of good practice.

• A roadmap for online platforms and

agencies to implement the code of good
practice.

• A firm commitment from the president of

the Commission and its vice president.

In the EU’s parliamentary debate, statements The commission of experts are proposing short-
against hate speech were combined with state- and long-term measures that are linked and
ments on the defence of freedoms and European mutually reinforce each other, as follows:
values. Taking a more practical approach, the
European Commission has embarked on a • Improve the transparency of news online,
series of policies and public initiatives to tackle making it adequate and compatible with
the phenomenon of fake news on the digital personal data protection regarding systems
market. To do this, it has involved stakeholders that allow its circulation online.
and companies in the sector as well as a group
of experts. The first move has been to develop • Promote training and education the media
a code of good practice, signed by technology to counter misleading information and
companies such as Google and Facebook, as well help users to navigate through the digital
as the majority of press associations and national environment.
communication regulators in the sector.
• Develop tools to empower users and
This plan is based on the following: journalists, allowing them to identify and
stop malicious news, and encouraging them
• Four principles guide the action:29 to report such activity using technological
tools.
• Improve transparency regarding the way
information is produced or sponsored; • Safeguard the diversity and sustainability of
the European media ecosystems.
Digital Trends in Culture

• Diversity of information;
• Promote on-going research into the impact
• Credibility of information; of disinformation in Europe in order to
evaluate the impact of new measures ad-
• Inclusive solutions with broad stakeholder opted by the different players involved, and
involvement. constantly adjust the necessary responses.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 75

 6.2. The media detecting false information or information that
is biased such as PolitiFact itself, Leadstories,
One of the first measures that have been carried Factcheck, Malditobulo etc.
out regarding the media are the so-called fact
checks. The famous TV programme on La Sexta Unfortunately, it has not been shown to be a
(Spanish TV channel) called El Objectivo – The valid tool: it requires an effort from the user
Aim – was one of the first ‘fact-checks’ in Spain, who must go to another source to verify the
designed by a US pioneer, PolitiFact (Bill Adair), information; the information that allows the user
which contrasts the veracity of the declarations to verify the original information is not always
of political representatives, a model imitated by available and once the user is convinced of the
other prestigious media outlets as a sign of qual- original information’s veracity, it becomes more
ity journalism.30 Using certain algorithms, other difficult to make them disbelieve it.
websites have been created that are capable of
Digital Trends in Culture

76 CONSUMER TRENDS IN INFORMATION AND THE MEDIA IN THE CULTURE INDUSTRY · JAVIER LORENZO
Another way of tackling misleading information 6.4. Civil Society
is to create solid and attractive narratives which
incorporate correct information and which focus From the point of view of demand, the best
on facts that go beyond simply exploding the tool is to increase awareness of how the rules
myth of other information, a technique known of the game operate and encourage users to
as de-biasing. This kind of information is closely consider what they are consuming with a critical
linked to what is known as data journalism and eye. That would lead to a militant awareness,
with phenomena such as Politibot, which, via the allowing us to reflect on what each of us says
Telegram channel, links information with data to and shares and its ethical consequences: putting
expose hoaxes and biased information. information in context, verifying that what I am
sharing or expressing on my social media sites
is in line with my preferences and ethical con-
6.3. Platforms victions and calculating the undesirable effects.
The digital footprint, which is the trace of our
Mark Zuckerberg declared in his hearing before activities on these platforms, is registered and it
the US Congress that his main aim for 2018 was could come back at us when we least expect it
to clean up the abuse and bullying on his plat- (Phillips and Milner, 2017).
form, and also tackle fake news. That same year,
he modified the algorithms in order to increase Other recommendations involve asking ourselves
the visibility of posts from friends and families what we don’t know about the information we
and groups which would take precedence over are sharing. How and where has the information
paid posts.31 However, these controls do not come from in the first place? What has happened
correct all the errors. According to Full Fact, to the people involved in it? Have they given
Facebook users can report content they consider their consent at any point? In this case, the germ
to be false and the team will check if the news is of misleading information and manipulation is
true, false, a mixture of both, adjusted content found in what we don’t see, and in what we
or otherwise. But they can only check images, don’t know (Philips and Milner).
videos and articles reported by users. Other
kinds of material, such as satire and opinion,
falls beyond their reach. If something appears to Conclusions
be false, this will appear at the end of the news
item, but the item itself will not be eliminated. The data included in this article indicates that
the public feels secure to an extent when it
In the case of Twitter, the structure of the user’s comes to identifying fake news and trust their
network can be analysed using sites such as ability to filter out this kind of information.
Otherside.site, which allows you to see the wall This confidence is greater in those with a
of the other user and compare it to your own. higher level of education. However, all those
For Facebook users, Politecho.org is an extension polled recognise that they have difficulty
that can be installed in the search engine and distinguishing information that has not been
which shows up the political bias of your friends checked or whose bias is the product of poor
on Facebook. journalism. This difficulty is greater among the
Digital Trends in Culture

less educated in society. It is the subtle differ-

Another possibility would be to combat the power ence between them that determines the risks
of the algorithms with other algorithms, fighting of fake news and, particularly, its effects on the
computer fire with computer fire, as it were. underprivileged and less technologically literate
Google has already started to design a reliability segments of society.
algorithm to classify the results of searches.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 77

 If the ‘noise’ of fake news is still greater than its Notes
direct effects, it is the indirect consequences
that inspire the biggest fear; the capacity to 1 https://www.bbc.co.uk/news/resources/idt-sh/
generate mistrust in the system, its institutions the_godfather_of_fake_news
and its representatives that, in the medium and 2 It is worth noting that several days earlier the
long term, could critically erode the pillars of White House had refused to accredit this and
the political systems, by which we mean our other media outlets denying them access to their
democracies. Brooke Binkowski from Snopes32 press conferences. CNN, https://www.cnbc.
recognises that while individual fake news stories com/2018/11/13/cnn-sues-president-trump-and-
may not be dangerous their potential to cause white-house-for-banning-reporter-jim-acosta.html
damage becomes more powerful over time and (Access 25 January 2019, 20.05).
when considered in the aggregate.33
3 https://www.bbc.co.uk/news/resources/idt-sh/
nigeria_fake_news
This is why societies that have widespread
access to Internet and extensive use of social 4 In India, in 2018 alone, fake news prompted 29
media – despite its unequal distribution – and deaths, related to the kidnapping of children
whose media, political parties and institutions (https://www.bbc.com/news/av/stories-46152427/
are lacking a certain level of trust have the the-digital-epidemic-killing-indians).
perfect conditions for a fake news attack. 5 https://elpais.com/internacional/2018/09/26/
actualidad/1537997311_859341.html
A more robust society, with solid ethical princi- 6 http://www.politics.co.uk/blogs/2018/10/29/new-
ples, would be better at putting the brakes on or
study-shows-brexit-is-drenched-in-fake-news
eliminating this kind of behaviour, stopping hate
speech and disinformation. The online ethics are
7 https://www.politico.eu/article/france-elec-
to be found in the political, technological and tion-2017-russia-hacked-cyberattacks/
historical contexts of communication, taking 8 https://www.buzzfeed.com/albertonardelli/
into account the repercussions of daily online italys-most-popular-political-party-is-leading-eu-
behaviour and avoiding harming third parties. rope-in-fak?utm_term=.vuPNjk4Ao#.kbY26Nwd7
9 https://www.reuters.com/article/us-eu-inter-
Having principles is not about keeping quiet but net-fakenews/plan-to-combat-fake-news-pro-
about making oneself heard, assuming individual posed-as-eu-elections-approach-idUSKBN1O41LM
responsibility for our actions concerning what
10 https://actualidad.rt.com/
we say, share and do in our everyday lives. The
extremists need to receive this message. They 11 https://sputniknews.com/
manage to make people believe in their mes- 12 https://elpais.com/politica/2017/12/04/actuali-
sages and in their importance when non-extrem- dad/1512389091_690459.html y https://www.lavan-
ists feed the propagation chain, whatever their guardia.com/tecnologia/20170922/431461979380/
motives for doing so (Phillips, 2015). twitter-renferendum-catalunya-bots-rusia.html
13 https://elpais.com/politica/2017/11/27/actuali-
In short, as Barack Obama said, ‘If everything
dad/1511786101_778281.html
seems to be the same and no distinctions are
Digital Trends in Culture

made, then we won’t know what to protect. We

14 https://elpais.com/elpais/2017/07/21/
won’t know what to fight for. And we can lose hechos/1500633548_817360.html; https://sevilla.
so much of what we’ve gained in terms of the abc.es/sevilla/sevi-cinco-bulos-whatsapp-re-
kind of democratic freedoms and market-based sisten-desaparecer-201811222241_noticia.html;
economies and prosperity that we’ve come to https://www.lasexta.com/programas/el-objetivo/
take for granted’.34 maldita-hemeroteca/cuidado-con-los-bulos-so-

78 CONSUMER TRENDS IN INFORMATION AND THE MEDIA IN THE CULTURE INDUSTRY · JAVIER LORENZO
 bre-cataluna_2017093059cf72300cf20201565be9cb. 25 Berkman Klein Center, https://cyber.harvard.edu/
html publications/2017/08/mediacloud
15 According to the Oxford Dictionary: ‘relating to 26 Professor of Journalism from the University of
or denoting circumstances in which objective facts Ithaca, New York, in an interview https://www.bbc.
are less influential in shaping public opinion than com/news/blogs-trending-37846860
appeals to emotion and personal belief’. https:// 27 http://www.digitalnewsreport.org/survey/2018/
elpais.com/internacional/2016/11/16/actuali- misinformation-and-disinformation-unpacked/
dad/1479316268_308549.html
28 Millions of visitors in the last month, according
16 Claire Wardle is co-founder of the First Draft to The General Study of Media: Internet Audience,
News, a non-profit making entity dedicated to the October-November, 2018.
search and contrasting of the truth situated in the
29 https://ec.europa.eu/digital-single-market/en/
Shorenstein Centre at Harvard University (https://
fake-news-disinformation
www.bbc.com/news/blogs-trending-42724320).
30 International Fact-Checking Network, which
17 https://digitalsevilla.com/
covers media such as The Washington Post, Rai, Le
18 https://casoaislado.com/ Monde, France Info and organisations such as Full
19 Allen Montgomery, director of National Report, in Fact, Chequeado, Google News and Facebook.
an interview with the BBC (https://www.bbc.com/ 31 https://www.bbc.co.uk/news/resources/idt-sh/
news/blogs-trending-37846860). the_godfather_of_fake_news
20 Analysis of 126,000 news items published in the 32 https://www.snopes.com/
last 10 years in English on Twitter.
33 https://www.bbc.com/news/blogs-trend-
21 https://www.washingtonpost.com/news/the-fix/ ing-37846860
wp/2017/02/23/why-fact-checking-doesnt-change-
34 Media Matters, 17 November, 2016, https://
peoples-minds/?utm_term=.2ad319b1baa0
www.mediamatters.org/video/2016/11/17/
22 https://cyber.harvard.edu/publications/2017/08/ president-obama-theres-so-much-active-mis-
mediacloud information-looks-same-actual-informa-
23 https://www.weforum.org/ tion-when-its-facebook/214518
agenda/2016/01/q-a-walter-quattrociocchi-digi-
tal-wildfires/
24 https://www.theguardian.com/world/2018/
jun/14/doxxing-assault-death-threats-the-new-dan-
gers-facing-us-journalists-covering-extremism

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AC/E DIGITAL CULTURE ANNUAL REPORT 2019 79

 ARTIFICIAL INTELLIGENCE
IN THE MUSIC INDUSTRY

Daniela Bosé · @bose_daniela

Daniela Bosé is currently Director of Palacio Vistalegre Arena (Madrid). She has previously
worked as General Director of BMG for Spain and Portugal, director of Sony Music
Entertainment’s Business and Rights Development wing, associate director of the Ministry
of Culture’s cabinet, managing director of Universal Music Publishing for Spain and
Portugal, vice president of SGAE, patron of the SGAE Foundation, vice president of the
Professional Organisation of Editors (OPEM) and advisor to Celesa and Crea SGR.
She has a business degree, specialising in business management, from the Complutense
Digital Trends in Culture

University of Madrid where she also completed her PhD in economics.

She now gives master classes at ICADE, Carlos III University, the SAE
Institute and the International Music Business School.
She directed the documentary Women in Music, which received rave reviews in Spain and
was also picked up by Billboard magazine, undoubtedly an extraordinary achievement.

80 ARTIFICIAL INTELLIGENCE IN THE MUSIC INDUSTRY · DANIELA BOSÉ

1. Introduction Record companies need to keep fans informed
about launches and an artist’s activities while
Musical composition has been undergoing a the promoters need to advertise the artists’
transformation since the days when the com- concerts, both of which aim to keep fans loyal.
poser studied solfege, used a pencil and paper
to compose and played classical music scores The traditional tools are no longer effective
on the piano. Now we have composers who when it comes to managing vast data bases:
compose without needing to know how to even artificial intelligence offers flexible and effective
play an instrument. solutions with chatbots. This means musicians
can access programmes that help with compo-
It all began when musicians became interested sition and production, and that allow them to
in computers. Like musical instruments, the optimise their creativity while lowering costs.
programmes were used as tools to create music, There are also algorithms that create music
paving the way for the marriage between tech- without any human intervention using artificial
nology and music. intelligence.

Ever since –and for several decades now – mu- With regard to to video platforms, these
sical creation and production software such as programmes offer low cost music that can be
Protools,1 Logic2 and Cubase3 have been used by used in millions of clips. This allows the film and
musicians and producers. videogame industries to create personalised
soundtracks that are free from rights.
Record companies and the way users consume
have also been subject to many changes, starting In the conclusions, we will look at various
with the hardware – there has been a shift from aspects such as the originality and quality of
vinyl to CDs; from downloads to what we do compositions created by intuitive algorithms as
now, which is listen online. well as the short-term future of artificial intelli-
gence in the music industry, taking into consider-
With the advent of artificial intelligence, the ation too the question of legislation with regard
music ecosystem has changed; the value chain to author’s rights on these pieces that have been
and the way in which the industry’s agents relate either generated in collaboration with artificial
to one another has undergone a transformation. intelligence or by artificial intelligence alone.

Users interact with music with, for example,

Shazam,4 which has revolutionised the identifica- 2. Artificial intelligence in music
tion of songs.
The concept of artificial intelligence, also known
The companies that offer streaming services as AI, was created in 1956 by John McCarthy,5 a
invest in start ups that improve predictions brilliant American mathematician and computer
concerning customer taste with the goal of engineer. It could be defined as the power of
keeping them loyal. reason demonstrated by a non-living being, ac-
quired through a human’s programming design.
Digital Trends in Culture

Thanks to these digital platforms, the music

industry is witnessing astronomical growth with The ability to replicate behaviour is also one of
regard to consumer figures and the musical the defining features of AI. It does this through
genres available. algorithms that, based on observation, allow

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 81

 the accumulated data to be processed and to The DNA of the music itself is closely linked to the
draw conclusions that have not been previously technology and the record labels are exploring how
programmed. AI can unite artists and fans even more closely.

There is still no general artificial intelligence, Using these statements as a departure point, we
only various specialised artificial intelligences. will move on to analyse what the impact on the
value chain and on the music industry’s agents
In the realm of music, it is being successfully has been.
applied to composition, production and con-
sumption. Using AI, we can choose the musical
instruments and voices we want for our songs 3.1. Composers
and also produce them. The intuitive algorithms
and the automatic learning systems – known The benefits for the composers are obvious,
as machine learning – are also used to identify since technology together with innovation
musical trends and so get consumer preferences allows music to be created with an algorithm.
right. Playing musical instruments and composing
songs is now within everyone’s reach.

3. Artificial intelligence in The result is the democratisation of creativity

the music ecosystem because AI helps and improves human creativity,
at times even replacing it with material gener-
In November 2016, Music’s Smart Future: How ated by AI itself.
will Artificial Intelligence impact the music
industry?,6 a report written by the industry’s Conclusion: AI brings down the cost of produc-
analysts Music Ally for BPI (British Phonographic tion and reduces composing time.
Industry), was published.

The investigation aimed to find out everything 3.2. Record companies

from how record companies, streaming compa-
nies and composers were taking the technology The application of AI is more accurate in areas
on board and how AI affects the discovery of such as marketing, where Big Data allows it to
new talent to digital distribution and how it predict consumer tastes.
alters the creative process in music.
Alternatively, in areas where there is a bigger
This is how Geoff Taylor, chief executive of the creative and intuitive component, as in the A&R
BPI explained it: departments (artists and repertoires), the success
of AI is still limited.
AI is no longer the province of science fiction.
Emerging technology is beginning to transform Record companies also make use of chatbots, a
the way in which music is created, discovered, text-message-based communication, to access
shared and enjoyed. AI is ushering in the creation the data of the artist’s fan base and keep them
Digital Trends in Culture

of hyper-personalised reproduction lists, using informed of news and concerts etc.

contextualised data and in-depth analysis on the
relationship between the songs while the artists Conclusion: AI allows record companies to target
and labels now use chatbots to interact with their their launch campaigns more accurately.
fan bases in the campaigns.

82 ARTIFICIAL INTELLIGENCE IN THE MUSIC INDUSTRY · DANIELA BOSÉ

3.3. Streaming platforms information to the authors and editors of each
song as well as paying the corresponding person
The creation of playlists that draw in users and or people for the rights.
keep them connected to the services providing
them is essential for streaming companies. With Soundtrap11
AI and machine learning, it is possible to hone
down preferences to the point of personalising Acquired in 2017, this offers an online music
these playlists on the basis of what the user has creation tool without requiring previous musical
already chosen to listen to. That is why most knowledge.
companies offering these music services are
incorporating AI into their musical streaming Loudr12
platforms so they can improve on their recom-
mendations and personalise them. Acquired in 2018, this allows content creators
and the attachés – those who compile the
Let’s analyse some of the most popular: content – and the digital music services to
identify, track down and pay royalties to the
3.3.1. Spotify editors.

It has made a number of investments, including:

The Echo Nest7

Acquired in 2014, this is an intelligent music

platform.

Niland8

Acquired in 2017, it offers API technologies –

application programme interface – which can
optimise searches for songs and recommenda- Infogram source: ‘Ever Wonder How Spotify Discover
Weekly Works? Data Science’,13 in Galvanize Blog.
tion potential. A pioneer in audio analysis using
deep learning technology, it explores the idea
that computers hear music in the same way Using the above technology, Spotify offers Dis-
humans do. cover Weekly – a service recommending music
that is highly valued by its subscribers, based on
MightyTV and Sonalytic9 their preferences and on the playlists they have
already listened to.
Acquired in 2017, these can make recommen-
dations with regard to video content and audio 3.3.2. Apple
detection.
It has made a number of investments, including:
Digital Trends in Culture

Mediachain Labs 10

Siri
Acquired in 2017, this uses blockchain technology
– which facilitates the transfer of digital data Acquired in 2010, this is a virtual assistant with a
through encryption – to assign the copyright voice command.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 83

 Beats Electronics With voice recognition, it allows the user to find
a song when they don’t remember the title, just
Acquired in 2014, this is a headphone company by feeding in a line of the song into the search
capable of linking culture and technology. The panel. The selection is achieved by analysing
property of Beats Music, this streaming service millions of songs offered on their streaming
transformed Apple Music. service.

Shazam14 Alexa, the virtual assistant from Amazon Echo,

thus becomes a music programmer for Amazon
Acquired in 2017, this is an application that Music.
allows digital audios and video content to be
identified after they have been played only Conclusion: there is a need to predict what the
briefly through the device’s microphone. user wants to listen to, otherwise the platform
may be unable to keep the customer loyal,
Asaii meaning they will change to another service that
can because it offers them more personalisation
Acquired in 2018, this is an AI platform for music. in the contracted product.
It analyses patterns in order to establish tenden-
cies, offer new suggestions or discover potential
singing stars. 4. AI companies

Platoon15 Since 2016, many startups have opted for AI and

its applications in the creation and management
Acquired in 2018, it discovers emerging talent of musical content.
and offers them a platform on which to create,
distribute and sell creative work. Here, we list the most interesting:

Silklab16 Flow Machine17

Acquired in 2018, this is a machine learning The property of Sony Computer Sciences Labo-
company for intelligent connected devices ratories (Sony CSL), Flow Machine has created
specialising in the creation of AI software for songs such as Daddy’s Car and Ballad of Mr.
hardware such as cameras and speakers. Shadow. The first is the result of having asked it
to compose a song in the style of The Beatles.
With the above technology, Apple offers Genius With the second, it is seeking to emulate the
Playlist that comes from iTunes or For You and style of Cole Porter, George Gershwin or Duke
My New Music Mix where the user chooses a Wellington, among others. To do this, it has at
song they like, which then generates an immedi- its disposal a database of thousands of songs of
ate playlist with similar types of song. different musical styles but it still requires human
intervention when it comes to selecting the style
3.3.3. Amazon Music and the melody.
Digital Trends in Culture

It leads the AI and Internet market of Things – Deepbach18

digital interconnection of daily objects with the
Internet – in the realm of music. This is included within Flow Machine and is a
programme that composes in the style of Johann

84 ARTIFICIAL INTELLIGENCE IN THE MUSIC INDUSTRY · DANIELA BOSÉ

Sebastian Bach. To do so, hundreds of the recipients using text message services such as
composer’s choruses are introduced, then modi- WhatsApp, Facebook Messenger, etc.
fied to obtain thousands of choruses. It needs no
human intervention. The advantages are multiple, from using applica-
tions that are an integrated part of daily commu-
Magenta19 nication, low costs and reducing the time taken
for a response as they work round the clock 365
This is a Google programme that listens to what days a year.
the composer creates and offers suggestions to
improve it. It can also learn and use sound bits to
create melodious structures. 5.3. Ticket resale

2017 Vodafone video20 ‘The future is amazing’ AI has had a negative impact when it comes to
the resale of tickets. The bots buy tickets en
Jukedeck21 masse, and even block access to the websites
that belong to the concert’s promoters. These
This online platform offers editable tracks in programmes are capable of buying practically
various styles that can be modified in length or all the tickets on sale in a matter of minutes,
tempo to suit the needs of the user. It allows for preventing human users from legitimately
music to be acquired at low cost. accessing them.

2018 Vodafone video22 ‘The future is amazing’ The brokers – those who work in the buying and
selling of tickets – then shift these tickets over
to secondary markets to sell at far higher prices
5. AI applications in music than what they were originally going for.

Currently, the successful incorporation of this

technology in music depends on which fields 5.4. Machine learning
they are being applied to, as examined below.
The possibility of analysing millions of pieces of
data on consumers not only reveals their tastes
5.1. Songs but also their consumer habits and on which
days of the week and even what time of the day
Due to the limited originality of the songs that they are likely to shop – all of which optimises
AI has been able to create up to now, its use is the activities of digital marketing, which also
being limited to what is known as production uses information on age and gender.
music: songs for adverts, sound tracks, shorts or
background music, videogame music and video We have already spoken about how this allows
clips for YouTube and Vimeo. It is also used for platforms to suggest playlists and record compa-
public address and commercial premises, etc. nies to target their launches and ticket people to
know which concert tickets to offer to whom.
Digital Trends in Culture

5.2. Chatbots Through machine learning, AI makes it feasible

to combine data such as time and place with
Where concert promoters, record companies and the aim of offering the user a more personalised
the artists themselves are concerned, chatbots service.
offer personalised communications for the

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 85

 6. Creativity value programming of content on a massive scale; and
in the recommendation and personalisation of
Due to a constant process of transformation, audio; etc.
the music industry and entertainment in general (La Vanguardia, 30 August 2018)
have been extremely proactive about incorpo-
rating new technology. But the value of what is Ramón López de Mántaras26 (Artificial Intelli-
created by machine compared to what is com- gence Investigation Institute [IIIA], Bellaterra,
posed by a human is the subject of an on-going Spain)
debate.
One of the main limitations of music generated by
Below, we will quote statements from various computer has been the lack of expression, meaning
experts, either defending the value of AI or its lack of nuance. Nuance is what musicians call
questioning it: the details of performance, which are uniquely and
subtly interpreted. In other words, creatively…
Samuel Fishwick23 (‘Artificial Intelligence and the arts. Moving towards
computer creativity’, in VV. AA., The next step: the
… Simply, the technology reads music and learns exponential life, BBVA, 2017, col. Open Mind)
what notes, chords and combinations work in
order to generate good music. Patricia Biosca27
(Evening Standard, 1 March 2018)
Machine learning is one of the basic technological
Marco Selvi 24
essentials if a machine is to ‘learn’ to reach conclu-
sions and start to ‘think’ like a human brain, using
… this kind of composition in which machines play experience and suppositions.
an important role will be increasingly common in Artificial Intelligence is already applied to multiple
the future, albeit maintaining the human factor. aspects of industrial processes and it has recently
In Jukedeck’s own blog, they express confidence shown important advances in a huge number of
in this idea, asserting that: ‘Artificial Intelligence is cases.
more powerful when used as a tool to complement One of the most interesting is in the arts. Is a
human creativity.’ machine capable of playing an instrument as a
(Pedro García Campos and Mikel Aguirrezabalaga, human being would?…
El País, 27 August 2018) Creativity is one of the big challenges that Artificial
Intelligence faces. How can it imitate a human
Josep Lluís Micó25 being’s capacity to create art independently?
(Abc Innovación, 25 January 2018)
In the beginning, there was a proliferation of
opinions from professionals such as Pascal Pilon, Mark Mulligan28
who was behind the Canadian start up Landr and
tried to settle the debate with the categorical AI may never be able to make music good enough
statement: ‘I don’t believe that anyone wants to to move us in the way human music does. Why
listen to songs made by robots because music tells not? Because making music that moves people – to
Digital Trends in Culture

stories.’ jump up and dance, to cry, to smile – requires

However, there are increasingly more experiences triggering emotions and it takes an understanding
that appear to be contradicting him; in writing, of emotions to trigger them.
acting and audio performance; in the analysis and (The Guardian, 6 August 2017)

86 ARTIFICIAL INTELLIGENCE IN THE MUSIC INDUSTRY · DANIELA BOSÉ

7. Legal framework So, in these countries, AI cannot claim copyright.

As we have mentioned, the creation of music has Consequently, interesting questions arise: what
been undergoing a transformation; the era when then happens when there is no human involved
composers used a pen and paper to compose in the creative process? Should we assume that
and played their scores with instruments from these creations are copyright-free? If so, can
different periods are a thing of the past. anyone make free use of them for advertising,
for example?
After the 1970s, electronic music became popu-
lar; synthesisers are the new musical instruments From a purely commercial angle, this conclu-
and as such they are a tool for musical composi- sion would prove problematic for companies
tion. As a support for human composition, AI is like Spotify, Apply, Amazon and Google that
also considered a tool, generating a process of have invested millions of dollars in acquiring
‘assisted creation’. start-ups to generate, among other things,
AI content.
But if AI brings creativity to the table, it is then
not considered just a support tool for human
creators; we would then understand that AI is a 7.2. AI as the creator with regard
creative entity in itself. to intellectual property rights

In New Zealand, despite the fact an original

7.1. AI is not the owner of piece of work should be created by a human in
intellectual property rights order to be protected, it has been accepted that
a work created by artificial intelligence could be
In Spain and Germany, the requirement of protected.
originality takes precedence. Only those works
that are original, as a product of human creation, However, the ownership of these works will
are protected by the Intellectual Property Law. not correspond to AI; the beneficiary will be the
person who created or used the AI programme.
In the same vein, the European Union Court
of Justice has ruled on various occasions that In the UK, it has been established that, in the
copyright can only apply to original works. And case of musical compositions created by a com-
given that, originality should reflect the intellec- puter, the person considered to be the author
tual creation of the author. should be the person who put in the necessary
work for the composition to be created, clari-
The US Copyright Office has established that fying that a work created by a computer is one
only original works created by human beings can that has no human author.
be registered, making it clear that this excludes
works produced by machine or through a me- Legislation takes a similar line in India and
chanical automatic or random process without Ireland.
any creative contribution.
Digital Trends in Culture

Consequently, these countries recognise the

And in Australia, a court has declared that a rights of the author assigned to the programmer
work generated with the involvement of a or the person responsible for the input needed
computer cannot be protected by copyright, as it to create the work. Certain questions also
has not been produced by a human being. arise in this case, such as: Who is the person

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 87

 responsible for input referred to in the UK? Is it difficult to differentiate between works created
the programmer or the user of the programme? by humans from those which are not.

Because, if the rights belong to the owner of the

AI, the business model is clear and this model 8. Short-term trends
will sell songs generated under licences for use
with these programmes. If the rights are for the Aspects that belonged to fantasy literature and
user and the creative contribution of the user is science fiction cinema are being seamlessly
zero, there will be songs registered under copy- incorporated into our lives.
right that might not even have originality.
In this evolutionary process, a significant role is
being assigned to AI. Big Data, algorithms,
7.3. AI as the owner of the machine learning etc. all feature in this transfor-
intellectual property rights mation which is being termed the 4th industrial
revolution.
In countries such as Japan and Korea, awarding
intellectual property rights to machines is being
considered.

Saudi Arabia has already conceded citizenship to

Sophia, an android created by AI. And this also
throws up interesting questions: Can AI sign
publishing contracts? And can it have heirs to its
rights? At what point will these songs enter the
public domain if the author – AI – never dies? Diagram: The four industrial revolutions (by
Christoph Roser in AllAboutLean.com)

If AI owns the rights, given the lack of originality,

could it be accused of plagiarism? There will be big advances, especially within the
context of the cultural industries:
Conclusion: it seems clear that there is a need
to legislate on the matter and that doing so will • The artistic community will have more AI
not prove easy, since the first step is to decide if tools at their disposal, which will allow
work created by AI can be protected. them to achieve professional results even
without technical experience.
Once that is decided, the next step is to decide
who the rights correspond to and on the basis • Virtual reality, 3D printing, the Internet of
of which minimum requirements of originality or Things, augmented reality etc. will all have a
creativity in the resulting work. relevant impact.

Another option is to establish that the pieces of • Audio Internet (Siri, Alexa, Google Home,
work generated by AI are in reality works that etc.): these intelligent assistants will be our
Digital Trends in Culture

have been made-to-order or commissioned in DJs when at home or driving etc.

which both the author and the programme user
will have rights. • Nature and technology will combine, gener-
ating new biological materials and derivative
To date, the best stance seems to be that of the products; almost everything we are familiar
UK, but as AI progresses it will be increasingly with will be redesigned.

88 ARTIFICIAL INTELLIGENCE IN THE MUSIC INDUSTRY · DANIELA BOSÉ

 • And perhaps because of this there will be a Patricia Biosca in Abc Innovation
need for real experiences, defined as IRL (a
spin on URL) – meaning in real life. https://www.abc.es/tecnologia/informatica/
abci-inteligencia-artificial-crea-musica-esti-
• Innovations and changes that are expected lo-bach-201801242152_noticia.html
to take place in the short term will be
due to the fact that human beings will be Josep Lluís Micó in La Vanguardia
increasingly more technologically literate
and technology will be increasingly more https://www.lavanguardia.com/tecnolo-
human. gia/20180830/451532894779/musica-inteligen-
cia-artificial.html)

9. References, suggestions Clifford Chance

and Twitter accounts
https://talkingtech.cliffordchance.com/en/ip/
BPI Promoting British Music 2016 Report ‘Music’s copyright/ai-and-ip--copyright-in-ai-generated-
smart future: the impact of AI on the future of works--uk-law-.html
the music industry’
Tech World
https://www.musictank.co.uk/wp-content/
uploads/2018/03/bpi-ai-report.pdf https://www.techworld.com/data/ip-rights-for-
ai-who-owns-copyright-on-content-created-by-
Samuel Fishwick in The Evening Standard machines-3671082/

https://www.standard.co.uk/tech/ Stanford Law School

jukedeck-maching-learning-ai-startup-mu-
sic-a3779296.html http://cyberlaw.stanford.edu/blog/2018/05/
artificial-intelligence-art-who-owns-copyright-0
Pedro García Campos and Mikel Aguirrezabalaga
in El País La Vanguardia

https://elfuturoesapasionante.elpais.com/ https://www.lavanguardia.com/cien-
asi-es-la-inteligencia-artificial-que-ha-crea- cia/20180717/45948321612/francois-pachet-musi-
do-la-musica-de-este-articulo/ ca-inteligencia-artificial.html

Ramón López de Mántaras (The Artificial Intelli- Forbes

gence Institute of Investigation [IIIA], Bellaterra,
España), ‘Artificial Intelligence and the Arts. https://www.forbes.com/sites/
Moving towards computer creativity’, in VV. AA., bernardmarr/2017/10/30/the-amazing-
El próximo paso: la vida exponencial, BBVA, 2017, ways-spotify-uses-big-data-ai-and-machine-lear-
col. Open Mind. ning-to-drive-business-success/#2e3707584bd2
Digital Trends in Culture

https://www.bbvaopenmind.com/articulos/ El País Retina

la-inteligencia-artificial-y-las-artes-hacia-una-cre-
atividad-computacional/ https://retina.elpais.com/retina/2018/08/06/
innovacion/1533554472_186237.html

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 89

 El País BBVA

https://elpais.com/elpais/2018/08/07/cien- https://www.google.es/amp/s/www.bbva.com/
cia/1533664021_662128.html es/inteligencia-artificial-resucita-beatles-bach/
amp/
Vodafone
WIPO
https://m.youtube.com/watch?v=fhLsS_NCFx0
http://www.wipo.int/wipo_magazine/
https://m.youtube.com/watch?v=ss2uaGsHWao en/2017/05/article_0003.html

RTVE http://www.wipo.int/edocs/pubdocs/en/
wipo_pub_econstat_wp_30.pdf
http://www.rtve.es/noticias/20161216/inteligen-
cia-artificial-aprende-bach-para-componer-musi- Kalin Hristov en IDEA. The Law Review of the
ca-clasica/1455403.shtml Franklin Pierce Center for Intellectual Property

The Guardian https://www.ipmall.info/sites/default/files/

hosted_resources/IDEA//hristov_formatted.pdf
https://www.theguardian.com/technology/2017/
aug/06/artificial-intelligence-and-will-we-be- European Parliament
slaves-to-the-algorithm
http://www.europarl.europa.eu/sides/
Music Business Worldwide getDoc.do?pubRef=-//EP//NONSGML+RE-
PORT+A8-2017-0005+0+DOC+PDF+V0//ES
https://www.musicbusinessworldwide.com/
whats-the-value-of-a-song-when-artificial-intelli- http://www.europarl.europa.eu/RegData/
gence-is-everywhere/ etudes/STUD/2016/571379/IPOL_
STU(2016)571379_EN.pdf
El País

https://elfuturoesapasionante.elpais.com/ Twitter accounts to follow

asi-es-la-inteligencia-artificial-que-ha-crea-
do-la-musica-de-este-articulo/ Maya Ackerman: @ackermanmaya

OK Diario Pierre Barreau: @pierrebarreau05

https://okdiario.com/ciencia/2018/12/07/ro- Allison Chaney: @_ajbc

bots-revolucionar-nuestras-relaciones-3430465
Douglas Eck: @douglas_eck
TED Talks
Digital Trends in Culture

Gonzalo Estrán Buyo: @sigmoider

https://www.ted.com/talks/pierre_bar-
reau_how_ai_could_compose_a_personalized_ Cliff Fluet: @fflic
soundtrack_to_your_life/up-next?language=es
Gaëtan Hadjeres: @gaetan_hadjeres

90 ARTIFICIAL INTELLIGENCE IN THE MUSIC INDUSTRY · DANIELA BOSÉ

 12 https://loudr.fm
Cherie Hu: @cheriehu42
13 https://blog.galvanize.com/spotify-discover-week-
Siavash Mahdavi: @seaofash ly-data-science/
14 https://www.shazam.com/es
Andrew Ng: @AndrewYNg 15 https://platoon.ai/
16 https://www.silklabs.com/
Núria Oliver: @nuriaoliver
17 http://www.flow-machines.com/archives/ai-
François Pachet: @francoispachet makes-pop-music/
18 https://www.youtube.com/watch?v=QiBM7-
Hazel Savage: @hazelsavage 5hA6o
19 https://ai.google/research/teams/brain/magenta/
Marco Selvi: @mcaselvi
20 https://m.youtube.com/watch?v=ss2uaGsHWao
Francisco J. Vico: @fcovico 21 https://www.jukedeck.com
22 https://m.youtube.com/watch?v=fhLsS_NCFx0
Hanna Wallach: @hannawallach
23 https://www.standard.co.uk/tech/jukedeck-mach-
ing-learning-ai-startup-music-a3779296.html
Notes 24 https://elfuturoesapasionante.elpais.com/
asi-es-la-inteligencia-artificial-que-ha-creado-la-mu-
1 https://www.avid.com/pro-tools sica-de-este-articulo/
2 https://www.apple.com/es/logic-pro/ 25 https://www.lavanguardia.com/tecnolo-
gia/20180830/451532894779/musica-inteligencia-ar-
3 https://new.steinberg.net/es/cubase/
tificial.htm
4 https://www.shazam.com/es
26 https://www.bbvaopenmind.com/articulos/
5 http://jmc.stanford.edu/ la-inteligencia-artificial-y-las-artes-hacia-una-cre-
6 https://www.musictank.co.uk/wp-content/up- atividad-computacional
loads/2018/03/bpi-ai-report.pdf 27 https://www.abc.es/tecnologia/informatica/
7 http://the.echonest.com/ abci-inteligencia-artificial-crea-musica-esti-
8 http://niland.io/index.php lo-bach-201801242152_noticia.html
9 https://sonalytic.com/
28 https://www.theguardian.com/technology/2017/
aug/06/artificial-intelligence-and-will-we-be-slaves-
10 http://www.mediachain.io
to-the-algorithm
11 http://www.soundtrap.com
Digital Trends in Culture

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 91

 THE PODCAST IN THE
CULTURAL SECTOR

Isaac Baltanás · LinkedIn

Digital Trends in Culture

Isaac Baltanás is the consultant for Podcast Pro, Audio Manager of Storytel Spain and professor
of audio publicity at the Pompeu Fabra University. He has clocked up more than 3,000 hours on
air and more than a thousand publicity slots. He has also recorded dozens of audio books. Isaac’s
career has taken him through all the audio formats, from conventional radio to binaural podcasting.
In recent years, he has focused on audio techniques with which to refine marketing strategies.

92 THE PODCAST IN THE CULTURAL SECTOR · ISAAC BALTANÁS

But what is a podcast? became viable. The Internet and mp3 together
spurred the proliferation of mp3 players over
Several days ago, my grandfather asked me what the following decade and the breakthrough of
a podcast was. The question left me stunned for the definitive iPod in October 2001 as the player
a few seconds. It was only a couple of years back of audio sounds par excellence. Now everyone
I had to go from company to company explaining could access on-demand content, carrying the
what a podcast was. And now even my grandfa- device easily in their pocket, whether it stored a
ther had heard of it. I sat down beside him and thousand songs or a thousand stories.
told him, ‘It’s like a gourmet restaurant that’s
open 24 hours a day but instead of dishes on the While the mp3 established the highway for
menu, there are radio programmes: you have on-demand audio content, another revolution
them how and when you want.’ was taking place concerning the written word.
The blog revolution on Internet was taking off,
I think he understood. A podcast is an audio a written format published periodically that any
restaurant1 where we go to listen to whatever user could set up. The difference between a
most appeals to us on the menu. Or, to be blog and static web pages concerns Rss – Really
more precise, a podcast might be defined1 as Simple Syndication. Rss technology is a small
‘an on-demand audio file that is published on a hidden code on a web site that allows the user
recurring basis.’1 to subscribe. Whenever the web site is updated,
the user gets the update so he does not have to
The term podcast was coined by the journalist visit the site on a regular basis.
Ben Hammersley in an article for The Guardian
called ‘The Audible Revolution’,2 published on In these days of smartphones and updates at all
11 February 2004. It was the year when the first hours of the day and night, Rss technology might
audio blogs surfaced, which were the predeces- sound primitive, but though small, this change
sors of the podcast. A year later, Apple created transformed the way in which the transfer of
a podcast section on its iTunes platform,3 where digital information was understood. Anyone
we can now listen to most of them. However, could set up a blog and anyone could sign up
it took 10 years of evolution before it became to one. The Web 2.0 had come into being.
the fashionable media it is today. And it is this From that moment on, any user could create
evolution that we’re going to review. an on-demand content channel, not only the
big communications corporations. With these
technological advances and the laying of various
The Origin of the Podcast foundations within society, the true story of the
podcast began.
The podcast came about due to a series of social
and technological changes. The first stumbling In 2002, the businessman and media personality
block to overcome was of a technological nature. Adam Curry took the Rss concept to a slightly
Until the end of the 20th century, storing sound more elevated level and adapted this code so
was tricky and inefficient. But in 1991, the indus- that the technology could carry audio files in its
trial engineer Karlheinz Brandenburg invented updates.
Digital Trends in Culture

the mp3, an algorithm that allowed audio files to

be stored in digital format, saving 90% of space. He invented software for a few trial runs and
finally he was able to convince a handful of tech
The means of storing sound began to advance experts to set up a platform that anyone could use
apace. With the mp3 as the departure point, to upload their own radio programmes and any
the transmission of audio files through Internet user could subscribe to as they might with a blog.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 93

 This development, known as audio-blogs, caused one of which is to play podcasts. And so we have
a great stir among the world’s biggest geeks and been able to ensure that the consumer includes
in-demand audios via Rss mushroomed in com- the cultural content among his consumer habits.
puters across the world. Many subscribed to the The world is accelerating all the time and audi-
audio blogs as part of a new cultural consumer ences are seeking ways to pursue their interests
trend that caught on among the early adopters.4 and pleasures without having to break the vertig-
Reflecting this trend, journalist Ben Hammersley inous rhythm of their daily routine. For example,
published an article in The Guardian5 on 11 if someone wants to read more books, see more
February 2004 that referred to the term ‘pod- films or go to the theatre more often, they have
cast’. Clocking the potential of the trend, Apple to decide to dedicate less time and money to
updated its music management programme other pursuits as each of these activities requires
iTunes to include a section for the podcast in undivided attention. However, with the podcast,
June 2005, and it was officially christened. which has an à la carte audio format and free
access, a person can consume more of his
And that is how the format that changed the listening choices without this affecting either his
way we consume all kinds of sound content agenda or his pocket. The podcast allows us, in a
really took off. In 2007, once again with Apple way, to multi task.9 While we listen to a podcast
in the driving seat, the smartphone took the programme, we can drive, walk, walk the dog,
market by storm. This new device allowed users cook, run, draw, rest, enjoy a landscape and even
to sign up, download and consume podcasts carry out menial jobs.
directly, without needing to be connected to a
computer. Shortly afterwards, 4G appeared, with In fact, with the podcast, we can listen to our
a far faster wireless connection and this made favourite content while doing any number of
it possible for users anywhere and at any time things that don’t require excessive brainpower.
to download podcasts, which they could carry Content producers have spent many years mak-
around with them wherever they went. Although ing us use our eyes while there was a completely
the podcast had many technological and social free channel available, one that was almost
factors in its favour, it wasn’t until 2014 that it unexploited, namely our ears.
would become a media of mass consumption.
The podcast can be used to achieve many
This year, The American Radio released Serial, an objectives and with any type of content. But in
investigative journalism podcast by Sarah Koenig this article we are going to focus on the culture
that swept aside all imaginable barriers between podcast.
the audience and the format. Serial is considered
the podcast catalyst.6 On-demand audio pro-
duction radically changed when this serialised How can the podcast help
documentary went viral, attracting the attention the cultural sector?
of 50 million listeners in less than three years.
With Serial, the podcast established its role With the definitive arrival of the podcast, the
as a source of reliable and rigorously gathered cultural sector has reason to celebrate. Perhaps
information, making it a professional media for it is the sector that can benefit most from
Digital Trends in Culture

society within everyone’s reach. on-demand audio content. All we need to do is

to find podcast strategies specific to our activity.
It is a recognised fact (Rodero, 2018) 7 that we Depending on the material that our profession
are returning to the oral tradition.8 Our homes needs in order to develop, the podcast can
are inundated with devices that we interact with be used in different ways. In other words, the
using our voices. These devices have many uses, contents of a podcast that is linked to our sector

94 THE PODCAST IN THE CULTURAL SECTOR · ISAAC BALTANÁS

or brand should be focused accordingly. Here with, referred to by marketing specialists as
we’ll take a look at some examples of various micro niches (Godin 2009). So, although we have
areas of interest. addressed the podcast and its relationship with
to the world of books, the fact is we have only
looked at examples that involve the actual
The Podcast and the writing process. But we can also find specific
world of books podcasts associated with books that foster
growth in the sector from other angles, such as
It could be said that, since its beginnings, the editing and publishing.
blog has been considered a form of publication
in which writers of all calibres have left their
footprint on the Internet. Curiously, the podcast
also serves as a refuge for lovers of the written
word. Many authors view the on-demand audio
as a channel for offering advice. Others view the
microphone as the ideal companion for sharing
their experiences in the field. Some years before
the podcast became a mass media, the author
and translator Álex Hernández-Puertas published
Writer’s Workshop,10 a podcast that has become
Presenters of the podcast Beaks & Geeks15
a common foundation course for many wishing
to break into the art of writing. But it wasn’t the
first. If we look through the radio archives, we Publishing houses are fully aware of the potential
can see how the airwaves have also served to of audio. Hence, they have incorporated the
encourage writing. Tales on Air11 has been going podcast into their marketing strategy to appeal
for several years now in collaboration with The to people by means other than the printed word.
writers’ School.12 In this case, the radio show that Penguin Random House has pushed the format
would later go on to become a podcast actively with Beaks and Geeks,16 an audio production that
fostered writing with audience participation. has gradually won over lovers of literature.
Fans of writing and those who were merely dab-
bling could show off their abilities by making up This podcast is worth mentioning because its
stories using the last sentence from the previous audio content strategy focuses on interviews
story. It’s an extremely creative exercise that is with authors, many of whom are famous, but
included in all writing courses, but it became also because presenters read out passages of
more attractive and challenging when it was books that are about to be published. A similar
shared with thousands of listeners who followed strategy is used by ExLibric with its podcast
the programme each week. The podcast has Demanding Writers,17 another example of how
followed its success as a learning medium for a publishing house promotes its merchandise
many writers and examples such as Triumph through the podcast. Its weekly programmes
with your Book13 and The Enterprising Writer14 are include interviews, book reviews and even
among the many available. advice to the reader on how to create the
Digital Trends in Culture

perfect book.
One of the first things that we learn when
working closely with the podcast is that, unlike These are examples of how a publishing house
radio, it can tackle very specific material without can make use of the podcast to promote its
losing the audience or the profitability of the merchandise, usher people towards paper or
production. Very specific themes can be dealt the e-book and drive up sales. The book sector

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 95

 would benefit if every publishing house, however ture time,23 Free Letters24 and even the interviews
small, could promote its new publications with on Podium Podcast25 with high-profile writers.
a podcast. A small amount of what is on offer
would be available on audio and that would The format can be so specific, we even find
quite probably reignite enthusiasm for books in podcasts devoted solely to poetry. So publica-
those who have stopped reading and even in tions such as Urbanites between verses,26 Poetry in
those who never started. step,27 Peruvian Poems28 and Time for words29 can
delight those who are passionate about poetry,
As far as consumption is concerned, there are allowing every kind of literature lover to have
also private initiative podcasts related to books their own niche.
that foster reading. So an avid reader of new
material can find more material besides what This list of examples shows that the podcast
is available in his usual bookshop. For example, has great potential to promote the world of
Colombia has The Reading Club,18 an audio books, from workshops with aspiring authors to
broadcast offering an extensive look at the new the promotion of a book that is in bookshops,
literature coming out now. Of course, similar through publishing houses and agents’ position-
initiatives will be available in every language and ing strategies.
in every country. Another example is The Tea
Library,19 a podcast of book reviews where the Another important area in the world of publish-
podcasters comment on books they have read ing is that of audio books, which we will speak
recently. about now.

This kind of podcast offers reliable information

that is highly valued by readers through the au- The Podcast and audio books
thentic experience of two readers. If a publishing
house or an author manages to get in with the The audio book is a format that is worthy of
makers of this kind of podcast, it can become a special mention in relation to podcasts. As we
wonderful promotional partnership. can see, there is a broad connection between
literature and the spoken word. We could say
There are so many book podcasts, producers that to listen is also to read.30 This is why the
are on the lookout for new angles to present podcast is a natural medium through which to
and analyse what the sector has to offer. In the approach stories. It is also true that the podcast
case of Adapted Scripts,20 the podcasters speak has ushered in the audio book as a legitimate
about how certain films have been adapted from means of ‘reading’ books that are also available
books. It is one way of making people aware in paper or on devices. This is because, from
of how the format of a story can be changed, the start, the podcast has been conceived of
analysing what it gains and loses in the process. as a free mass media while the audio book was
This podcast has an analysis strategy that helps conceived within an economic context that
the audience to understand how stories work in respects the rights of each author in accordance
books. Other podcasts such as Black and crimi- with the authors and publishing houses. So while
nal21 or Litercast22 use a different strategy – they the technology is practically the same, the eco-
Digital Trends in Culture

offer the audio adaptation of Spanish-speaking nomic context is different.31 Podcasts and audio
authors using studied production techniques. It books have different business models. Even so, a
is a very effective way of allowing the listener to podcast can be turned into a very effective tool
enjoy stories that they perhaps might not have with regard to the audio book. Remember that
considered reading. To foster reading, there is an the podcast and the audio book use the same
endless list of audio publications such as Adven- audio format, which means that the natural

96 THE PODCAST IN THE CULTURAL SECTOR · ISAAC BALTANÁS

medium for promoting the audio book should The exceptions are podcasts dedicated to freely
be the podcast (or the radio). In other words, shared music, as in the case of ERA Magazine,36 a
the podcast is to the audio book what the press network of independent music podcasts. There
has been to the book; the same format and an are also initiatives to foster classical music and
essential alliance. private projects with sufficient funds to pay the
royalties for the use of the songs.
Imagine that we launch a podcast with just
minute long fragments of audio books that can This same problem arises when it comes to
be found in a catalogue. All you would need film podcasts as they also use music. Here, we
to say would be something like: ‘If you want examine the format.
to continue listening to this story, you can go
to…’ at the end of every fragment. Thousands
of users would then have access to free samples The Film podcast
from a catalogue of audio books that could
then be accessed under certain conditions. It is As we said, podcasts on music have not thrived
a promotional model that could be particularly due to the lack of a legal framework that can
appealing to subscription platforms for audio- offer incentive to podcasters but there are
books32 because once the user tries out one title exceptions, as in the case of The Accommodator37
in the catalogue (the one on the podcast), he which is protected under an agreement between
may well want to access more titles and he will iVoox38 – one of the main free podcast platforms
stay to listen. In other words, the podcast is a – and SGAE.39
gateway to a catalogue of audio books, increas-
ing the traffic and benefitting the sector while at This podcast, like many others, reviews the best
the same time respecting the author’s rights and soundtracks in the history of film. And the fact is
the general economic structure that helps ensure that the podcast is a great supporting tool when
that the book sector survives. The importance of it comes to promoting new releases and making
the author’s rights is precisely what audio books the public aware of what cinema is worth in our
have in common with the format we are going age, as happened with What I’m telling you40 or
to examine next: music podcasts. The Script.41 In the case of the latter, its success
has been so meteoric that it has been transferred
to television.42 And so we leap from one visual
The music podcast art to another – painting.

As with audio books, the podcast should be the

obvious promotional medium for music. But there The painting podcast
is one problem: the fact that the podcast is a free
mass media. As we know, a lot of music cannot be Despite being a purely visual discipline, painting
made freely available because of legal issues. This curiously has plenty of podcasters eager to
is why the majority of initiatives that exist come explore what they feel most passionate about.
from communications groups that have existing Fans of the greatest oil paintings can find pod-
agreements to use the music with the regulatory casts that keep them up to date with the main
Digital Trends in Culture

bodies of the relevant country. An example of this exhibitions around the world.
kind of podcast could be the Audio Sofa,33 which
comes under the Cadena Ser umbrella, Pop Shop In 2016, the San Francisco Art Museum launched
Podcast34 from Billboard or The New York Times its Raw Material43 project that links the artists
Popcast35 that depends upon the legal protection exhibiting in the museum with an in-depth
of the legendary communications group. exploration of modernism.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 97

 It is without doubt a great strategy for attracting listen to details about the aesthetics and struc-
more visitors to the museum and a point of ture of the city in question being analysed. The
reference within on-demand audio broadcasting. aim of this podcast is primarily to raise public
awareness about the architecture sector by
Similarly, we can listen to Sidedoor,44 produced offering a list of buildings that should be visited,
by the Smithsonian Institution and The Memory making it a bit like a tourist guide for those
Palace,45 created by a resident artist at the wishing to visit the city.
Metropolitan Museum of Art in New York. The
list of podcasts dedicated to this discipline is In other languages, podcasts dedicated to
extremely long, as is the list of podcasts on the architecture are surprisingly broad in scope.
performing arts. DnA Design and Architecture53 is particularly
notable with Frances Anderton examining the
latest news and trends in architecture from Los
Performing art podcasts: dance, Angeles. The strategy lies in making the latest
theatre, opera, ballet… news (Woessner, 2017) available to the entire
sector while encouraging all the professionals
The performing arts have their place on radio working within the sector to participate in the
inspiring programs such as Points about cinema project. This is a quick way to create a network
and theater.46 The fact they have had a pres- of contacts, involving the best professionals
ence in the audio media for years has made it currently in the field and, in turn, becomes a
easy to turn them into material for a podcast, vehicle for making personal brands more visible.
while changing the focus. Performing arts A professional with this media to hand can po-
professionals have been quick to recognise the sition himself as an expert, a reliable consultant
podcast’s potential and that means that even and, of course, as the preferred option for the
the most famous theatre actors have got into client. This is the thrust of Archispeak,54 one of
making podcasts, such as The Show Hall,47 in a the best-known architecture podcasts. With the
bid to attract audiences to the theatre. Using above examples, we can see how the podcast
the actors themselves to raise awareness is one can be relevant within the realm of the visual
of the most effective audio strategies. In English, arts. The same applies to sculpture.
there is a similar scheme called Honest Actors48
which uses a more personal focus with the
actors drawing on their own experience. The sculpture podcast

If there are podcasts that help you learn to be There are sculpture podcasters who use the audio
a better writer, there are also podcasts that format as a channel for promotion or educational
help you to become a better actor. This is the ends. One example is the State of the Art,55 a
case in podcasts such as Theatre People,49 Actor podcast with a huge audience that gives us a
CEO50 and Inside Acting.51 The arts are so diverse serialised account from Brazil of the sculpture
but the podcast has found all kinds of creative movements throughout history. Also serialised
formulas to reflect culture in general, including but with a broader vision, Contemporary art
the most visual arts such as architecture. territories56 spends time examining the tendencies
Digital Trends in Culture

and ideas that have existed throughout history.

The Architecture podcast But just as podcasts can fill us in on the history
of sculpture, on-demand audio can be a great
Architecture has been no exception with regard tool when it comes to escapism, hence the huge
to the podcast. In A minute in New York52 we can selection of recreational podcasts.

98 THE PODCAST IN THE CULTURAL SECTOR · ISAAC BALTANÁS

The leisure podcast prove very useful when creating content where
holding the listener’s attention is essential, as in
The podcast has been a great tool for entertain- the case of the educational podcast.
ment and escapism and it is these kinds of
podcasts that have proved the most popular. No
one knows anything57 with Andreu Buenafuente The educational podcast
and Berto Romero has been ranked number one
in Spain for years. But the entertainment pod- The revolution in education triggered by the
cast has something else to offer besides on-de- podcast lies in the fact that usually all the
mand audio content. Practically all the podcasts, formats we use to learn – be they video, paper
whatever the theme, try to emulate their use of or pdf – require our full attention. But, as the
humour or mystery to hold the listener’s atten- student listens to the podcast, he can continue
tion. An entertainment podcast can also have a to revise or even introduce new concepts while
political focus, such as Marc Maron’s WTF doing other things.
podcast in which he interviewed Barack Obama58
in his second term as President of the United We can find a number of educational podcasts
States. It was one of the most popular in 2015. that give us an idea of the media’s potential in
(Maron, 2017). this field. One of the most outstanding in Span-
ish is the Audio school project62 from Santillana,
which suggests using podcast episodes as com-
plementary material. Impeccably produced and
using a variety of narratives, this initiative easily
holds the student’s attention as the style totally
meets the requirements of audio media.

Within the community of educational podcast-

ers, there is a tendency to address concern about
the development of teaching that exists among
educators. New ideas on how a teacher, using
his own resources, can improve the educational
Marc Maron and Barack Obama in WTF59
community are presented and discussed. L for
Language63 and Truth for Teachers64 are podcasts
The podcast is a great medium for stories, as that discuss the state of education and its
has been shown with initiatives such as the The development. Taking this one step further is The
Great Outrage60 and Limetown,61 which depict Bedley Brothers,65 a podcast that suggests innova-
seductive and viral dystopias (Smith, 2018). In tive and surprising pedagogical strategies.
fact Limetown was adapted to the small screen.
Of course, there are a huge number of informa-
All podcasts, including those with an educa- tive podcasts targeted at students out there. For
tional, training or promotional focus, should example, The Explainer66 is a Mexican initiative
aim to have a script that will entertain and hook that imparts scientific information aimed at all ac-
Digital Trends in Culture

people. This is what entertainment podcasts ademic levels. Similarly, we have Sciences,67 one of
teach us. The history of podcasting on a global the most popular educational podcasts in Spanish
level has shown that this is a good part of the that explains the latest developments in scientific
formula for success when it comes to audio research. As we have said, all the podcasts aspire
production (Guberto, 2018). It is precisely the in one way or another to be entertaining and
elements of an entertainment podcast that can this makes them as user-friendly as possible.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 99

 Similarly, some audio experts such as Josh Clark groups and even written media have favoured
and Charles W. ‘Chuck’, authors of Stuff You the podcast as a means of offering content,
Should Know,68 use pop culture references to make diversifying formats and thereby attracting an
scientific concepts easier and more accessible. audience which its original format – for example,
The informal style and usefulness of their podcast written media – was unable to reach.
has earned it several prizes and it is frequently on
the most-downloaded iTunes list. A great example of a globally successful informa-
tion podcast is one made by The New York Times71
Nowadays, almost all universities have launched that has seven million listeners a month, according
their own podcast initiative to grab the attention to Podtrac.72 The legendary newspaper surprises
of students with the students themselves as the us in the 21st century with initiatives that would
protagonists. Edinburgh Napier Radio69 is one probably have been unthinkable just 10 years
example of the podcasts made for Edinburgh back. In its audio format, The New York Times
University students. Created by the lecturers has recorded part of the information contained
and a couple of students, it contains serialised in its written publications and even expands on
complementary material to help students add to the information with material that it would not
what they have learned in the lecture hall. otherwise have been able to offer the public.

But the podcast can be a teaching tool beyond But information can be presented in very differ-
school and university. For example, there are ent formats. The podcast has triggered a revival
lists of subscription podcasts that make com- of radio genres that might have died out such as
pelling listening for businessmen, marketing the audio documentary.
departments and entrepreneurs70 as they offer
integrated and up-to-date information on the
latest trends in the sector. Each episode presents The audio documentary,
us with new data, new analyses and also new the diamond of the
tools that facilitate professional development. information podcast

The podcast can be used for educational pur- This genre is one of the most elaborate but also
poses but also to keep people informed on past one of the richest and most appealing to the
and present developments, which is why the listener. Perhaps the most famous documentary
informative podcast has been so successful. podcast in recent years has been Serial73 from the
makers of This American Life,74 the brilliant radio
show that is available from 500 radio stations in
The Information Podcast the US.

The podcast continues to imitate its predecessor

– the radio. If, as we have seen, a podcast can’t
offer the immediacy of radio, it does meet the
aim of informing. This is why, despite offering
on-demand content, information podcasts are
Digital Trends in Culture

among the most relevant to current issues.

While cultural or entertainment podcasts have
been predominantly individual initiatives, created
by people with a specific talent, the information
podcast has been staunchly backed by the busi-
ness sector. Radio companies, communication This American Life team. Photo: Meredith Heuer75

100 THE PODCAST IN THE CULTURAL SECTOR · ISAAC BALTANÁS

In Spain, Podium Podcast surprised us again with with the most typical feature of a podcast – its
The State Sewers76 that covers in-depth inves- free availability as a mass media.
tigations, offers contrasting points of view and
exposes political conundrums long since swept Paradoxically, the most visual arts such as paint-
under the carpet. ing, sculpture, dance, theatre and architecture
have also found a means of promoting them-
Driven by the BBC, the UK has had a category of selves and attracting devotees using the podcast.
audio documentary on radio for several decades. But the most listened to of all podcasts on a
These documentaries are now being reformatted global level are those providing entertainment.
as podcasts for all to enjoy at their leisure. In Wonderful shows whose structures are a model
France, The Making of History,77 perhaps the for other kinds of podcasts seeking to hold the
most institutional of all the podcasts mentioned, attention of the listener have been created. The
attracts more listeners with each episode. Pro- producers of educational podcasts, for example,
moted by Radio France, this is a discursive audio have taken their cue from them, discovering a
production that is now a beacon of its kind in vein in which to design complementary content
Europe. In each episode, it explores historical facts for the educational sector while at the same
and analyses a number of curiosities in depth. In time helping students to consolidate what they
the same vein, we have Earshot78 in Australia and have learned.
Tall Takes Takeway79 in India. In Latin America, the
most renowned podcast of this type is Walking Teaching is all about information and the
Radio,80 which the US National Public Radio has podcast is an interesting distribution channel
made available via its posts. as much for basic knowledge as for in-depth
reports. Consequently, we have at our disposal
All these podcasts, once published, turn into excellent audio documentaries.
historical archives, with objective analysis on the
most curious items of news of each country’s Finally, the podcast is the perfect vehicle to
society. News on the radio and analysis of that explore and examine micro niches or very
news in a podcast is the perfect info duo. specific areas of interest, which means they can
probably be adapted to whatever the cultural
sector needs in the next few years.
Conclusions

The podcast is an on-demand audio format that Bibliography

has evolved due to social and technological
changes that came about at the start of the 21st Godin, Seth, Tribus: Necesitamos que TÚ nos
century. The podcast is so flexible that each and lideres, 2009.
every art genre has found a way of exploiting
it as a promotional and broadcasting tool. The Guberti, Marc, Podcast Domination, 2018.
world of books has found the ideal companion
to create meeting points between writers, Maron, Marc, Waiting for the Punch, 2017.
publishing houses and readers. Audio books also
Digital Trends in Culture

have a natural ally with which to promote their Smith, Cote, Limetown: The Prequel to the #1
contents. We could say the same for podcasts Podcast, 2018.
on music, if it weren’t for the legal framework
concerning authors’ rights that does not concur Woessner, Stephen, Profitable Podcasting, 2017.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 101

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lesson-plans/project-audio-teaching-students-
how-to-produce-their-own-podcasts.html https://www.rug.nl/education/international-stu-
dent-blog/blog-07-04-2018-10-best-podcast-
http://www.readingrockets.org/article/creat- picks-from-a-university-student
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https://www.teachthought.com/education/50-
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my-favorite-podcasts-for-teachers/
https://www.edutopia.org/podcasting-stu-
https://www.thepodcasthost.com/enradio dent-broadcasts

https://www.wamda.com/2018/12/pod- https://www.learnoutloud.com/Podcast-Di-
casts-digitising-oral-tradition rectory/Self-Development/Instructional/
KidCast-Learning-and-Teaching-with-Podcast-
ing-Podcast/23111
Tweets
http://www.teachhub.com/technology-class-
https://twitter.com/aormaechea room-how-why-use-podcasts

https://twitter.com/ViaPodcast https://thecornerstoneforteachers.com/12-of-
my-favorite-podcasts-for-teachers/
https://twitter.com/alonsodeblas
https://www.realinfluencers.es/2016/10/25/
https://twitter.com/mmarianop los-mejores-podcasts-de-educacion/

https://twitter.com/Podnews https://www.finalsite.com/blog/p/~board/b/
post/5-steps-to-start-a-school-podcast
Digital Trends in Culture

https://twitter.com/podcastplaylist

102 THE PODCAST IN THE CULTURAL SECTOR · ISAAC BALTANÁS

 20 https://itunes.apple.com/us/podcast/gu-
Notes
iones-adaptados
1 https://www.bbc.co.uk/sounds/help/what-are-
21 https://www.podiumpodcast.com/negra-y-crimi-
podcasts nal/
2 https://www.theguardian.com/media/2004/
22 http://www.rtve.es/alacarta/audios/litercast/
feb/12/broadcasting.digitalmedia 23 http://alaaventura.net
3 https://www.apple.com/news- 24 https://player.fm/series/podcasts-de-letras-libres
room/2005/06/28Apple-Takes-Podcasting-Main- 25 https://www.podiumpodcast.com/grandes-en-
stream/ trevistas/
4 https://www.interaction-design.org/literature/ 26 http://urbanitasentreversos.blogspot.com/
article/understanding-early-adopters-and-custom-
27 https://poesiaalpasopodcast.wordpress.com/
er-adoption-patterns
28 https://player.fm/series/poemas-peruanos
5 https://www.theguardian.com/media/2004/
feb/12/broadcasting.digitalmedia 29 https://player.fm/series/podcast-tiempo-de-pal-
abras-87747
6 https://www.theguardian.com/media/2004/
feb/12/broadcasting.digitalmedia 30 https://espacio.fundaciontelefonica.com/noticia/
es-lo-mismo-leer-que-escuchar/
7 https://www.accioncultural.es/es/anu-
ario-ac/e-de-cultura-digital-2018 31 http://podcastpro.audio/blog/monetizar-el-pod-
cast
8 https://www.wamda.com/2018/12/podcasts-digi-
tising-oral-tradition 32 https://www.storytel.com/es/es/audiolibros
9 https://retina.elpais.com/retina/2017/08/16/ 33 http://cadenaser.com/ser/2018/06/08/cul-
talento/1502882196_927196.html tura/1528457871_240596.html
10 https://www.ivoox.com/en/escuchar-audios-al- 34 https://itunes.apple.com/us/podcast/pop-shop-
ex-hernandez-puertas_al_438_1.html podcast
11 http://play.cadenaser.com/seccion/la_ventana_re- 35 https://www.nytimes.com/column/pop-
latos_en_cadena/ cast-pop-music-podcast
12 https://escueladeescritores.com/concurso-cade- 36 https://eramagazine.fm/
na-ser/ 37 http://www.elacomodador.es/
13 https://triunfacontulibro.com/ 38 https://www.ivoox.com/en/
14 https://escritoremprendedor.com/ 39 https://en.wikipedia.org/wiki/Sociedad_Gen-
15 http://www.confessionsofabookaddict. eral_de_Autores_y_Editores
com/2016/03/spotlight-on-beaks-and-geeks-and. 40 http://www.elcinedeloqueyotediga.net/
html 41 http://cadenaser.com/programa/la_script/
16 https://www.penguinrandomhouse.com/beaks- 42 http://www.movistarplus.es/lascript
geeks
43 https://www.sfmoma.org/raw-material/
17 https://itunes.apple.com/us/podcast/escri-
tores-exigentes/id1265802947?mt=2
44 https://www.si.edu/sidedoor
Digital Trends in Culture

18 http://caracol.com.co/programa/el_club_de_lec-
45 http://thememorypalace.us/
tura/ 46 https://blog.rtve.es/apuntesdecineyteatro/
19 https://itunes.apple.com/us/podcast/la-bibliote- 47 http://www.rtve.es/alacarta/audios/la-sala/
ca-del-te 48 http://www.honestactors.com/

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 103

 49 https://theaterppl.com/ 66 https://www.ivoox.com/en/podcast-el-explica-
50 http://actorceo.com/ dor_sq_f138665_1.html

51 http://insideacting.net/
67 http://cienciaes.com/

52 https://un-minuto-en-nueva-york.tumblr.com/
68 http://www.stuffyoushouldknow.com/podcasts

53 https://player.fm/series/series-2395591
69 https://www.thepodcasthost.com/enradio

54 https://player.fm/series/archispeak
70 https://www.entrepreneur.com/article/311282

55 http://oestadodaarte.com.br/a-escultura-grega/
71 https://www.nytimes.com/spotlight/podcasts

56 https://www.podomatic.com/podcasts/territorios
72 http://analytics.podtrac.com/industry-rankings/

57 https://elterrat.com/radio/nadie-sabe-nada/
73 https://serialpodcast.org/

58 http://marcmeetsobama.com/
74 https://www.thisamericanlife.org/

59 http://marcmeetsobama.com/
75 https://www.vanityfair.com/hollywood/2015/09/
serial-podcast-second-season-sarah-koenig
60 https://en.wikipedia.org/wiki/Limetown
76 https://www.podiumpodcast.com/v-las-cloacas-
61 https://en.wikipedia.org/wiki/Limetown
del-estado/
62 http://www.santillanalab.com/proyecto-audio-es- 77 https://www.franceculture.fr/emissions/la-fabri-
colar/
que-de-lhistoire
63 http://eledelengua.com/archivo-podcast/ 78 https://www.abc.net.au/radionational/programs/
64 https://thecornerstoneforteachers.com/truth-for- earshot/
teachers-podcast/ 79 https://tttakeaway.libsyn.com/
65 https://bedleybros.podomatic.com/ 80 http://radioambulante.org/
Digital Trends in Culture

104 THE PODCAST IN THE CULTURAL SECTOR · ISAAC BALTANÁS

 FOCUS 2019:
CREATORS AND
AUTHORSHIP IN THE
DIGITAL AGE

Digital Trends in Culture

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 105

 Introduction

Having an effective system for protecting responses and solutions, carrying out intense and
intellectual property rights should be a priority decisive regulatory activity in the field of intel-
concern for any state, since the degree of lectual property, and have attempted to modify
guarantees and protection adopted by the latter rules and progress towards greater efficiency in
is a reflection of a country’s modernity and the their enforcement.
health of its legal development, as well as its
economic and cultural progress. Concentrating on this passionate and complex
legal challenge, this second part of the publica-
In this connection, when surveying the state tion, Focus 2019, sets out to make readers think
of technology and its impact on intellectual and provides practical guidelines on some of the
property rights, it is necessary to remember a main copyright issues raised by new technologies
basic feature of Spain’s legal system, namely that that affect creators and their rights. Adopting
the Constitution provides maximum protection strict and firm respect for authorship, it begins
to creative freedom in the literary, artistic, with an article on ‘Use of copyright and respect
scientific and technical fields as a fundamental for authorship: plagiarism and appropriate use
right (Article 20.2), and to private property (the of the quotation limit’ (Rosa de Couto Gálvez),
Creators and Authorship in the Digital Age

scope of Article 33 includes private ownership of a topical and controversial subject. The article
intangible objects). The Constitution protects highlights ‘authorship’ as a core aspect of intel-
freedom to create, and the result of this free- lectual property rights and analyses what consti-
dom: intellectual property, ownership and rights tutes plagiarism or the unlawful appropriation of
over the product of the exercise of a person’s the authorship of someone else’s work; what can
freedom and the creativity. be plagiarised, defining plagiarists and plagia-
rised authors; and what constitutes evidence
Given this complex web of social, legal, political of plagiarism. It likewise studies good practice
and technological factors, over the past two in the legal use of the quotation limit and the ap-
decades lawmakers have been working on propriate and respectful exercise of authorship,

106 Introduction
which entails compliance with the requirements for the company. The issues discussed range
established in article 32 of the consolidated text from employers’ duty to inform employees of
of Spain’s Intellectual Property Law. their obligations in terms of intellectual property
and the proper use of technological resources at
The next article, ‘Preventive and probative their disposal in the workplace to employees’ ob-
measures for the legal protection of intellectual ligation to collaborate and respect the intellec-
property works: Intellectual Property Registry, tual property rights that the company acquires
copyright symbols ©, ISBN, ISSN and legal to a work that is the product of the employment
deposit’ (Rosa de Couto Gálvez), examines the relationship and is protected by these special
systems that protect intellectual property rights, rules on intangible assets and by intellectual and
providing examples of good practice related to industrial property rules.
prevention and protecting rights and ownership
before a dispute arises, instruments of legal The next topic to be analysed is ‘Good practice
certainty such as the Intellectual Property and procedures for protecting the intellectual
Registry which establishes, as a preventive and property rights to content in the digital age’
probative measure, the legal presumptions of (José Manuel Tourné). The article explores how
ownership (of the subject registered as author difficult and costly it is to produce any work,
or owner), and the presumptions of existence from a film or video game to a song or book,
and accuracy of the registered rights. This article and the significant creative effort involved. The
indicates what kinds of works can be registered, success of these endeavours is hampered by
all those which are protected by intellectual piracy, whose sole purpose is to save money, as
property legislation, such as literary, artistic, analysed by the Coalition of Content Creators
visual, musical and audiovisual creations, videog- and Industries, according to which more than
ames, multimedia works, computer programmes, 50% of users who access pirated content do so
designs and plans, among others. It lists those because they are unwilling to pay for something
which are registrable and the requirements for that they might not like or because they are
each one, as well as good practice in registration. already paying for the Internet connection and
do not want to spend more.
Another article takes a look at ‘Judicial measures
vis-à-vis the infringement of intellectual property The Focus ends with a highly topical subject:
rights’ (Isabel Fernández-Gil) that can be used if ‘Blockchain and smart contracts. Legal implica-
these rights have been violated and the method, tions in the field of intellectual property’ (José
means and form of carrying them out through the María Anguiano), which also studies ‘smart
various channels provided by the legal system. property’ or ‘crypto-property’, an effective means
of exchanging money that is also applicable to
The following article deals with the intellectual intellectual property works and rights, which
property rights to a work arising from employ- can be transferred using this protocol by ‘to-
Creators and Authorship in the Digital Age

ment activity and the accountability of compa- kenising’ the asset or right to be transferred.
nies and workers, as well as the proper exercise Tokens in a digital environment are simply ‘data’
of technological supports or tools, in the study (information) that represents assets or rights and
on ‘Intellectual property and compliance. Good operate in a similar way to securities; therefore,
use of technological resources and account- possession grants ownership of that particular
ability’ (Vicente Navarro). This article proposes asset or right and makes it possible for the
good practices in compliance with the rules of owner to dispose of it by transferring it to a new
intellectual property and the protection of the owner through ‘smart contracts’. The essay also
organisation’s intangible assets – its intellectual analyses how smart contracts are finalised and,
property rights, which have an economic value accordingly, verified.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 107

 Rosa de Couto Gálvez Isabel Fernández-Gil Viega

Professor at the Faculty of Law of the Universidad Isabel Fernández-Gil Viega has been practising law
Pontificia Comillas ICAI-ICADE, with a doctorate in Law since 1982 and has been adjunct lecturer in Civil Law,
from the Universidad Carlos III in Madrid; president initially at the Universidad Carlos III in Madrid until
Creators and Authorship in the Digital Age

(March 2012 to December 2015) and member (since 2005 and since then in the Department of Private Law
December 2015) of the First Section for Mediation and at the Universidad Pontificia Comillas (ICADE), where
Arbitration of the Intellectual Property Commission she teaches civil law subjects. She is also the director of
attached to the Spanish Ministry of Culture and Sport. the university masters degree in Intellectual Property at
Since 2002 she has been a corresponding member of this university, where she teaches and also collaborates
the Real Academia de Jurisprudencia y Legislación, by giving lectures for the masters degree in Access to
and a member of the 16th Section on Property the Legal Profession, and is a tutor for the bachelors
Registry Law. Director of the masters on Intellectual and masters degree dissertation projects carried out
Property at the Universidad Pontificia Comillas and the by the students. Her research work is focused on the
university’s higher course on Intellectual Property. study and protection of intellectual property rights.

108 Introduction
1. Copyright use and respect for authorship:
plagiarism and appropriate use of the
quotation limit

Rosa de Couto Gálvez

1. Introduction
of ‘author’: ‘The individual who creates any […]
This survey of the legal system of copyright work shall be deemed the author thereof’.
begins with an essential statement: recognition
of and respect for authorship is the backbone of It thus establishes and lists the necessary requi­
intellectual property. Strict and firm respect for sites for a work to be protectable and defines
authorship entails having a robust and secure and clearly protects ‘authorship’, granting it not
legal system for protecting intellectual property only economic but also moral rights linked to the
rights. Authorship has been defined since the exercise of a subject’s creativity, intelligence and
very first intellectual property legislation in Spain creative freedom. These moral rights are inalien-
– a reflection of international and European able, non-transferable and of unlimited duration.
law; article 1 establishes that ‘the intellectual
property in a literary, artistic or scientific work Authorship is regulated among moral rights,
shall pertain to the author thereof by virtue of which protect and link the author to the pro-
the mere fact of its creation’ (from the consoli- tected work as a result of their freedom and
dated text of the Law on Intellectual Property, creative personality. In this sense, authorship is
Creators and Authorship in the Digital Age

1996).1 The work must be original and expressed the main moral right of intellectual property, and
in some format, and from this moment onwards is non-transferable and inalienable. Authorship is
the author is the sole and exclusive holder of the foundation of intellectual property rules and
the intellectual property rights, as a special regulations. For all the above reasons, unlawful
property, including moral and economic rights, appropriation of the authorship of another
which are enforceable erga omnes, such as right person’s work, plagiarism, is the most serious
of reproduction, distribution, communication infringement of intellectual property rights be-
to the public and transformation. And article 5 cause it affects the principal right of the author.
of the same text establishes the legal definition

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 109

 2. Unlawful appropriation of the plagiarist’s work is published, also damaging
somebody else’s work: definition the right of reproduction), the right of communi-
of plagiarism. Criminal and civil cation to the public (when the plagiarised work
liability of the plagiariser is disseminated over a network) and the right of
transformation (plagiarism of parts of the work
The rules of intellectual property, criminal law when it is translated into another language).
and judicial decisions expressly and firmly grant
special protection against this serious unlawful
act, establishing rules on criminal (Article 270.1 2.1. Criminal liability of the plagiariser
of the Criminal Code, Organic Law 1/2015) and
civil (consolidated text of the Intellectual Prop- Unlawful appropriation of the authorship of
erty Law and international regulations) liability. somebody else’s work, that is, plagiarism of a
Not only does plagiarism harm the author; in the work protected by intellectual property legisla-
eyes of legislation and case law, plagiarism is also tion, is established or defined as an illegal action
a form of deceit and social fraud and as such is under criminal law. In Spain this is regulated by
unlawful and punishable. article 270.1 of the Criminal Code (amended by
Organic Law 1/2015 of 30 March).2
From a criminal law approach or definition, it is
established as a serious criminal offence against
the authorship of a protected work (visual/ 2.2. Civil liability of the plagiarist
plastic art, musical, scientific, literary, web pages,
videogames, computer programmes, multimedia, When plagiarism has occurred, the actions the
audiovisual, cinematographic works, etc.). And wronged party can bring are civil liability actions,
the civil definition of plagiarism, a civil wrong, such as demanding compensation quantifying
is encompassed by the rules of intellectual the moral damage caused by the unlawful act
property, which establish it as an unlawful act committed by the plagiarist by appropriating
against the recognition of the authorship of the authorship of someone else’s work, and the
a work protected by national, European and economic damage caused by exercising rights
international intellectual property legislation. that do not correspond to them (particularly the
Plagiarism is likewise also classed as deceit and a rights of reproduction, distribution and commu-
social fraud. nication to the public).

Plagiarism is the most serious injury to intellec- The civil actions that can be brought, besides
tual property rights, since it affects authorship, claiming economic losses arising from unautho-
which is the main moral right of intellectual rised exercise of rights, also include reparation
property, being non-transferable and inalienable, of the moral damage caused by plagiarism,
and the basis of copyright rules and regulations. for appropriating someone else’s authorship;
Creators and Authorship in the Digital Age

legislation and case law establish a quantification

It should not be forgotten that the appropriation that effectively repairs the damage caused to
of someone else’s authorship, namely plagiarism the moral right of authorship pursuant to article
– an offence under both criminal and civil law – 140 of the consolidated text of the Intellectual
triggers a breach of moral rights (recognition of Property Law (1996): even if the existence of
the authorship or integrity of the work, among economic damage caused by the offence (plagia-
others), and economic rights, generally the right rism) has not been proven, the damage can be
of reproduction (for example, copying of the compensated for, and the following factors will
plagiarised work), the right of distribution (when be taken into account when calculating it:

110 1. COPYRIGHT USE AND RESPECT FOR AUTHORSHIP

 a) The circumstances of the infringement (for 2.3. If the work is published.
example, if the plagiarism was carried out Liability of the publisher
in a university or research environment).
To avoid liability in the event of plagiarism,
b) The seriousness of the harm done (for where there can be both civil and criminal
example, literal or repeated plagiarism of liability, contracts for the publication of a work
several parts of different works, or plagia- generally establish clauses exonerating the pub-
rism of many paragraphs of the work, even lisher from liability; these are expressly agreed
if the plagiarised article is translated into upon (usually in the first clause of the publishing
another language). contract).

c) The degree of unlawful dissemination of There are numerous judgements that do not
the work (for example, if the plagiarised recognise the publisher’s criminal liability but do
reproduction can be Googled, or if the hold them economically or civilly liable.
plagiarist’s work is published and distrib-
uted in other countries as well as Spain).
3. Unlawful appropriation of the
And with respect to the quantification of the authorship of someone else’s
economic compensation for the exploitation work: plagiarised and plagiarists
rights exercised, the law employs a modern, ob-
jective criterion that reflects European systems All authors of works protected by intellectual
such as that of Germany, giving the aggrieved property rights can be harmed by the unlawful
party the option of choosing from the following appropriation of authorship of their work,
alternatives: whether this authorship is individual, collective
or joint. For example, an author of a scientific
1. The aggrieved party or plagiarised author work written in collaboration with a research
can claim economic damage, or lucrum group may find that their part of the authorship
cessans (loss of earnings: difference bet­ of the work has been subjected to plagiarism.
ween current wealth and that which they
would otherwise have obtained). A special case is authors who sign with a
pseudonym, or anonymous works. They, too, are
2. They can claim the earnings obtained by protected by the rules of copyright, although
the plagiarist (the earnings of the person proving authorship may pose a problem.
who committed unlawful plagiarism).
In other cases, ignorance of authorship (‘orphan
3. They can claim the market value (objective works’) makes the protection of authorship more
criterion) of the rights to the plagiarised vulnerable. But not knowing who the author is
Creators and Authorship in the Digital Age

work, the money the aggrieved party no excuse for allowing or facilitating the appro-
would have received for exercising their priation of someone else’s intellectual creation or
rights if the plagiarist had requested a creative activity.
licence and paid the established fees.
As for the person who performs the unlawful act
of plagiarising, plagiarism, it can be carried out
by anyone who appropriates someone else’s cre-
ative activity, the authorship of a work protected
by intellectual property rights.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 111

 Plagiarism is equally unlawful whether it is It is important to assess and examine how the
carried out directly by the plagiarist or on the work is externally expressed – the expression
orders, or on behalf, of another person. Whoever used by the creator, by the author, the form of
passes off somebody else’s work as their own, be the author’s written, visual, musical, audiovisual,
they a natural or legal person, is liable. artistic or scientific expression that will prove
the connection with their personality or creative
Is it possible for a person to appropriate some- activity and will be presented in a medium.
body else’s work with the consent of its author?
The transfer of authorship is inadmissible, either And another essential element is comparative
for a cost or free of charge. Certainly, it is more proof of the degree of similarity (literal or sim-
difficult to prove, since the original author is not ulated plagiarism) between the protected work
going to make a claim. However, as it entails (original and externally expressed) and the work
an offence of fraud or deceit of society, it is an resulting from plagiarism (the plagiariser’s work),
unlawful act with liability. by having experts or technicians analyse and
attest to the degree of plagiarism.

4. Proof of authorship, proof

of the plagiarised work, and 4.2. Proof of authorship
proof of the act of plagiarism
Authorship of the plagiarised work is determined
by any means of proof that demonstrates that
4.1. Proof of the plagiarised work the original, protected work was produced
and the work resulting from the first and that it corresponds to the author who
plagiarism (plagiarist’s work) signed it (presumption of authorship), whereas
the work resulting from plagiarism was produced
In a situation of unlawful appropriation of the later.
authorship of someone else’s work, the first con-
sideration is that evidence needs to be obtained Other means that legally prove the authorship
to prove whether or not the plagiarised work is of the protected work (such as the Intellectual
protected by intellectual property rights. For this Property Registry) or provide information about
purpose, the two necessary requirements for a its earlier existence, and can be submitted as
work to be protected by copyright need to be evidence in a plagiarism lawsuit or dispute, are:
assessed: originality or the author’s connection
to the work (novelty is not required) and the ex- • Registration of the plagiarised work in the
ternal expression of the work in some medium. Intellectual Property Registry, as a means of
Originality is construed as the work’s connection legal proof of the authorship of the regis-
with the author (not in the sense of novelty), as tered owner (presumption of ownership,
Creators and Authorship in the Digital Age

an expression of the author’s creativity, and its presumption of existence and accuracy of
external expression as a form of presenting this registry records, of the rights and ownership
creative activity in a medium. recorded in the Registry).

That is why works containing sections that are • Earlier publication or edition of the original
common knowledge or lacking in originality are work.
not protected, because they are a mechanical
result that does not involve creative intelligence. • Proof that the protected work was exhib-
ited at an earlier date than the plagiarist’s
work.

112 1. COPYRIGHT USE AND RESPECT FOR AUTHORSHIP

 • Registration of the work with the related the author in such cases. In the event the author
management agency (Vegap, SGAE, AIE, is not found, the work can be digitised and
Egeda, Cedro, etc.). accessed online, limiting its public use but never
appropriating the authorship of the orphan work
• Notarial records, submittal of the work to by an unknown author as this still constitutes
be incorporated in a notarial document, to plagiarism, a criminal and civil wrong.
prove the earlier date, the contents of the
work and the author who signs it.
4.3. Proof of the act of plagiarism
• Any means that proves the earlier existence
of the plagiarised work and that it corre- That is, proof of the unlawful appropriation of
sponds to its author. the authorship of someone else’s work.

• Means providing information on authorship There are various types that have been identified
and rights, such as the copyright symbol ©, in the many judicial decisions issued on plagia-
the legal deposit, the ISBN, or the ISNN. rism:

Each of these means involves an expert’s report • Plagiarism can be literal, concealed, partial,
confirming that the plagiarised work existed or total.
at an earlier time compared to the plagiarist’s
work. For example, recordings made on the hard • Some types have particular features relating
disk of a computer or on a recording device that to the plagiarised object or work.
attest to the earlier existence of the documents
that gave rise to the protected and plagiarised • In other cases, these particular characteris-
work are admissible as evidence in a trial. tics stem from the plagiariser.

In other cases, when the work in question was • The activity that constitutes plagiarism will
produced jointly or is a collaborative effort differ in scope depending on the rights that
involving several authors, in order to avoid the are infringed by the reproduction, distribu-
problem of improper identification of authorship, tion and communication to the public of the
it is necessary to specify the authorship clearly work resulting from plagiarism.
and unmistakeably in each part or article of the
final work. Similarly, when a text is signed jointly • In other cases, the seriousness or extent
by several authors, this joint authorship must be of the plagiarism will stem from the fact
perfectly defined and established. For example, that several works have been plagiarised
in a research group it is necessary to prove and (volume or number of works that have been
define the authorship of the parts of the result- plagiarised) and/or that the plagiarist has
Creators and Authorship in the Digital Age

ing scientific work, or of the portion of joint plagiarised several works.

authorship that corresponds to each author.
• The seriousness of the activity carried out
It should not be forgotten that in the Spanish by the plagiarist also resides in the fact that
legal system, which is a reflection of European they infringe the right of transformation,
directives, ‘orphan works’ – by an indeterminate and transform the plagiarised work into
author or authors – are more vulnerable to another language or convert a written work
unlawful plagiarism and breaches of copyright. to audiovisual format, appropriating the
This is why a procedure or protocol has been authorship.
legally established to help search for and identify

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 113

 • The seriousness of plagiarism also lies in whether the act of plagiarism was committed on
whether the plagiarist’s work is dissemi- a part or on the whole, literally or in a concealed
nated over the Internet (the seriousness manner, on one or several of the author’s works,
stems from the simultaneous performance or if there is multiple plagiarism – that is, there
of the illegal act of plagiarism in time and are several works resulting from plagiarism – and
space). if the work resulting from the plagiarism has
been disseminated in a network. The act of
The act of plagiarism or the illegal appropriation plagiarism and its scope or seriousness will be
of the authorship of someone else’s work causes determined:
irreparable damage to moral and economic
rights. Defining the rights violated by plagiarism • By proof of the ‘appropriation’ by a subject
helps establish the compensation that the author (plagiarist) of the ‘authorship’ of somebody
is entitled to receive: reparation for moral dam- else’s work.
age and financial compensation or reparation for
the plagiarist’s unlicensed exercise of rights. • By proof of ‘unlawful action’ in the form
of ‘appropriation of authorship’, on part or
The main right from which the breach of all the whole of the plagiarised work, literally
others stems is authorship of a work, which is or in concealed (disguised) fashion, causing
the result of creative activity and is protected serious damage to the author and to soci-
by the rules of intellectual property from the ety. If we remember that authorship cannot
moment of its creation. Therefore, the following be transferred, it constitutes an offence in
are affected by plagiarism: any event.

• The moral right of authorship of the work. • By proof of ‘the existence of one or several
works resulting from plagiarism’.
• The moral right of integrity of the work.
Partial plagiarism and infringement of the • By proof of the ‘exploitation rights’ exer-
right of transformation (for example, the cised (harmed) by the plagiarist: reproduc-
plagiarist’s work is translated into another tion of the plagiarist’s work or works.
language other than that in which the
original plagiarised work is written). • By proof of ‘the distribution and public
communication made by the plagiarist’:
• The economic right of reproduction. for example, when the plagiarist has given
lectures on a plagiarised publication, they
• The economic right of distribution and have disseminated the works resulting from
communication to the public. their plagiarism on the Internet (written,
music, visual, audiovisual and scientific
Creators and Authorship in the Digital Age

• The economic right of transformation. works, video games, computer programmes,

Unlawful authorship of a work that is ver- etc.).
sioned (and in this sense, the moral rights of
authorship and the right to integrity are also • By proof of the ‘seriousness of the offence’
violated). of plagiarism, in terms of the number of
times plagiarism has occurred, of what
It is necessary to prove that the act of appropria- works, in what environment, and the imme-
tion or plagiarism was committed and to es- diate dissemination in time and space of the
tablish the seriousness of the offence and of its plagiarised works (Internet).
content and scope. It must also be established

114 1. COPYRIGHT USE AND RESPECT FOR AUTHORSHIP

5. Respect for authority: appropriate teaching or research purposes and to the extent
exercise of the limitation on quoting justified by the purpose of the inclusion, and the
from a work. Article 32 of the TRLPI source and the author of the work’s name shall be
stated.
In legislation that grants maximum respect for
authorship and also facilitates teaching and Continuing to define the scope of the limit on
research work, article 32 of the consolidated text quotation, the second paragraph of article 32.1
of the Intellectual Property Law (Texto Refun- states that:
dido de la Ley de Propiedad Intelectual, herein-
after TRLPI), like European legislation, regulates Periodic compilations made in the form of press
the legal limit on citing the author and source of summaries shall be deemed quotations. The
an intellectual property work, for teaching or re- aforesaid notwithstanding, if compilations of
search purposes, provided that the work quoted press articles are carried out basically consisting
from has been made available to the public. It of the mere reproduction thereof and such an
states that excerpts from somebody else’s work activity is carried out for commercial purposes, the
may be used, respecting their authorship (by author who has not expressly opposed this shall
clearly identifying the author), or isolated works be entitled to receive an equitable remuneration.
of three-dimensional or photographic nature, as In the event the author expressly indicates his
long as they are included by way of quotation or opposition an activity shall not be deemed covered
for analysis, comment or critical assessment. by this limitation.

First and foremost, quoting from a work entails The above case therefore constitutes unlawful
using part of the work, but respecting the au- appropriation of the authorship of somebody
thorship, because the author is unquestionably else’s work, plagiarism, as it entails inappropriate
identified. This legal limit on quotation is regu- or non-existent use of quotation. Breach of the
lated in article 32 of the TRLPI and permits the rules on quotation, of the legal requirements
use of a protectable work, without the consent that constitute legal use of the works for quota-
of its author or the holder of intellectual property tion pursuant to article 32 of the TRLPI has the
rights. However, the main problem consists in de- legal consideration of plagiarism, because the
termining how a work can be quoted from while authorship of the work used by the plagiarist
appropriately ensuring that the author’s rights is not identified, or is identified incorrectly.
are protected. The answer is easy: it lies in article The authorship of the paragraphs, images,
32, which specifies the legal requisites for citing text, three-dimensional, visual, musical, cine-
from a work in a legally permitted manner and matographic or multimedia work, web content,
defines the circumstances under which quotation etc., is not specified clearly. The plagiarist does
is permitted and for what purposes. The first not respect or identify the author, and deceives
paragraph of article 32.1 thus establishes that: readers by passing off another author’s intellec-
Creators and Authorship in the Digital Age

tual property as their own.

It shall be lawful to include in one’s own work
excerpts of the works of others, whether of Occasionally, improper use of the quotation
written, sound or audiovisual character, and also limit, an appropriation of another person’s work,
to include isolated works of three-dimensional or make take the form of excessive quotations – in
photographic, figurative character, provided that terms of their frequency or length – and the re-
the works concerned have already been made sulting work may be classified as possible plagia-
available to the public and that they are included rism if it contains constant, repeated references
by way of quotation or for analysis, comment or to a single work, and quotes extensively from the
critical assessment. Such use may only be made for original text.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 115

 We should also add an essential criterion – and works should be cited, as being used for ‘the
which is obvious from the scope of Article 32 of sole purpose of informing’ on current events.3
the TRLPI – that reproducing part of a work as
one’s own and only including a reference to the
author and original source at the end of the work 6. Conclusions
in the ‘bibliography’ sections constitutes plagia-
rism, not quotation. There are many judgments Consequently, the unlawful appropriation of the
that firmly recognise plagiarism and failure to authorship of a someone else’s work, plagiarism,
respect authorship in cases where a text does is the most serious infringement of intellectual
not quote the author and work used to develop property rights, as it affects the main right of
the content and only includes a general mention ‘authorship’, the status of author, which is an
of the plagiarised author in the ‘bibliography’. essential, inalienable and non-transferable right
A sole reference in the bibliography implies an and core principle.
absence of quotations, as the plagiarised author
is not identified throughout the plagiarist’s work. In view of the foregoing, the Spanish intellectual
The original author is not identified and the property law establishes the plagiarist’s liability,
plagiarist intentionally creates confusion over with criminal provisions and judicial decisions,
the authorship. rigorously and firmly granting special protection,
and laying down regulations on criminal liability
Likewise, an improperly or poorly made quota- (Article 270.1 of the Criminal Code, Organic Law
tion that fails to provide clear information about 1 / 2015) and civil liability for this serious offence.
the authorship of the work used, that does not Not only does it harm the author, it also violates
identify the author, may also constitute unlawful the author’s personal connection with the pro-
appropriation of the authorship of another tected work. In addition, according to legislation
person’s work. and case law, plagiarism also constitutes deceit
and social fraud that is illegal and punishable.
Finally, it should be pointed out that the recent
amendment made by Law 21/2014 of November This criminally and civilly illegal appropriation of
4, which modifies the consolidated text of the authorship, or plagiarism, causes harm to moral
Intellectual Property Law of 1996, and the Civil rights (recognition of the authorship and integ-
Procedure Law (Ley de Enjuicamiento Civil), rity of the work, among others) and economic
proposes mechanisms for strengthening the rights, usually the rights of reproduction (copy
protection of intellectual property rights against of the plagiarised work), distribution (the plagia-
infringements in the digital environment, as rist’s work is published), communication to the
well as extending the scope of the legal limit on public (the plagiarist’s work is disseminated in a
quotation, summaries and illustration in teaching network) and transformation (parts of the work,
or research (article 32.2, with new sections 3, 4, 5) translation into another language).
Creators and Authorship in the Digital Age

carried out in the classroom, virtually and online,

and made available by gathering content pub- The actions that can be brought, besides claim-
lished in periodicals, provided that the author’s ing economic damages for unlicensed exercise
name is included clearly and unmistakeably. of rights, include reparation of moral damage
According to the ‘statement of reasons’ for the caused by plagiarism, the appropriation of
2014 amendment, in books and similar publica- authorship; legislation and case law establish a
tions the exception is extended in a new section quantification equivalent to the damage caused
3 of article 32, in accordance with the contents to the moral right of authorship, according to
of article 5.3. a) c) and 4 of Directive 2001/29/EC. article 140 of the consolidated text of the Intel-
Article 33 of the TRLPI refers to how authorship lectual Property Law (1996), taking into account

116 1. COPYRIGHT USE AND RESPECT FOR AUTHORSHIP

the circumstances of the infringement, the Álvarez Muñoz, Guadalupe, ‘El plagio científico’,
serious of the harm and the degree of unlawful Actualidad Médica, t. 103, no. 804, 2018, pp.
dissemination of the work. Moral damage is 106−7.
enforceable and quantifiable even if the exis-
tence of financial damage caused by the offence Echavarría Arcila, María Alejandra, ‘¿Qué es el
committed (plagiarism) cannot be proven. plagio? Propuesta conceptual del plagio punible’,
Revista Facultad de Derecho y Ciencias Políticas,
Likewise, another cumulative action that can no. 121, 2014, pp. 699−720.
be brought is claiming economic damage,
quantifying the financial compensation on the Gutiérrez Gutiérrez, Angélica, ‘El plagio literario’,
basis of the harmed exploitation rights exercised Derecho y Cambio Social, no. 23, 2011.
without the authorisation of the rightsholder,
for which the rule laid down in article 140 of Herrero-Cortell, Miquel Àngel, ‘Del sacar de
the TRLPI establishes a modern and objective otras pinturas. Consideración de las copias
criterion based on the European systems, pictóricas a la luz de los tratados y otros textos
providing for alternative forms of compensation del Renacimiento: reputación teórica versus
for the aggrieved party to choose from: either repercusión práctica’, Revista de Humanidades,
filing a claim for economic damage caused to the no. 35, 2018, pp. 81−106.
plagiarised author’s assets (loss of earnings for
the aggrieved party), or for the earnings obtained Llamas Pombo, Eugenio, ‘A vueltas con el plagio’,
by the plagiarist (earnings of the person who Práctica Derecho Daños: Revista de Responsabili-
commits plagiarism), or for the market value dad Civil y Seguros, no. 137, 2018, p. 1 and ff.
(money that the plagiarised author would have
obtained for exercising their rights according to Retondo, H., ‘Plagio, falsificación y piratería en la
established fees). propiedad intelectual’, I Congreso Iberoamericano
de propiedad intelectual, derecho de autor y dere-
We will end by adding that, in order to grant chos conexos en los umbrales del año 2000, vol. 2,
maximum respect to authorship while also Madrid, Ministerio de Cultura, 1991, pp. 981−90.
facilitating teaching and research work, as
well as the provision of information on current Ruiz Casanova, José Francisco, ‘Plagio y traduc-
events, article 32, reflecting European legislation, ción, o la traducción como plagio’, 1611: Revista de
regulates the legal limit on quoting the author Historia de la Traducción. A Journal of Translation
and source with respect to intellectual property History. Revista d’Història de la Traducció, no. 11,
works, especially for educational and research 2017.
purposes. It is permitted to use excerpts of
others’ works that are publicly available, re- Temiño Ceniceros, Ignacio, ‘El plagio en la era de
specting their authorship (identifying the author las nuevas tecnologías’, Revista de las Facultades
Creators and Authorship in the Digital Age

clearly and unmistakeably), or of isolated works de Derecho y Ciencias Económicas y Empresariales,

of three-dimensional or photographic character, ICADE, no. 78, 2009, pp. 177−92
provided that the quotations are used for analy-
sis, comment or critical assessment. — El plagio en el derecho de autor, Pamplona,
Civitas, 2015.

7. Bibliography Vega Vega, José Antonio, El plagio como infrac-

ción de los derechos de autor, Madrid, Reus, 2018.
Agúndez Fernández, Antonio, Estudio jurídico del
plagio literario, Granada, Comares, 2005.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 117

 2. Preventive and probative measures for
the legal protection of intellectual
property works: Intellectual Property
Registry, copyright symbols ©, ISBN,
ISSN and legal deposit

Rosa de Couto Gálvez

1. Introduction. The intellectual a) That our intellectual property rules are

property registry as a system for a reflection of international regulations
protecting intellectual property works and European legislation that protect and
harmonise copyright and related rights
Before beginning this article, I would like to (the scope and configuration of rights, the
share with readers a thought that will provide an regulation of limits, the establishment of
insight into the cause, purpose and scope of the legal or conventional remunerations, the
Intellectual Property Registry. In today’s world determination of subjective criteria and
every day we are greeted with news that encour- compensation objectives).
ages us not to respect, but to harbour misgivings
towards copyright protection, because the in- b) And that intellectual property rights are an
fringement of intellectual property rights is more integral part of the economic concept of
topical than ever. Now, at a time when there property. They are, therefore, real in nature
appears to be social awareness that the rights to and belong to the author (exclusively) or
intellectual creations belong ‘to everyone’ except rightsholder; they are enforceable against
the author, it is appropriate to recall that one of everyone (excluding the enjoyment of
Creators and Authorship in the Digital Age

the reasons why intellectual property rights are others, unless authorised by the author
not respected – and which gives rise to errone- or rightsholder); and registrable in the
ous and conflicting interpretations – is lack of Registry of Intellectual Property, with
knowledge of these regulations or of the special all the implications of publication in an
legislation on copyright and related rights, which official registry as an institutional system
date back to more than a century ago. of preventive protection and a means of
proof in the event of conflict.
Suffice it to recall that, among others, two of
the core principles of the Spanish Intellectual
Property Law are:

118 2. PREVENTIVE AND PROBATIVE MEASURES FOR THE LEGAL PROTECTION OF INTELLECTUAL PROPERTY WORKS
2. The registration of works as protection of their status as author or holder
declaratory of existing intellectual of intellectual property rights. The period for
property ownership and rights registering the published works was short,
one year. However, the registry system could
Registering intellectual property rights in this not be described as establishing ‘constitutive
special registry is a mechanism for ensuring legal registration’, but rather as regulating the ‘neces-
certainty and for publishing or declaring existing sary registration’, since the benefits of the law
ownerships and rights, as well as an effective extended back to the period prior to registration,
means of protection and of providing proof in provided registration took place.5
lawsuits or disputes.
Subsequent legislation established a preventive
It is unquestionable that the extent to which a registry system based on voluntary registration
country fosters intellectual creation and systems in the Intellectual Property Registry as a means
for protecting it is a relevant indicator of that of declaratory public registration of the intel-
country’s wealth and progress in the fields of lectual work, which already existed from the
culture, economy, science and politics. This is moment it was created. This rule is in keeping
the reason why lawmakers establish a measure with the provisions of international conventions
for providing works with institutional, public on copyright. Thus, the Registry is designed
protection – registry protection. Concern about as a public means of protecting intellectual
effective protection has always been evident, property rights relating to works, performances
and the first law on intellectual property referred or productions protected by the law, based on
to the need to register works in order to obtain registry organisation criteria: the public nature of
and fully enjoy the relevant rights. the Registry and the presumption that registered
rights exist and they belong to the holder in
Today, according to current copyright legisla- the form stated in the respective entry, unless
tion, going to the Intellectual Property Registry there is evidence to the contrary. These are the
is optional, and registering a work is a statement characteristics that define the Registry pursuant
of the ownership and intellectual property rights to Royal Decree 281/2003 of 7 March6 adopting
which existed from the moment it was created. the current Rules of the General Registry of
However, the legal scope of public registration Intellectual Property. Only two precepts, articles
is often unknown, even though it provides a 144 and 145 of the consolidated text of the
high degree of legal certainty and effectiveness Intellectual Property Law of 1996, recognise this
and is easily accessible and affordable for public protection mechanism.
anyone wishing to benefit from its regulatory
safeguard, registry protection, as it offers all the Before continuing with this study of the Intel-
beneficial presumptions of existence, accuracy lectual Property Registry, I would like to clarify
and ownership. a few legal concepts or situations that are far
Creators and Authorship in the Digital Age

from being registry systems. I am referring to the

In this first legislation, which has now been Arrow Project (Accessible Registries of Rights
repealed, the perspective provided by the 1879 Information and Orphan Works Towards Euro-
Intellectual Property Law, although imperative peana). This project has numerous advantages
in its approach, is nonetheless interesting as it with respect to cross-border information, but
established that ‘in order to enjoy the benefits lacks the scope and effectiveness of the public
of this Law’ it was ‘necessary to have registered registration provided by the Intellectual Property
the right in the Intellectual Property Registry Registry. The chief aim of the project was to
[…]’.4 That is, registration was compulsory for implement a model for gleaning information
anyone wishing to claim personal and economic about existing works that do not have a known

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 119

 author (‘orphan works’), and it grouped together helps ensure their smooth management and
national libraries, publishers, collective rights running.
management societies, and other holders of
intellectual property rights. Although it is an And, finally, registering rights in the Intellectual
interesting pan-European information system de- Property Registry provides legal presumptions:
signed to provide a practical and useful solution presumption of ownership (the subject whose
to an important real problem – because it aims name appears in the Registry is presumed to be
to make these works more accessible by digitis- the owner of the registered work) and presump-
ing them, while respecting existing copyright – it tion of the existence and accuracy of the regis-
is not a public instrument providing legal registry tered contents. Therefore, the scope and legal
protection. effectiveness of registration is considerable and,
as a public means of providing legal certainty, it
Some of the characteristics of this registry helps protect existing and registered intellectual
system have already been highlighted. In the first property rights for preventive and probative
place, an essential feature is that registration of purposes.
the works is established as voluntary and decla­
ratory. Artistic, literary or scientific works exist
and are protected by intellectual property rights 3. All works of intellectual
from the moment they are created (according property can be registered in the
to the general rules for any protectable work: Intellectual Property Registry
they must be original and expressed in some
way, according to the consolidated text of the Registering intellectual property works provides
Intellectual Property Law of 1996). It is also pos- protection for audiovisual, literary, artistic,
sible to regard the Intellectual Property Registry scientific and musical works, among others,
as a legal protection mechanism (preventive which are subject to copyright or related rights.
protection and means of evidence in litigation), Any work, provided it is original and expressed in
and its registered content is public (certifications, some medium, can be registered and protected
office copies), although there are significant in the Intellectual Property Registry. To cite an
differences with other registry regulations (for example that is rarely used but very common,
example, those of the Land Registry) regarding any research activity in human, social, technical,
form and who may request information about natural or health sciences that can be specified
what is registered in it. as an intellectual work that is original and
expressed in a medium, having its own identity
It should be added that it is based on a decen- as an independent work, can be protected by
tralised registry model: there are Territorial the rules of intellectual property and registered
Registries (Registros Territoriales) in the au- in the Intellectual Property Registry. All that
tonomous communities, which are responsible needs to be clarified is the case of a patentable
Creators and Authorship in the Digital Age

for processing and deciding on applications to scientific work, because according to article 4 of
register or annotate the intellectual property the Law on Invention Patents and Utility Models
rights of an author or rightsholder. However, the (Ley de Patentes de Invención y Modelos de
structure and organisation are established by a Utilidad), it already enjoys registry protection
single General Registry of Intellectual Property through the public registry system of the In-
(Registro General de la Propiedad Intelectual), dustrial Property Registry, currently the Spanish
which is made up of the Territorial Registries and Patent and Trademark Office (Oficina Española
the Central Registry (Registro Central).7 There is de Patentes y Marcas).
also a Registry Coordination Commission,8 which

120 2. PREVENTIVE AND PROBATIVE MEASURES FOR THE LEGAL PROTECTION OF INTELLECTUAL PROPERTY WORKS
Also, since the aforementioned Royal Decree • Assignment of the right to communicate
281/2003, there has been no legal doubt that it it to the public (for example, so that the
is also been possible to register videogames and assignee can disseminate the work in a
websites wholly or in part in this Intellectual network).
Property Registry as multimedia works.
• And/or assignments of the right to
What is actually published in the Intellectual transform the intellectual property work
Property Registry? According to the interpreta- (for example, so that the assignee can
tion of article 1 of the regulations of the Intellec- translate an existing work into another
tual Property Registry (Royal Decree 281/2003), language).
the entry is structured into two sections:

1. The registration or annotation of the rights 4. Who is entitled to apply for

related to works protected by intellectual registration or annotation of
property legislation. intellectual property rights?

Entering the work in the registry entails The subjects who can request the registration of
safeguarding the presumption of owner- the works are listed in detail in articles 11 and 13
ship (the work is owned by the author or of the aforementioned regulations of 2003. The
registered rightsholder) and the presump- following situations are specified:
tion of the existence of the work vis-à-vis
third parties (it provides proof in the event 1. In first place, the authors and other original
of a dispute). And as real rights with an holders of the intellectual property rights
economic value, it is possible to record are entitled to apply for the registration or
other acts that would affect the registered annotation of rights with respect to their
work, such as embargo or mortgage work. In the case of collective works, it is
annotations. the person (natural or legal) that publishes
or discloses it. In composite or derivative
2. The registration or annotation of acts and works, it is the author or authors with
contracts involving the creation, transfer, proof of the authorisation of the author
modification or extinction of real rights to of the pre-existing work. And in the cases
the registered work, that is, registrations of authors who use a pseudonym or sign
of rights to the registered work that are as- or anonymous authors, the person who
signed (to assignees). These new holders of validly exercises the intellectual property
intellectual property rights can also protect rights may apply for registration.
their rights (acquired through assignment)
by registering or annotating them in this 2. Successive holders of intellectual property
Creators and Authorship in the Digital Age

special registry. Possible examples are: rights as a result of inter vivos or mortis
causa transfers may also apply for registra-
• The registration of assignments (through tion or annotation:
assignment contracts) of the right to
reproduce the registered work (for • Rightsholders through assignment of
example, through a publishing contract). rights of reproduction, distribution (for
publishing, for example) or communica-
• Assignment of the right to distribute it tion to the public.
(for example, in a publishing contract
that also includes reproduction rights).

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 121

 • Rightsholders through assignment of The general requirements are explicitly listed
transformation rights (assignment for in the regulations of the Intellectual Property
the translation of the work). Registry (Royal Decree 281/2003) and include:

• Rightsholders through inheritance, a) Identification of the holder or holders of

through testamentary bequest, or intellectual property rights (natural person
through succession established in the or legal person with proof of status).
rules of civil law.
b) The object of intellectual property (rights
that are registered as they are held by the
5. General and special requirements author, the assignee, or an heir; which
for registering works of intellectual rights are registered).
property. Good practice in
facilitating registration c) Type of work (literary, artistic or visual,
scientific, multimedia, website, videogame,
New technologies can foster applications for computer programme, etc.).
registration and their processing as they make
it possible for the necessary requirements to be d) Title of the work.
submitted via the Internet and furthermore the
financial cost of registration is minimal or practi- e) When the work has been made available to
cally nil. If we take into account these procedural the public, date of publication (if applica-
and financial factors, registering works and rights ble, the legal deposit number).
is simple and easy; it merely involves meeting
and submitting requirements that help identify f) Copy of the work (in the format estab-
or specify the author, the rightsholder, the lished in the special requirements for each
registrable work and the existing rights to it. type of work).

What are the requirements for registering works? g) Place and date of submittal of the applica-
It is necessary to comply with general require- tion for registration.
ments, which are established for all works, and
special requirements depending on the type of h) Signature of the applicant (or even an
work to be registered (artistic, audiovisual, sci- authorised person with proof of represen-
entific, literary, musical, computer programmes, tation).
databases, multimedia works, webs pages, video
games, etc.). i) Proof, if applicable, of payment of the
corresponding fee (the cost of registration
It should be remembered that technologies is often very low, about 14 euros).
Creators and Authorship in the Digital Age

make it possible to streamline the procedures for

completing application forms, and even for sub- Together with the above information, the appli-
mitting them electronically. Information on the cation must include other specific requirements
requirements, formats and application procedure established for each type of work, which help
for registering intellectual property rights can be describe and identify it (article 14 of the 2003
found in the documents available on the website regulations of the Intellectual Property Registry).
of the Ministry of Culture and Sports, Subdirec-
torate General for Intellectual Property. To cite an example, with respect to texts written
on paper or in digital format, literary or scientific

122 2. PREVENTIVE AND PROBATIVE MEASURES FOR THE LEGAL PROTECTION OF INTELLECTUAL PROPERTY WORKS
works and plays in general, which can be pro- and the intellectual property rights they hold.
tected by intellectual property rights, paragraph The registry system serves an evident preventive
a) of article 14 of the 2003 regulations specifies purpose as it provides information on who the
the requirements for registering these works.9 owner is and what rights they hold, and there-
fore registering or annotating these intellectual
Other copyrightable works are web pages property rights and their ownership is an effec-
(referred to ‘electronic and multimedia pages’), tive means of proof in the event of a dispute.
for which section o) of article 14 states the
registration requirements. In this connection, it is important to highlight
the ‘legal presumptions’ granted to the regis-
In addition to the two examples mentioned tered rightsholder (author, holder or assignee of
above, for practical purposes and to demonstrate rights) regarding the contents and scope of the
the simplicity and legal certainty offered by the intellectual property right registered. Specifically:
registry system, the various sections of this arti-
cle 14 of the regulations of the Intellectual Prop- 1. With respect to the presumption of own-
erty Registry (Royal Decree 281/2003) describe, ership or authorship of the person whose
in a non-exclusive list, the types of works pro- name appears in the Registry, article 27 of
tected by the rules of intellectual property, and the regulations of the Intellectual Property
the specific requirements for each of them to be Registry (2003) establishes the effective-
registered in the Intellectual Property Registry. ness of registering the work, stating that
They include musical compositions, choreogra- ‘it shall be presumed, unless proven oth-
phies and pantomimes, cinematographic works erwise, that the registered rights exist and
and other audiovisual works, sculptures, draw- belong to their holder in the form specified
ings and paintings, engravings and lithographs, in the related entries’.
comics, other artworks, photographic works,
projects, plans and designs of architectural and 2. Regarding the presumption of the exis-
engineering works, models, graphics, plans and tence of registered rights. Article 27 of the
designs related to topography, geography and, regulations of the Intellectual Property
in general, to science, computer programmes, Registry likewise establishes the presump-
databases or electronic and multimedia pages, tion that the published rights exist and are
the performances of performers, phonographic as recorded in the registry.
productions, audiovisual recording productions,
simple photographs, editorial productions 3. Consequently, it is not possible to register
provided for in the Intellectual Property Law, or annotate rights that are incompatible
and any other protected works or productions with another right that is already regis-
not included in the previous sections.10 tered or annotated. Such a case would
arise, for example, if a person tried to
Creators and Authorship in the Digital Age

register themselves as the author of work

6. Effects of registration and that is already registered in someone else’s
annotation of intellectual name, or register a reproduction right that
property works: presumption has been transferred to a sole assignee and
of ownership, existence and is already registered. Therefore, when a
accuracy of registered rights right, act or contract resulting therefrom
has been registered or annotated in the
Registering a work has fundamental legal con- Registry, no other that is contrary to or
sequences with respect to legal certainty which incompatible with it may be registered
help protect the rightsholder, author or assignee or annotated on the same, previous or

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 123

 subsequent date, unless a court judgement information, which even serve as means
rules otherwise (article 27.3 of the regula- of proof in the case of certifications of
tions of the Intellectual Property Registry). registry entries:

4. Protection of the registered ownership a) Public nature through certification,

and right through the legal principle of which, by law, effectively proves the
chain of title to the rights published in ownership and existence of the regis-
the registry entries. This registry principle tered work and of the related rights.
is explicitly regulated in article 23 of the
regulations of the Intellectual Property b) Public nature by means of an office
Registry, and refers to the sequence of copy providing information about the
published acts, concatenation of acts, registration data.
and the legal protection of the registered
ownership and rights against acts, owner- c) Direct consultation of the files held in
ships or rights that are not registered and the Registry, which can only be carried
are incompatible with what is published in out at the request of the owner, or of
the Registry. anyone who proves to have a legiti-
mate interest in the registered rights
The registration history (legal protection (dispute over who holds the rights, or
provided by the registry) of a work begins over the work).
with a first registration (of authorship,
ownership and rights), and the Registry
publishes successive transfers and assign- 7. Non-registry protection measures.
ments, until they become public domain. What are legal deposit, ISBN, ISSN
This involves a chain of continuous acts; and the copyright symbol ©?
therefore, in order for the party that
acquires an intellectual property right (for Although far removed from the legal protection
example, an assignee who acquires rights provided by the registry, and the legal certainty
from the assigning author) to be protected provided by the legal presumptions of ownership
by the registry system, it is essential that and accuracy derived from the registration of
the assignor (author) first register their rights in the Registry, there are other systems
right and work, as this facilitates the that can provide information or proof of the
registration of the new owner (assignee). prior existence of a work and its ownership,
The idea is to maintain, for the purpose in case of conflict, such as the legal deposit of
of legal certainty, a continuous sequence intellectual property works.
of transfers in the Registry. Unless the
ownership of the assigner (author or right- The content and scope of the legal deposit of
Creators and Authorship in the Digital Age

sholder) has previously been registered, the works protected by intellectual property are
purchaser (new assignee) cannot register currently regulated by Law 23/2011 of 29 July
their acquired right in the Registry. on Legal Deposit and by Royal Decree 635/2015
of 10 July, which regulates the legal deposit of
5. Another legal effect is the publication online publications.
of the registry entries. The public nature
the Registry grants is a core principle of The purpose of this legislation is to regulate this
the protection of intellectual property legal concept, the legal deposit, which is defined
rights. It takes the form of three types of in article 1 of the abovementioned Law 23/2011.11

124 2. PREVENTIVE AND PROBATIVE MEASURES FOR THE LEGAL PROTECTION OF INTELLECTUAL PROPERTY WORKS
Its purpose is to preserve and facilitate access However, the legal scope of legal deposit and
to works protected by intellectual property the Intellectual Property Registry cover two very
rights. The preamble states that ‘the book, different areas. Legal deposit allows works that
sound, visual, audiovisual and digital heritage of are disseminated or published to be identified,
the cultures of Spain is one of the richest and because its purpose is to preserve and make
most representative in the world and must be accessible a country’s culture, but it does not
preserved for the benefit of present and future facilitate the protection of unpublished works.
generations’, so that it can be accessible to all In contrast, the task of protecting authorship,
citizens and contribute to their cultural, social ownership and rights to works protected by
and economic development. intellectual property rules, published or not, falls
to the registry system, the Intellectual Property
Law 10/2007 of June 22 on Reading, Books and Registry, as a means of preventive protection
Libraries stated that it is the duty of the state to and of providing proof of registered ownership
regulate the legal deposit insofar as the essential and existing rights to the works.
mission of the latter is to preserve culture and to
allow anyone to access the cultural, intellectual The ISBN and ISSN, numerical codes for identify-
and book heritage, while helping protect copy- ing protected works with which they ensure and
right in the field of intellectual property. facilitate the specification and protection of the
works and their author or owner, have a similarly
In order to achieve this goal, especially, the informative purpose. An ISBN is an international
publishing sector has the legal obligation to standardised code for books (International Stan-
submit to the public administrations’ repositories dard Book Number), whereas the ISSN (Interna-
copies or samples of publications of all types and tional Serial Standard Number) is an international
in any medium, including online publications. standardised number for serial and periodical
publications, magazines, newsletters, etc.
Given the state of technology, the European
institutions have warned about ‘the challenges The ISBN code on monographs, in any medium,
posed by the deposit of book, sound, visual, is regulated by Royal Decree 2063/200814 of 12
audiovisual and digital heritage in a digital December implementing Law 10/2007 of 22 June
environment and have proposed solutions aimed on Reading, Books and Libraries with respect to
at exploring new techniques for gathering ma- the ISBN. Article 1 defines what this enumera-
terial online for dissemination and conservation tion entails, determining the purpose and scope
purposes’ (Preamble to the 2011 law). of this rule:

According to article 4 of this law, copies of ‘all The International Standard Book Number, ISBN,
kinds of publications, produced or published is the number created internationally to assign
in Spain, by any production, publication or each book a numerical code that identifies it and
Creators and Authorship in the Digital Age

dissemination procedure, and distributed or makes it possible to coordinate and standardise the
communicated in any medium or by any means, identification of any book in order to locate it and
tangible or intangible’ are to be deposited. facilitate its market circulation.
Sections 2 and 3 of the article specify the publi-
cations that must be deposited for the purpose It adds that the ISBN must be displayed on all
of conservation, dissemination of knowledge and publications that are included in section a) annex
culture, and protection of intellectual property I of this Royal Decree.
rights.12 The Biblioteca Nacional, Spain’s national
library, is the repository for the published works Section b) of annex I lists exempted publications,
submitted.13 including music scores, since ‘their commercial

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 125

 identification code is the ISMN’, the Interna- otherwise – such as works written in text on
tional Standard Music Number, the international paper or in digital format, literary, scientific or
number that identifies written music publications dramatic works, musical compositions, choreog-
for sale, rental, distribution or dissemination, for raphies and pantomimes, cinematographic works
the purpose of copyright recognition and protec- and other audiovisual works, sculptures, draw-
tion. Also excluded from the ISBN number are ings and paintings, engravings and lithographs,
audiovisual products ‘such as cinematographic, comics, photographic works, projects, plans and
documentary, advertising and cartoon films, etc.’, designs of architectural and engineering works,
since their identification code is the ISAN, the topography, geography, or science, models, com-
International Standard Audiovisual Number. puter programmes, databases or electronic and
multimedia pages, videogames, performances by
All the identifying data provided by these inter- performers, phonographic productions, audiovi-
national standard codes – ISBN, ISSN, ISMN and sual recordings productions, simple photographs
ISAN – facilitates the recognition and protection or editorial productions – can be registered.
of the work, the authors, the owners, and the
related intellectual property rights. The Intellectual Property Registry publishes the
registrations or annotations of ownership and
And lastly, there is the use of the copyright rights to protected works and the assignment
symbol ©, which has an informative purpose and of the rights to registered works, in addition to
no formal or specific regulations. It is designed providing a record of real rights to the works
to facilitate knowledge of ownership in order to (mortgage and embargo on copyright). And new
protect the work under the rules of copyright technologies are making it easier to process
by indicating who the holder of the intellectual registration applications and register existing
property rights is – namely the natural or legal ownership and rights, for a minimal or virtually
person whose name appears after the symbol; it zero cost (around 14 euros).
therefore makes it possible to simply identify and
specify the holders of rights to the existing work. The registry record provides legal certainty and
essential protection for intellectual property
rights, establishing legal presumptions about the
8. Conclusions registered content, such as the legal presump-
tion of title of the registered subject and the
The Intellectual Property Registry is an effective presumptions of existence and accuracy of the
means of providing legal protection to intellec- registered rights to the works.
tual property works as it establishes a system
of legal certainty based on voluntary, not com- The Intellectual Property Registry establishes a
pulsory, registration that is declaratory of the consolidated and effective system for legally pro-
already existing ownership and rights. tecting the intellectual property rights to works
Creators and Authorship in the Digital Age

that may or not be publicly available. Covering

Therefore, having a record of the ownership and a different field, the legal deposit of published
rights to all works protected by intellectual prop- works provides information about them, helping
erty, by registering them in the Registry, provides protect copyright. And the identification of
a legal mechanism of preventive protection and publications by the ISBN and ISSN and the
a means of proof in lawsuits. copyright symbols © facilitates knowledge
and, accordingly, the protection of intellectual
All works that are protectable or protected property rights in a scope different to that of the
by intellectual property rules, published or legally regulated registry system.

126 2. PREVENTIVE AND PROBATIVE MEASURES FOR THE LEGAL PROTECTION OF INTELLECTUAL PROPERTY WORKS
9. Bibliography Piñol Espasa, José Agustín, ‘El registro de la
propiedad intelectual’, in Felipe Palau Ramírez
Couto Gálvez, Rosa de, ‘Medida preventiva y and Guillermo Palao Moreno (dirs.), Comentarios
probatoria que ampara los derechos sobre la a la Ley de Propiedad Intelectual, Valencia, Tirant
obra científica’, in Rosa de Couto Gálvez y Celia lo Blanch, 2017, pp. 1649−62.
Sánchez-Ramos (coords.), Propiedad intelectual e
industrial de la obra científica. 3. Patentes, Madrid, Rams Ramos, Leonor, ‘Aspectos administrativos
Universidad Complutense / Universidad Pontifi- en la evolución del Registro General de Propie-
cia Comillas, 2010, pp. 57−67. dad Intelectual como mecanismo de protección’,
Revista Crítica de Derecho Inmobiliario, no. 686,
Hernández Torres, Estefanía, Patrimonio histórico 2004, pp. 2779−824.
y Registro de la Propiedad, Madrid, Reus / Regis-
tradores de la Propiedad, 2018. Rodríguez-Toquero y Ramos, Pilar, ‘Registro y
propiedad intelectual’, Anuario de la Facultad de
Martínez Posada, Rosa, ‘El registro general de la Derecho de Alcalá de Henares, no. 6, 1996−1997,
propiedad intelectual’, in Eduardo Serrano Gó- pp. 41−58.
mez (coord.), Administraciones públicas y propie-
dad intelectual, Madrid, Reus, 2007, pp. 73−98. Vives-Gràcia, Josep, ‘Aspectos de propiedad in-
telectual en la creación y gestión de repositorios
Miserachs Rigalt, Antonio, ‘La inscripción de una institucionales’, El Profesional de la Información,
obra en el registro de la propiedad intelectual’, El vol. 14, no. 4, 2005, pp. 267−78.
Libro Español: Revista Mensual del Instituto Nacio-
nal del Libro Español, no. 103−4, 1966, pp. 477−83.

Moralejo Imbernón, Nieves, ‘El registro de la

propiedad intelectual’, Pe.I.: Revista de Propiedad
Intelectual, no. 26, May−August 2007, pp. 13−76.

Creators and Authorship in the Digital Age

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 127

 3. Judicial measures vis-à-vis infringements of
intellectual property rights

Isabel Fernández-Gil Viega

1. Introduction with no other limitations than those established

by law, and state that the author of a literary,
Article 33 of the Spanish Constitution of 197815 scientific or artistic work has the right to exploit
recognises the right to private property and it and use it how they wish.
within this category – in article 20, among
fundamental individual rights – it particularly However, this declaration of principles is often
protects literary, artistic, scientific and technical undermined by various infringements, all
creation, that is, intellectual property. It likewise included in the Penal Code19 in the section on
states that private property has a social function offences relating to intellectual property. These
and that nobody can be deprived of their prop- infringements consist in reproducing, plagiaris-
erty and rights except on justified grounds of ing, distributing, communicating to the public or
public utility or social interest and with a proper by any other means a literary, artistic or scientific
compensation, linking all the public powers to work or service, economically exploiting it wholly
the Constitution and accordingly to respect for or partially, or transforming or performing an
private property. artwork that is fixed in any type of medium or
communicated by any means without the au-
Creators and Authorship in the Digital Age

Article 27 of the Universal Declaration of Human thorisation of the holders of the related intellec-
Rights16 states that ‘everyone has the right to the tual property rights or their assignees.
protection of the moral and material interests
resulting from any scientific, literary or artistic Swiftly combating these illegal activities and
production of which he is the author’. This is offences against intellectual property rights
repeated in very similar terms in article 15 of the should be a priority, since for every minute an
International Covenant on Economic, Social and unlawful act and, accordingly, an infringement
Cultural Rights17 and in articles 348 and 428 of takes place, the risk of irreparable damage to
the Spanish Civil Code,18 which define property the author’s or the artist’s moral and economic
as the right to enjoy and make use of something rights increases exponentially. Immediate action

128 3. Judicial measures vis-à-vis infringements of intellectual property rights

is required to ensure that the infringing content 3. Copyright infringements
is rendered inaccessible. The leitmotiv is to stop
and dissuade. According to the Royal Academy of the Span-
ish Language (Real Academia de la Lengua
The fact is that intellectual property rights are Española), the infringement of an intellectual
very vulnerable in the digital environment with- property right is a violation of the right of
out borders in which we currently live. However, exclusive exploitation of literary or artistic
this should not discourage us from claiming works to which the author is legally entitled
damages against offenders. for a certain period. As pointed out earlier, the
Penal Code defines this violation as reproducing,
plagiarising, distributing, communicating to the
2. Protectable rights public or in any other way, in whole or in part, a
literary, artistic or scientific work or service, or of
All original and derivative creations can be transforming or performing an artistic work fixed
protected. The Law on Intellectual Property20 in any type of medium or communicated by any
takes originals to mean literary, artistic or means without the authorisation of the holders
scientific creations expressed by any means or of the corresponding intellectual property rights
on any medium, tangible or intangible, known at or their assignees.
present or that may be invented in the future. It
defines derivative works as those resulting from Conversely, there are certain uses of these rights
the transformation, modification or adaptation that do not require the authorisation of their
of a work, without prejudice, as the case may authors though they do require remuneration,
be, to the copyright in the original work. It thus and therefore, they do not qualify as infringe-
grants the authors and creators of these works ments. The Intellectual Property Law lists the
a set of ‘moral’ or personal rights such as the following cases:
right to decide whether or not to disseminate
their work and if so in what form, and whether • Acts of provisional reproduction which,
it should be disseminated in their name, under a besides being economically insignificant
pseudonym or sign, or anonymously; to demand in themselves, are transitory or accessory
recognition of their authorship of the work and and form an integral and essential part of
respect for its integrity; to prevent any deforma- a technological process and whose sole
tion, modification, alteration or offence against purpose is to facilitate either a network
it that is detrimental to their legitimate interests transmission between third parties via an
or reputation; and to modify the work respecting intermediary, or a lawful use in the sense of
the rights acquired by third parties and the one authorised by the author or authorised
requirements of protecting cultural heritage and at law.
to withdraw the work from circulation due to a
Creators and Authorship in the Digital Age

change in their intellectual or moral convictions, • Reproduction, in any medium, without the
after paying damages to the holders of the assistance of third parties, of works already
exploitation rights, etc. It also grants them a set made available to the public, if carried out
of economic rights: the exclusive right to exploit by an individual exclusively for their private
their work in any way and, especially, the right to (and not professional or business) use,
reproduce, distribute, communicate to the public and without direct or indirect commercial
and transform the work. The above actions purposes; the reproduction must be made
cannot be carried out without their authorisation from a legal source and the conditions of
except in the cases provided for by the Law on access to the work or other subject-matter
Intellectual Property. must not be violated and the resulting copy

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 129

 must not be used collectively or for making been made available to the public, and are
profit, or be distributed with a charge. included by way of quotation or for analysis,
Therefore, reproductions of works that have commentary or critical assessment. Such
been made available to the public using use may only be made for teaching or re-
wire or wireless procedures, in such a way search purposes and to the extent justified
that members of the public can access them by the purpose of their inclusion, and the
where and when they choose as agreed source and author of the work’s name must
by contract and, as the case may be, for a be stated.
charge, as well as electronic databases and
computer programmes, would be consid- • When providers of electronic content
ered an infringement. aggregation services make available to the
public non-significant excerpts of content
• The reproduction, distribution or commu- disseminated in periodical publications or
nication to the public for public security on websites that are regularly updated and
purposes or for the correct development whose purpose is to provide information,
of administrative, judicial or parliamentary create public opinion or entertain. However,
procedures. authorisation is required for third parties
to make available to the public any image,
• The reproduction, distribution and com- photographic work or simple photograph
munication to the public of works already disseminated in periodical publications or
circulated for the benefit of people with on websites that are regularly updated.
disabilities, provided that they are not for
profit, are directly related to the disability in • The reproduction, distribution and commu-
question, are carried out through a proce- nication to the public of small fragments of
dure or means adapted to the disability and works that are already disseminated (and
are limited to the requirement of the latter. are not textbooks, university handbooks
or similar publications) and of individual
• The reproduction, distribution and artworks or figurative photographic works
communication to the public of copies in by teachers of formal education taught at
accessible format of works for the exclusive centres belonging to the Spanish education
use of blind people or people with visual system and staff at universities and public
impairments or other difficulties accessing research institutions as part of their scien-
printed texts, by authorised organisations tific research , provided they do not do so
established in Spain, provided they do not for commercial purposes and as long as they
interfere with the normal exploitation of include the name of the author and the
the work, and do not excessively harm the source, if these acts are carried out solely
legitimate interests of the rightsholder, to illustrate their educational activities in
Creators and Authorship in the Digital Age

for the exclusive use of abovementioned both in-person and distance teaching, or for
beneficiaries or of an authorised organisa- the purpose of scientific research and to the
tion established in any Member State of the extent justified by the non-commercial aim
European Union. pursued.

• Including in a work of one’s own excerpts of • The partial reproduction, distribution

others’ written, sound or audiovisual works, and communication to the public of
or isolated works of three-dimensional or works or publications that are printed or
photographic, figurative character, provided printable (music scores, single-use works,
that they are works which have already compilations or groupings of fragments of

130 3. Judicial measures vis-à-vis infringements of intellectual property rights

 works, individual artworks and figurative remuneration or, in the absence of an agree-
photographic are not included), if such acts ment, a sum deemed fair.
are carried out solely for illustration for
educational and scientific research purposes • The reproduction, distribution and com-
and are limited to a chapter of a book, munication of lectures, addresses, forensic
journal article or text of equivalent length reports and other works of the same nature
in a similar publication or the equivalent to that have been delivered in public, provided
ten percent of the total of the work. It does that such uses are made for the sole pur-
not matter whether the copying is carried pose of informing on current events. The
out in one or several acts of reproduction, latter condition shall not apply to speeches
at universities or public research centres, by made at parliamentary sessions or meetings
their staff and with their own means and of public bodies. In any case, the author’s
instruments and whether the distribution right to publish such works in a collection
of partial copies is made exclusively among shall be reserved.
the students and teaching or research staff
of the same centre where the reproduction • Access, by the user, to the contents of a
is made or whether only the students and protected database and its normal use, even
teaching or research staff of the centre if they are subject to an exclusive right of
where the partial reproduction of the work that author. Nor is licence required from
is made may have access to it through the the author of a protected database that has
acts of communication to the public au- been made available to the public when,
thorised in this section, making it available in the case of a non-electronic database, it
through internal and closed networks that is reproduced for private purposes or the
can only be accessed by those beneficiaries use is made for purposes of illustration of
or as part of a distance education pro- teaching or scientific research materials,
gramme offered by the education centre. provided it is made to the extent justified by
All this applies in the absence of a specific the non-commercial purpose pursued and
prior agreement in this regard between the the source is mentioned in all cases, or if it
holder of the intellectual property right and is used for the purposes of public security or
the university or research organisation. Un- for the purposes of a court procedure.
less the university or organisation holds the
related intellectual property rights to the • The reproduction, distribution and commu-
works that are reproduced, distributed and nication to the public of any work liable to
communicated to the public, the authors be seen or heard in the reporting of current
and publishers of these works will have an events, although only to the extent justified
inalienable right to receive fair compensa- by this informative purpose.
tion from the centres that use them, which
Creators and Authorship in the Digital Age

will be paid through collecting societies. • The reproduction, distribution and open
communication, through paintings,
• The reproduction, distribution and commu- drawings, photographs and audiovisual
nication to the public of works and articles procedures of works permanently located
on topical subjects disseminated by the in parks, streets, squares or other thorough-
media, citing the source and the author if fares.
the work was published under a by-line and
provided that no reserved copyright notice • Reproductions of works, when they are
appeared in the original, notwithstanding made for non-profit purposes by museums,
the author’s right to collect the agreed libraries, record libraries, film libraries and

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 131

 newspaper libraries or archives that are pub- ety Services and Electronic Commerce (Ley de
licly owned or part of cultural or scientific Servicios de la Sociedad de la Información y de
institutions, provided that the reproduction Comercio Electrónico, LSSI).
is carried out exclusively for research or
conservation purposes. In this connection, Decision 470/2013 of De-
cember 18 made by Section 15 of the Provincial
• The performance of musical works during Court of Barcelona (Appeal No. 1019/2010) sets
the course of official state events or those a precedent by being the first court ruling in
of the public administrations or religious Spain on the cessation of an unlawful activity
ceremonies shall not require the licence of which is directed not against the infringer of
the rightsholders, provided that the public the intellectual property rights, but against the
can attend them free of charge and the intermediary. It recognises that the user’s activ-
performers involved in them do not receive ity – storing and making available thousands of
specific remuneration for their perfor- musical recordings in a shared folder through a
mances. P2P network – is a violation of record companies’
rights to reproduce and make available a work. It
• The parody of a work already made avail- goes on to state that the LSSI does not in itself
able to the public will not be considered a prevent the application of cessation measures
transformation that requires the author’s provided for in the Intellectual Property Law
consent, provided that there is no risk of it (LPI) to third-party intermediaries:
being mistaken for the original work and it
causes no harm to the original work or its SIX. However, the mass-scale exchange of au-
author. diovisual content files, through the so-called P2P
platforms, which allow the downloading of musical
recordings, infringes rights that the Intellectual
4. Measures for protecting Property Law exclusively reserves to authors. Spe-
intellectual property before cifically, the rights of reproduction (articles 18 and
taking the case to court 115 of the LPI) and communication to the public
(articles 20, section i) and 116.1 of the LPI). This is
When infringement takes place, the first thing stated in our previous Judgments of 24 February
that needs to be done is identify the person 2011 (ROJ 3/2011) and 7 July 2011 (ROJ 4207/2011).
responsible for the damage. According to the In the latter we note that ‘in a network of shared
Intellectual Property Law, responsibility lies not P2P files, whoever has a music file or a movie and
only with the actual perpetrator but also with stores it in a folder of shared files, which anyone
anyone who has induced the perpetrator to com- can access via a P2P client programme, as well
mit the infringement, anyone who cooperates as engaging in an act of reproduction that is not
with it, being aware of the infringing conduct or covered by the exception laid down in article 31.2
Creators and Authorship in the Digital Age

with reasonable indications of knowing about LPI, as it would not be appropriate to speak of a
it; anyone with a direct economic interest in the private use, is making these files available to the
results of the infringing conduct who has the public and therefore performs an act of communi-
ability to influence the conduct of the offender; cation to the public provided for in article 20.2.1) of
and intermediaries whose services are used by a the LPI’.
third party to infringe intellectual property rights Therefore, fixing musical recordings on the hard
recognised by this law, though the acts of such disk of a computer, in that it allows them to be
intermediaries do not in themselves constitute communicated or copies to be made, constitutes
an infringement, notwithstanding the provisions an act of reproduction (article 18). In addition,
of Law 34/2002 of 11 July21 on Information Soci- these recordings are made available to many

132 3. Judicial measures vis-à-vis infringements of intellectual property rights

 people, who can access the work from the place been circumvented. This measure will be
and at the time they deem convenient, carrying carried out at the expense of the infringer,
out acts of communication to the public (article 20 unless grounded reasons are given for this
i). In the case of phonograms, the exclusive right to to be otherwise.
authorise their reproduction and communication
to the public belongs to the producer (articles 115 d) The copies be withdrawn from commercial
and 116). circuits, disabling and, where necessary,
In short, the activity performed by user XXX is destroying any moulds, plates, printing
unlawful insofar as it violates the intellectual blocks, negatives and other elements,
property rights of the plaintiffs. And, in such a materials, equipment and instruments used
case, articles 138 and 139.1.h) of the TRLPI allow primarily for the reproduction, creation or
the holders of the rights recognised in the law to manufacture of unlawful copies. This mea-
direct their demand for the cessation of illegal sure will be carried out at the infringer’s
activity against the intermediaries whose services expense, unless grounded reasons are
the offender uses, even though the acts of the given for this to be otherwise.
latter do not in themselves constitute a violation.
This is the situation of the defendant R. Cable e) That the apparatus used for the unlicensed
Telecomunicaciones Galicia, S. A, which provides communication to the public of works or
Internet services to the said user. other subject-matter, of those in which
Therefore, we must allow the appeal, revoke the the data for the electronic management of
first instance ruling and, instead, fully accept the rights has been erased or altered without
claim, ordering the defendant to immediately and authorisation, or of those that have been
definitively suspend the provision of the Internet accessed by bypassing their technological
access service of user XXX. protection be removed or sealed.

Once the offenders have been identified, f) That the instruments whose sole purpose
the holder of the violated rights and/or the is to facilitate the unauthorised suppres-
collecting society may apply for an injunction sion or neutralisation of any technical
restraining the illegal activity via registered fax or device whatsoever used to protect a
any reliable means of notification, and demand computer programme be confiscated,
compensation for the material and moral dam- disabled and, if necessary, destroyed at the
ages caused. Specifically, depending on the type infringer’s expense.
of infringement, it is necessary to request that:
g) That the instruments used to facilitate the
a) The infringing exploitation or the activity unauthorised suppression or neutralisation
that constitutes infringement be sus- of any technical device whatsoever used
pended. to protect works or services, even if that
Creators and Authorship in the Digital Age

is not the only use of such instruments, be

b) The infringer be banned from resuming the removed or sealed.
exploitation or infringing activity.
h) That the services provided by interme-
c) The unlawful copies be withdrawn and de- diaries to third parties that use them to
stroyed, including those where the data for infringe intellectual property rights be
the electronic management of rights has suspended, notwithstanding the provisions
been erased or altered without authorisa- of Law 34/2002 of 11 July22 on Information
tion or whose technological protection has Society Services and Electronic Commerce.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 133

 The injunction should likewise request compen- had requested authorisation to use that right, also
sation for damages, covering not only the actual to claim compensation for the moral prejudice that
loss suffered, but also the lucrum cessans caused he has suffered, as provided for under heading (a)
by the infringement of the right. The amount of of the second subparagraph of Article 13(1) of that
compensation may include, where appropriate, directive.
the expenses of carrying out the investigation to
secure reasonable evidence of the commission of In the notification we send to the author we
the infringement that is the object of the judicial must indicate a deadline for carrying out the
proceedings. required actions, which should be no longer than
eight days; if the desired result is not achieved
The compensation for damages shall be es- during this period, we will be entitled to bring
tablished, at the choice of the aggrieved party, judicial and/or administrative action.
according to any of the following criteria:

a) Negative economic consequences, in- 5. Judicial and/or administrative

cluding the lucrum cessans suffered by the measures for protecting
aggrieved party and the profits obtained by intellectual property rights
the offender from the unlawful use.
The means of combating infringements, when
In the case of moral damage, the aggrieved injunctions prove insufficient or ineffective, are:
party is entitled to compensation even
where there is no evidence of economic • Civil procedure
harm. The circumstances of the infringe-
ment, the seriousness of the harm done • Criminal procedure
and the extent of the unlawful dissemina-
tion of the work will be taken into account • Administrative procedure
in order to assess it.

b) The money that the aggrieved party would 5.1. Civil procedure
have received as remuneration, if the
infringer had requested a licence to use Going down this route makes it possible to
the copyright in question. request precautionary measures in cases where
the infringement has already occurred or there
It is worth noting that the CJEU (Fifth are good and reasonable and grounds to fear
Chamber) Judgment of 17 March 2016, Rec. that it will occur imminently. The request may
C-99/2015, states: be made prior to filing the corresponding claim
(in this case the remedies will be of no effect
Creators and Authorship in the Digital Age

Article 13(1) of Directive 2004/48/EC of the if the claim is not filed within twenty days), or
European Parliament and of the Council of 29 April at the same time. Once the request has been
2004 on the enforcement of intellectual property submitted, the judicial authority may give orders
rights must be interpreted as permitting a party for appropriate precautionary measures needed
injured by an intellectual property infringement, to urgently protect the rights, especially:
who claims compensation for material damage as
calculated, in accordance with heading (b) of the 1. The seizure and deposit of revenue earned
second subparagraph of Article 13(1) of that direc- through the unlawful activity in question
tive, on the basis of the amount of royalties or fees or, where appropriate, the deposit of
which would have been due to him if the infringer amounts payable by way of remuneration.

134 3. Judicial measures vis-à-vis infringements of intellectual property rights

 2. Suspension of the reproduction, distribu- The holder of the infringed right may ask to be
tion and communication to the public, as given the said copies and material at cost price,
the case may be, or any other activity that so that they go towards the related damages.
infringes this law, as well as the prohibition
of these activities if they have not yet been These options will not apply to copies purchased
put into practice. in good faith for personal use.

3. Seizure of copies produced or used and of It must be borne in mind that the statute of
the material used mainly for the reproduc- limitations for filing a claim for damages is five
tion or communication to the public. years from the date it may be exercised by the
person entitled to do so.
4. Seizure of the equipment, devices,
products and components referred to in It is also customary to prepare the trial through
articles 102.c) and 196.2 and those used for the so-called ‘preliminary investigations’ (diligen-
the suppression or alteration of data for cias preliminares), which can be defined as the set
the electronic management of the rights of actions whereby the court with jurisdiction is
referred to in article 198.2. asked to make specific enquiries to gather the
information required to ensure that the future
5. Seizure of the equipment, devices and trial may be effective. The Supreme Court, in its
materials referred to in article 25, which judgment of 20 June 1986, defined them as ‘the
will stand encumbered for payment of the set of actions aimed at clarifying the issues that
reparation claimed and the appropriate may arise prior to the commencement of judicial
damages. proceedings in the principal action, and they are
therefore a clarifying process that lacks enforce-
6. The suspension of services provided by ability’. In other words, we may conclude that
intermediaries to third parties who use this term refers to actions aimed at ensuring that
them to infringe intellectual property the requesting party obtains the information
rights, notwithstanding the provisions needed to prepare the proceedings to defend
of Law 34/2002 of July 11 on Information their legitimate rights or interests.
Society Services and Electronic Commerce.
With respect to intellectual property, they are
Both injunctions and precautionary measures regulated in article 256 of the Civil Procedure
may also be requested, when appropriate, Law (Ley de Enjuiciamiento Civil),24 sections 10
against intermediaries whose services are used and 11, and are used, among other purposes, to
by a third party to infringe intellectual property gather information about the possible infringer
rights recognised under this law, even though and the origin and distribution networks of
the acts of such intermediaries do not in works, goods or services; and to identify the
Creators and Authorship in the Digital Age

themselves constitute an infringement, notwith- provider of an information society service

standing the provisions of Law 34/2002.23 These when there are reasonable indications that this
measures must be objective, proportionate and provider is making available or disseminating,
non-discriminatory. directly or indirectly, copyrightable content,
works or other subject-matter; and to get the
The infringer may request that when the above- provider to supply the information needed to
mentioned copies and material can be used for identify a user of their services to whom they
other purposes, they be destroyed or disabled currently provide or have provided a service in
only to the extent necessary to prevent unlawful the last twelve months.
exploitation.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 135

 If precautionary measures have not been issued Circular 2/1989 (April 20) of the Public Prosecu-
at the same time within the abovementioned tor’s Office (Fiscalía General del Estado) defines
twenty-day period (or within a month if pre- plagiarism as ‘the possible appropriation of
liminary investigations have been requested), someone else’s work or performance’. The Royal
it will be necessary to file an ordinary lawsuit Academy (Real Academia) defines it as ‘copying
with the commercial courts of the place where someone else’s work substantially, passing it off
the infringement is committed, where there are as one’s own’. And case law takes plagiarism to
indications it was committed, or where unlaw- mean, in its most simplistic sense,
ful copies are found, whichever the plaintiff
chooses. Notice of the suit will be served to everything that entails substantially copying other
the defendants, who will have twenty days to people’s works. It generally takes the form of a
reply. After they reply, the court will convene a mechanised material activity that is barely intel-
preliminary hearing, where the judge will urge lectual and less still creative, lacking any originality
the parties to reach an agreement; if agreement and genius or human talent, although it does
is not possible, it will be necessary to resolve the involve a certain degree of ingenuity. Plagiarism
procedural matters, establish the disputed facts, should be understood as occurring in situations
challenge documents and propose and allow ev- where there is identity, as well as the covert type,
idence, and set a date for the oral hearing where which, when stripped of the tricks and disguises
evidence will be examined. After the hearing, the that conceal them, are found to be fully similar to
judge will issue a decision within twenty days, the original work, constituting an appropriation
against which an appeal can be filed with the and use of someone else’s creativity and ideas or
Provincial Court of the corresponding place. intellectual effort. [...] For all the above reasons
the concept of plagiarism must refer to basic
and fundamental structural similarities and not
5.2. Criminal procedure to accessory, added, overlapping or insignificant
similarities.
Criminal law is residual, in that it is governed by
the principle of minimum intervention (principle This route begins when a criminal complaint or
of ultima ratio, last resort), to the extent that lawsuit is brought by the aggrieved party or by
only offences that are truly dangerous and the Public Prosecutor (when legal representa-
serious or threaten protected legal rights must tives in cases of minors or disabled people do
be penalised. It is thus a route should be taken not do so), although before a complaint is lodged
only when there is no other means of protection. the Judicial Police, who have the duty to prose-
cute and discover public offences committed in
Precautionary measures can also be adopted in their territory, carry out preliminary enquiries to
this case, and, as pointed out earlier, they do not ensure the offences have taken place.
prevent any other kind of measures established
Creators and Authorship in the Digital Age

in criminal procedural legislation from being Once the proceedings have been initiated, the
taken. judge will decide on all the evidence leading to
the clarification of the offence in question and
Offences against intellectual property are its perpetrators. Following the completion of
defined in articles 270 to 272 of the Criminal the investigation, the intermediate procedural
Code, the most common type, within those that stage begins during which the proceedings will
infringe copyright and intellectual property, be- be discontinued or the offences will be defined
ing plagiarism or the copying of books, paintings, by both the Public Prosecutor’s Office and the
music scores, doctoral theses, scientific works, accusation and defence. The oral phase then
computer programmes, photographs, etc. begins, consisting of the oral trial, which ends

136 3. Judicial measures vis-à-vis infringements of intellectual property rights

with a conviction or acquittal that can be subject implementation of the measures established
to appeal or/and cassation. by the final decision, including the suspension
of the related intermediary information society
services, in order to comply with the decision
5.3. Administrative procedure25 (articles 22 and 23 RD 1889/2011).

Law 2/2011 of 4 March on Sustainable Economy

(known as the Sinde Law) was drawn up to put 6. Good practice with respect
an end to scandalous illegal Internet down- to intellectual property
loads that occur on a mass scale and violate infringements on the Internet
intellectual property rights. In order to speed
up and facilitate the procedures for reporting The problem of demonstrating an intellectual
these infringements, the Second Section of the property infringement committed on the Inter-
Intellectual Property Commission was set up, net in court lies in the evidence. In practice, the
being organisationally responsible to the Ministry main evidence is expert opinions.27
of Culture, in accordance with Royal Decree
1889/2011 of 30 December, which regulates the A recent development is that a court computer
functioning of the Intellectual Property Commis- expert can be called on by any of the parties, and
sion.26 Authors whose intellectual property rights even ex officio by the judge, to issue an opinion
have been violated can file a request for it to on actions carried out on the Internet that may
deem whether or not rights have been infringed, constitute offences and illegal or punishable
and must provide reasonable evidence of their infringements as a professional and specialist
previous unsuccessful attempt to have the on new technologies. The examination carried
allegedly infringing information society service out by the expert is subject to the rules of
withdraw the unlicensed content it offers (article adversarial procedure and to assessment by the
158 section 3 TRLPI). If the infringing content is court according to the rules of good judgement.
not withdrawn from the web page, the service This means – as the Supreme Court states in its
provider must cooperate with the Second consolidated case law doctrine – that ‘the weight
Section of the Intellectual Property Commission, given to an expert’s opinion is not established
otherwise they may be fined between 150,001 by statute but assessed by the judge according
and 300,000 euros. to his prudent criterion, and there are no pre-es-
tablished rules that govern how he weighs it’,
The procedure must be conducted in accordance and also that ‘the rules of good judgement are
with the principles of legality, objectivity, ad- not codified, they must be understood as the
versarial procedure, speed and proportionality. most elementary guidelines of human logic and
The maximum period for reaching and giving therefore only in exceptional cases can expert
notification of a decision is three months and if evidence be reviewed in cassation’. That is why
Creators and Authorship in the Digital Age

no notification is received the application will be the weighing of digital evidence by the relevant
deemed to have been refused, pursuant to article authorities must be respected unless it is arbi-
158 ter-3 of the LPI. In addition, it requires the trary, illogical or irrational, since it is entrusted by
involvement of the central administrative courts, law to the good judgement of the judge; where
which will be responsible for authorising, on there are various opinions, the judges can heed
the one hand, the request for the collaboration them all or only one of them and dispense with
of the providers of intermediation services by the others, or select partially the data deemed
handing over the data at their disposal to allow appropriate to submit them to the reasoning of
the responsible party to be identified (article good judgement, that is, loyally and objectively in
18 RD 1889/2011), and, on the other hand, the relation to what has been discussed.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 137

 Accessing or locating on the Internet intellectual The lack of protection for creators’ fundamental
property works or subject-matters without the rights on the Internet leads us to conclude that
authorisation of the holders of the related rights it is necessary to expressly regulate the digital
or of their assignees, in particular by providing world to address its current problems and
orderly and classified lists of links to the works changes in particular.
and content referred to above, even if the links
had been initially provided by the recipients of It is necessary to promote respect for intellectual
their services (article 270.2 CP), is punishable property so that it can fulfil its role as a driving
with a six- to four-year prison sentence and a force of the economy, innovation and creation,
fine of twelve to twenty-four months. implementing a protection system that benefits
holders and users of intellectual property alike.
Sometimes, as we have said, it is advisable to Legislative reforms should be aimed at facilitat-
secure the evidence before or during the course ing the development and social and economic
of the ordinary procedure, as laid down in well-being of all operators, incorporating legis-
article 297.2 of the Civil Procedure Law,28 which lative elements, operational and technological
states that ‘in cases of infringement of indus- solutions and institutional collaboration, as well
trial property and intellectual property rights, as raising awareness and changing mentalities.
once the party requesting the measures has
submitted evidence of the infringement that is
reasonably available, such measures may consist, 8. Bibliography
in particular, of a detailed description, with or
without samples, or the effective seizure of the Bercovitz Rodríguez-Cano, Rodrigo (coord.),
merchandise and objects under dispute, as well Comentarios a la Ley de Propiedad Intelectual,
as of the materials and instruments used in the Madrid, Tecnos, 2017.
production or distribution of the merchandise
and of the documents related to them, or, as Cortés Fernández, Blanca, ‘El fair use en infrac-
established in article 328 of the law, request ciones de derechos de propiedad intelectual:
the exhibition of documents that ‘may extend, el uso inocuo’, Boletín de Propiedad Intelectual,
in particular, to bank, financial, commercial or Industrial y Nuevas Tecnologías, no. 1, July 2012,
customs documents produced within a certain pp. 6−8.
period of time and presumed to be in the pos-
session of the defendant. This request must be Couto, Rosa de, et al., La tutela de la obra plástica
accompanied by prima facie evidence that may en la sociedad tecnológica. Consideración especial
consist in submitting a sample of the copies, del derecho a la propia imagen y de otros activos
merchandise or products that provide tangible inmateriales, Madrid, Trama, 2005.
proof of the infringement.’
Diccionario de la RAE.
Creators and Authorship in the Digital Age

7. Conclusions Giuriati, Domenico, El plagio, Pamplona, Ana-

lecta, 2005.
In recent years the digital era – as we stated ear-
lier – has given rise to new infringements via the Latorre, Virgilio, Protección penal del derecho de
Internet of intellectual property rights and copy- autor, Valencia, Tirant lo Blanch, 2014.
right, which current legal models do not protect in
depth. The law always lags behind society and its Temiño Ceniceros, Ignacio, El plagio en el derecho
progress, and this gap is evident in the case of the de autor, Cizur Menor (Navarra), Thomson
digital world, given its pace of development. Reuters Aranzadi, 2015.

138 3. Judicial measures vis-à-vis infringements of intellectual property rights

4. Intellectual property and compliance.
Good use of technological resources and
accountability

Vicente Navarro

1. Introduction especially from the criminal point of view, it

is necessary to define this concept in a broad
The term compliance comes from the world of sense, as compliance with rules, both optional
business and corporate law and refers to the and mandatory, that are linked to good corpo-
job in organisations of identifying, advising on, rate governance and bring transparency and
preventing, alerting to, monitoring and reporting good practice to the organisation.
on regulatory compliance risks, that is, the risk
of being penalised or suffering economic or Particularly relevant in this connection is the
reputational losses as a result of non-compliance ISO 19600: 2014 Compliance Management
with applicable laws, internal regulations, any Systems standard. It is an MSS-B type standard
codes of conduct or ethics that the organisation that offers guidelines aimed at implementing
abides by or has adopted and standards of good compliance management systems by providing a
practice it has voluntarily espoused. framework bringing together the best practices
in this discipline. The standard is also developed
A particularly important reform of the Criminal in accordance with the ISO High-Level structure
Code (Organic Law 5/2010 of June 22) provides and is therefore adaptable to any organisation
Creators and Authorship in the Digital Age

for a new type of corporate risk – the criminal risk and makes it possible to facilitate the imple-
(criminal liability of the company); this makes it mentation of a compliance management system
necessary for companies (regardless of their size) in small organisations, as well as to develop a
to establish a new legal framework for imple- compliance superstructure, since it is perfectly
menting prevention programmes that are effec- adaptable to the degree of maturity of an
tive and that allow them to detect and prevent organisation’s compliance management system
any criminal risks arising from their organisation. and to the nature and complexity of its activities.
Likewise, it can be useful in relation to any risk
However, despite the fact that compliance of regulatory noncompliance, such as risks linked
is gaining importance today as a function, to intellectual property.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 139

 The standard states that compliance is the Nowadays, protecting the intangible assets
outcome of an organisation meeting its obliga- owned by companies is increasingly important
tions, and is made sustainable by embedding it in in order to (i) develop and maintain a compet-
the culture of the organisation and in the be- itive advantage, preventing their involuntary
haviour and attitude of people working for it. disclosure or unauthorised use by competitors,
Organisations should therefore aim to make (ii) enter into relationships with employees,
compliance a part of the management processes consultants, suppliers, subcontractors, business
and operational procedures, so that it is em- partners and customers, and (iii) raise funds.
braced by people in their behaviour.
Two main types of intellectual property obliga-
tions can be distinguished:

a) Industrial property, which includes patents

for inventions, trademarks, industrial
designs and geographical indications.

b) Copyright, which includes literary works,

films, musical works, artworks and
architectural designs. Copyright also
includes the so-called related rights, which
encompass the rights of performers over
their performances, those of producers of
phonograms and those of broadcasting
For this to occur, compliance needs to be
organisations in respect of their radio and
brought into line with the generally accepted
television programmes.
corporate governance, ethical and community
standards – a responsibility that should fall
Therefore, intellectual property laws cover a
unequivocally to the organisation’s management.
broad variety of areas, including brands, logos,
object designs, geographical indications of origin,
The standard draws attention in particular to its
company names, radio broadcasting, industrial
usefulness for demonstrating an organisation’s
processes, integrated circuits, materials, com-
degree of commitment to regulatory compliance.
puter programmes, inventions, perfumes, chemi-
cal formulas, video games, films, music, images
and performances, among others.
2. Intellectual property as part of the
compliance management system
Creators and Authorship in the Digital Age

The regulations with which an organisation must

comply include intellectual property rules.

This article addresses the main forms that intel-

lectual property takes in today’s corporate world,
together with key recommendations for enabling
companies to comply with current regulations
and knowing how to use intellectual property
rights properly.

140 4. INTELLECTUAL PROPERTY AND COMPLIANCE. GOOD USE OF TECHNOLOGICAL RESOURCES…

3. Intellectual property and 3.1. Patents
protection of intangible assets
A patent is ‘an exclusive right granted for an
One of the fundamental pillars of intellectual invention, which is a product or a process that
property rights is that they convert intangible provides, in general, a new way of doing some-
assets into exclusive property rights, albeit for a thing, or offers a new technical solution to a
limited period of time. problem’.29

Unless an organisation’s innovative ideas, The regulatory body in Spain is the Spanish
new designs and models, and trademarks are Patent and Trademark Office (Oficina Española
protected in accordance with the legislation de Patentes y Marcas, OEPM), while in Europe it
governing intellectual property rights, any is the European Patent Office (EPO).
other company may use them for free, with no
limitations of any kind. However, when they In the patent process, the applicant requests
are protected by intellectual property rights, protection for their invention in one or more
these assets acquire a specific value for the countries, and each country decides whether to
company, because they become property rights provide patent protection in its territory. The
that cannot be sold or used without the holder’s Patent Cooperation Treaty (PCT), managed by
authorisation. the World Intellectual Property Organization
(WIPO), facilitates the submission of a single
Organisations are attaching increasing impor- international patent application to obtain pro-
tance to intellectual property assets by including tection in several countries.
them on their balance sheets and conducting
technology and intellectual property audits on a As a rule, patent protection usually lasts for
regular basis. twenty years, during which time the company
that owns it enjoys a monopoly on selling the
Many organisations have come to realise that product or the patent, and on assigning the use
their intellectual property assets are, in fact, of the patented invention. After this period, the
more valuable than their material assets. patent becomes public domain.

Intellectual property rights can be divided into: All patent holders must, in exchange for protec-
tion, publish information about their invention,
1. Moral rights, which are inalienable. in order to enrich the world’s technical knowl-
edge. This information includes a description of
2. Economic rights, which may be sold, as- the invention, which may be accompanied by
signed or even mortgaged by their holder drawings, plans or diagrams.
if wished.
Creators and Authorship in the Digital Age

It should be remembered that one of the char- 3.2. Trademarks

acteristics of any type of property is that the
owner may use it as they wish, provided that A trademark is ‘a sign capable of distinguishing
such use does not infringe the law, and it can the goods or services of one enterprise from
therefore be bought, sold or stored as part of the those of other enterprises’.30
company’s assets.
The regulatory body in Spain is the Spanish
An organisation’s intangible assets that can be Patent and Trademark Office (OEPM). For
protected by intellectual property rights include: multinational registries, WIPO offers a multiple

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 141

 registration system whereby it is possible to and specifying the colours, shapes or three-di-
submit a single application for trademarks to be mensional features. The application must also
registered in several states. mention the type of products for which the
trademark will be used.
Regarding the duration, the initial protection
period varies depending on the country, but it
can be renewed indefinitely if the corresponding 3.3. Industrial design
fees are paid periodically.
Industrial designs refer to the ‘ornamental or
aesthetic aspect of an article’. An industrial de-
sign may consist of ‘three-dimensional features,
such as the shape of an article, or two-dimen-
sional features, such as patterns, lines or colour’.31

In order to register industrial designs they must

be new or original and non-functional; therefore
the fundamental characteristic of industrial
design is its aesthetic appearance, which is what
makes it attractive and appealing, increasing its
marketability.

Industrial design registration provides protection

against the unauthorised copying and imitation
A trademark makes it possible to distinguish the
of products – that is, like trademark registration,
manufacturer of goods or the service provider
it protects against unfair competition.
from those of other enterprises. When a trade-
mark is registered, it becomes protected against
The protection period is usually five years, with
unfair competition or counterfeiting.
the option of renewing it for up to a maximum
period of fifteen years. However, some industrial
A trademark may consist of a word or combi-
designs are works of art in themselves, and as
nation of words, letters and/or figures. It may
such are also protected by copyright.
also consist of drawings, symbols, forms in two
or three dimensions, melodies or even smells,
Industrial design applications can be filed with
as long as they are distinguishing features of
the OEPM if protection is only required in Spain,
the product itself. The chosen sign must be
and with WIPO if supranational protection is
unmistakable, so that consumers can distinguish
required.
it from other trademarks. The only limitations
Creators and Authorship in the Digital Age

imposed are that it must not mislead or infringe

morality or public order.

A special type is collective trademarks, which are

owned by an association whose members are
identified under a quality standard.

To register a trademark in Spain, it is necessary

to file an application with the OEPM, including
a reproduction of the sign you wish to register

142 4. INTELLECTUAL PROPERTY AND COMPLIANCE. GOOD USE OF TECHNOLOGICAL RESOURCES…

3.4. Geographical indication This authorisation can include reproduction
agreements such as in printed publications,
Geographical indications certify ‘products that sound recording, public performance, commu-
have a specific geographical origin and possess nication to the public, broadcasting, translation,
qualities or a reputation that are due to that adaptation, etc.
origin’.32
Copyright and related rights encompass two
Geographical indications, therefore, usually types of rights: moral and economic.
indicate the place of origin of the products,
generally foods grown under a specific climate The economic rights (reproduction, distribution,
and in a particular area. communication to the public and making avail-
able) of copyright have a duration of seventy
Geographical indications include denominations years after the death of the creator, after which
of origin, which encompass products with a the work passes to the public domain. The
specific quality derived from the geographical economic rights of related rights have a duration
environment in which they were produced. of fifty years, but from the moment of execution.

Geographical indications provide protection Both copyright and related rights include other
against the unfair competition of products types of rights, the so-called moral rights, which
that do not meet the requirements of origin basically include, according to article 14 of
and quality. States are responsible for ensuring Spain’s current Intellectual Property Law, the
compliance at the national level, and WIPO is following:
responsible at the international level.
1. To decide if whether the work is to be made
available to the public and, if so, in what form.
3.5. Copyright and related rights 2. To determine whether such communication
should be effected in their name, under a pseud-
Copyright covers the rights creators enjoy over onym or sign, or anonymously.
their literary, artistic and scientific works by 3. To claim authorship of the work.
virtue of the mere fact of having created them, 4. To demand respect for the integrity of the work
as established in article 1 of the current Spanish and object to any distortion, modification, alter-
Intellectual Property Law. It encompasses, ation or any act that may be detrimental to their
among other creations, novels, poems, plays, legitimate interests or to their reputation.
reference documents, newspapers, computer 5. To alter the work subject to respect for the
programmes, databases, films, photographs, acquired rights of third parties and the protection
musical compositions, choreographies, paintings, requirements of goods of cultural interest.
sculpture, architecture, drawings, advertising, 6. To withdraw the work from circulation due to
Creators and Authorship in the Digital Age

maps and technical drawings. changes in their intellectual or ethical convictions,

after paying damages to the holders of the ex-
Closely linked to copyright are related rights, ploitation rights.
which are granted to performers, producers of
sound recordings and broadcasting organisa- Technological advances greatly facilitate the dis-
tions. semination of works. The Internet, for example,
has become an essential driving force for making
Copyright holders – the actual author/creator or works publicly available, but this does not mean
their heirs – have the exclusive right to use, or that they can be reproduced without licence.
license third parties to use, their work.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 143

 Copyright and related rights come into being systematic imitation of the business or
the moment the work is created, regardless of professional services and initiatives of
whether or not it is registered. However, for a competitor when such a strategy is
greater security and to ensure that third-party directly aimed at preventing or hindering
rights are not encroached on, it is recommended its market uptake and goes beyond what,
that an enterprise always register a work it has depending on the circumstances, can be
created. considered a natural market response’.

b) Exploitation of others’ reputation,

3.6. Plant variety rights when it is carried out to one’s own
advantage. In the case of denominations
Another type of intellectual property, practically of origin, the use of words such as and
unknown to most companies, is plant variety similar to ‘models’, ‘system’, ‘type’ and
rights. Their protection provides an incentive for ‘class’ is prohibited, since they could
plant research in the fields of agriculture, horti- give a misleading impression about the
culture and forestry. geographical origin of the product.

The protection offered to plant varieties is c) Violation of secrets and espionage. There
twenty-five years for trees and vines and twenty is, however, a requirement in order for
years for other plants. this conduct to be considered unfair
competition: ‘that the violation has been
carried out in order to gain an advantage
3.7. Unfair competition for oneself or for a third party, or to harm
the holder of the secret’.
In recent years, unfair competition has become
one of the chief sources of intellectual property This law was subsequently qualified by Law
disputes in the business world. In general, unfair 29/2009 of 30 December, which modifies the
competition is taken to mean any act of compe- legal framework for unfair competition and ad-
tition that is contrary to honest practices in the vertising to improve the protection of consumers
industrial and commercial sphere. However, the and users.
concept appears somewhat vague, since what
constitutes honest practice for one company Articles 5 and 6 accordingly add theft of informa-
may not qualify as such for another, which is tion to competition:
why in many cases disputes of this kind often
end up in the courts. Art. 5: Any behaviour that is objectively contrary
to the requirements of good faith is considered
In Spain, articles 11, 12 and 13 of Law 3/1991 disloyal.
Creators and Authorship in the Digital Age

of 10 January on Unfair Competition (Ley de Art. 6: The risk of association with respect to the
Competencia Desleal) clearly define three types origin of the service is sufficient to substantiate the
of conduct that would be considered unfair disloyalty of a practice.
competition:
As we have seen, unfair competition is an aspect
a) Acts of imitation, since they take advan- closely related to intellectual property. The laws
tage of others’ reputation and effort. of unfair competition seek to broaden the scope
This article also classifies as unfair ‘the of intellectual property laws.

144 4. INTELLECTUAL PROPERTY AND COMPLIANCE. GOOD USE OF TECHNOLOGICAL RESOURCES…

3.8. Trade secrets encompasses the author’s moral rights (inalien-
able and non-transferable) and economic rights
Intellectual property seeks to foster human (which can be assigned to third parties), the
intellectual progress, as well as creation and orig- Criminal Code chooses to protect only the latter,
inality. As a reward, intellectual property laws because even in the sole case where it expressly
grant a monopoly over their works to creators mentions the infringement of a moral right,
and owners, so that they can obtain financial plagiarism, the requirement that there be a
gains based on the economic rights they enjoy desire to obtain financial gain as an element of
during the protection period. However, once the the criminal offence narrows down the object of
protection period has elapsed, the monopoly protection to the author’s economic exploitation
ends and the rights pass to the public domain. rights over the plagiarised work.

In the case of trade secrets, the company may

either try to ensure their indefinite duration or
endeavour to guarantee they remain undisclosed
as long as possible. In these cases, the only
possible option is not to register the secret so as
to prevent its details from being disclosed when
the protection period comes to an end. In the
case of patents, for example, the registration
form makes it necessary to provide details about
them, forcing us to reveal our secret to the
registry.

Since the disclosure of secrets is a conduct

described in the Law on Unfair Competition,
we would in any event be protected by this law None of the other moral rights regulated by
despite not having officially registered our work. article 14 of the Intellectual Property Law
(communication of the work, respect for its
integrity, withdrawal from the market under
4. Keys to how compliance certain circumstances, etc.) are protected under
protects intellectual property criminal law. Furthermore, it is dealt with in a
manner that is clearly secondary to how it is
Spain’s Criminal Code classifies offences against treated in civil procedure, since both the object
intellectual property as infringements against of protection and most of the conducts listed
property and the socioeconomic order, in keep- are established as normative elements and it is
ing with a protection model that grants absolute necessary to turn to the Intellectual Property
Creators and Authorship in the Digital Age

priority to protecting the economic aspect of the Law for a definition.

right, which has been accentuated even further
by the modification made by Organic Law 1/2015 What the legislator of the Criminal Code does
of March 30, which adds to the basic description do is add a few elements that constitute an
a final clause referring to anyone ‘who exploits it offence (acting to the detriment of third parties
economically in any other manner’. Whereas in and above all to obtain a direct or indirect
the non-criminal field, basically determined by financial gain) in which the extra harm required
the consolidated text of the Law on Intellectual to distinguish the criminal offence from a mere
Property, protection of intellectual property civil offence is established.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 145

 With respect to the protection of industrial prop- d) On offences relating to intellectual prop-
erty rights from the perspective of criminal law, erty: articles 270 to 272.
the prevailing (although not unanimous) opinion
in Spanish doctrine is that the legal property e) On offences relating to industrial property:
protected by the legislation on criminal offences articles 273 to 277.
boils down to an economic aspect of individual
ownership: exclusive exploitation rights granted f) On offences relating to the market and
to the respective owner of a patent, trademark, consumers (discovery of trade secrets):
etc., provided it has been registered. This does articles 278 to 279.
not prevent the protection of such rights from
also having effects on the operation of the It should be remembered that the amended
market (thus, the protection of fair competition) article 288 of the Penal Code states:
and on consumers (who operate from trust, for
example, that trademarks or denominations of When, in accordance with the provisions of article
origin apply exclusively to authentic products); 31 bis, a legal entity is responsible for the offences
but, apart from these beneficial effects on other listed in this Chapter, the following penalties shall
interests, it seems clear that what is protected by be imposed:
these precepts is the aforementioned economic, 1. In the case of the offences set forth in articles
individually held rights. Indeed, it is significant 270, 271, 273, 274, 275, 276, 283, 285 and 286:
the holder’s consent eliminates the criminal a) A fine of two to four times the gain that was
nature of the conducts outright. obtained, or could have been obtained, if the
offence committed by the individual carries a
With respect to offences against intellectual prison sentence of more than two years.
property, current Spanish legislation draws b) A fine of double to triple the gain that was ob-
no distinction between offences committed tained, encouraged or could have been obtained, in
physically and those carried out in cyberspace, the rest of the cases.
since it considers that the Internet is merely an In the case of the offences provided for in articles
extension of the real world. 277, 278, 279, 280, 281, 282, 282 bis, 284, and 286 bis
to 286 quinquies:
Therefore, it attempts to subject offences a) A fine of two to five years, or triple to five times
committed over the Internet to the same laws the gain that was, or might have been, obtained
as physical crimes. However, this leads to if the resulting amount were higher, when the
many inefficiencies, since problems arise when offence committed by the individual carries a
attempting to establish authorship, the applica- penalty of more than two years’ imprisonment.
ble law and the competent jurisdiction due to b) A fine of six months to two years, or double the
the characteristics of the Internet. The articles gain that was, or might have been, obtained if the re-
on intellectual property, whether the infringe- sulting amount were higher, in the rest of the cases.
Creators and Authorship in the Digital Age

ments are committed in the physical world or in 2. In accordance with the rules established in
cyberspace, are reflected in the following articles article 66 bis, judges and courts may also impose
of the Criminal Code: the penalties included in letters b) to g) of section
7 of article 33.
a) On the discovery and disclosure of secrets:
articles 197 to 200. Therefore, the Spanish Criminal Code is particu-
larly harsh in its punishment of offences against
b) On fraud: articles 248 to 249. intellectual property and industrial property
and the disclosure of secrets in the corporate
c) On damages: article 264. environment.

146 4. INTELLECTUAL PROPERTY AND COMPLIANCE. GOOD USE OF TECHNOLOGICAL RESOURCES…

According to article 31 bis of the Criminal Code, All this explains why adopting compliance
the following circumstances are required in order management systems is important today, as a
for a legal entity to be criminally liable: preventive measure, in order to exempt and/or
mitigate the legal entity’s liability derived from
• The offence committed is described in the actions committed by its members. The UNE
law. 19601 standard is particularly relevant to the
implementation of criminal compliance manage-
• The offence was committed by the de facto ment systems.
or de jure administrator, the legal represen-
tative, or any other employee responsible Thanks to the ISO 19600 standard, this model
to the former, due to lack of supervision by of compliance is proving to be a benchmark
their hierarchical superiors. in organisations as a preventive measure for
reducing risks from a cross-cutting viewpoint,
• The crime was committed in the name or and accordingly limiting their criminal, civil and
on behalf of the legal entity. administrative liability.

• The crime was committed for the direct or

indirect benefit of the legal entity. 5. Actions. Criminal, civil and
administrative liability
However, the second section of this article
establishes the following extenuating circum- In cases where the intellectual property rights of
stances: an organisation’s intangible assets are infringed,
action can be taken through the following
1. Before the offence was committed, the channels:
board has adopted and effectively imple-
mented organisational and management • Criminal procedure: Chapter XI on crimes
models that include the appropriate related to intellectual and industrial prop-
surveillance and control measures to erty, the market and consumers. Articles
prevent offences of the same nature or to 270−88. Using this route, it is possible to
significantly reduce the risk of their being request fines and/or prison sentences for of-
committed; fenders (criminal liability of the legal entity).

2. The supervision of the functioning of • Civil procedure: Through the Intellectual

and compliance with the implemented Property Law (among others). Using this
prevention model has been entrusted to a route, precautionary measures may be
body of the legal entity with autonomous requested, infringement may be stopped or
powers of initiative and control or that has prevented from occurring, measures may be
Creators and Authorship in the Digital Age

been legally entrusted with the function taken at the border to prevent the entry and
of supervising the effectiveness of the circulation of allegedly infringing products,
internal controls of the legal entity; and damages (civil liability) can be claimed.

3. The individual offenders have committed • Administrative procedure: The Intellec-

the offence by fraudulently avoiding the tual Property Commission (Comisión de
organisational and prevention models and Propiedad Intelectual) is a collegiate body
there has been no omission or insufficient of national scope that is organisationally
exercise of their supervisory, monitoring responsible to the Subdirectorate General
and control functions by the control body. for Intellectual Property of the Ministry of

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 147

 Culture and Sports. It is responsible for me- In this context, based on their power of control
diation, arbitration and safeguarding rights conferred by article 20.3 of Legislative Royal
in the field of intellectual property. Its basic Decree 2/2015 of 23 October, which approves
function is to combat audiovisual piracy and the consolidated text of the Law of the Workers’
it is authorised to impose administrative Statute (Estatuto de los Trabajadores, ET), em-
penalties (administrative liability). ployers may establish the necessary mechanisms
for controlling the productivity and appropriate
• Arbitration: There are several bodies that use of corporate technological resources by
can act as mediators on issues related staff and thereby reconcile respect for workers’
to intellectual property. Arbitration may fundamental rights (privacy and secrecy of
be requested at the behest of one of the communications) with the conduct of business.
litigants or may be provided for in a con-
tract. For example, the Intellectual Property The adoption of these measures for ensuring
Commission offers this possibility for workers’ compliance with labour obligations
copyright cases in Spain, while WIPO offers and for carrying out the necessary checks on
it internationally. prevention, detection and reaction to possible
undue or illegal use by the worker to avoid
• DMCA: The Digital Millennium Copyright incurring possible criminal liability (Article 31 bis
Act is a United States copyright law. It section 2 of the Criminal Code) currently poses a
is very useful in cases of international major challenge to companies’ human resources
infractions where a US company acts as an departments, as well as to others that provide
intermediary. The DMCA establishes a rapid advisory and support services in relation to and
mechanism for cases involving an interna- support in compliance with both legislation and
tional copyright infringement. internal rules.

A practice that is gaining considerable impor- Therefore, it is up to employers to decide

tance in intellectual property matters is escrow. whether or not they tolerate the personal use of
It refers to the deposit of funds, which are held the corporate technological resources they make
in trust by an impartial third party (usually a available to workers for the performance of their
notary) and are released if the conditions agreed professional functions and, where appropriate,
upon by both parties are met. to develop and implement specific policies and
procedures that regulate their use in accordance
with legal and jurisprudential requirements,
6. The importance of making good notwithstanding recognised constitutional rights,
use of the technological resources and minimise any possible risk of undue or illegal
provided by the organisation use.
Creators and Authorship in the Digital Age

The evolution of the use of new technologies Just as corporate technological resources are
and the diversity of corporate resources and regulated, so should the use of personal techno-
technological devices available to employees logical devices for professional purposes – cur-
to carry out their work regardless of their rently known as Bring Your Own Device or
geographical location have marked a major BYOD – be moderated. With respect to the
breakthrough in the development of any busi- company’s control of the use of corporate
ness, but they have also given rise to the need technological resources or company-owned
for companies to manage the risks and abuses computer resources, such as computers (desktop
associated with their use. and laptop), telephone terminals (landline and

148 4. INTELLECTUAL PROPERTY AND COMPLIANCE. GOOD USE OF TECHNOLOGICAL RESOURCES…

mobile), tablets, corporate e-mail inboxes, purposes will require the authorised uses to be
intranet, Internet, messaging services (SMS, specified precisely and guarantees established to
MMS, etc.), it should be noted, first, that article preserve workers’ privacy, such as, where appropri-
20.3 of the ET empowers employers to adopt ate, specifying periods when the devices may be
‘the monitoring and control measures they deem used for private purposes.
most appropriate for verifying workers’ compli- Workers must be informed of the criteria for the
ance with their obligations and work duties, use referred to in this section.
granting due consideration to their human
dignity in their adoption and application’. The above article recognises for the first time
workers’ right to have a measure of ‘privacy’
in the use of digital devices provided by the
employer, forcing the latter to regulate this issue
in policies on the use of corporate technological
resources.

Similarly, the thirteenth additional provision

of the aforementioned law adds article 20 bis
regarding workers’ right to privacy in relation to
the digital environment and switching off:

Workers have the right to privacy in the use of

digital devices made available by the employer, to
switch off from digital technology and to privacy
However, the new Organic Law 3/2018 of 5 De-
against the use of video surveillance and geolo-
cember on the Protection of Personal Data and
cation devices under the terms established in the
Safeguarding of Digital Rights (Ley Orgánica de
current legislation on protection of personal data
Protección de Datos Personales y Garantía de los
and safeguarding of digital rights.
Derechos Digitales) establishes as a significant
novelty in article 87 the right to privacy in the
It should furthermore be noted that in various
use of digital devices in the workplace:
judgements courts have been ruling that an
employer can access corporate technological
1. Workers and public employees shall have the
resources, such as computers or corporate email,
right to protect their privacy in the use of digital
as part of checks carried out on workers (article
devices made available by their employer.
20.3 of the ET).
2. The employer may access content resulting
from the use of digital resources made available to
In this regard, it is worth pointing out that on
workers for the sole purpose of monitoring com-
26 September 2007 the Supreme Court issued a
Creators and Authorship in the Digital Age

pliance with labour or statutory obligations and

judgement that was particularly important as it
guaranteeing the integrity of those devices.
unified the hitherto disparate doctrine in relation
3. Employers must establish criteria for the use of
to corporate control of corporate technological
digital devices, respecting in all cases the minimum
resources.
standards of privacy protection in accordance
with constitutionally and legally recognised social
Specifically, the decision establishes that these
customs and rights. The workers’ representatives
resources fall within the sphere of corporate
must participate in their drafting.
authority enshrined in Article 20.3 of the ET:
The employer’s access to the contents of digital
‘employers may adopt the surveillance and
devices whose use has been allowed for private
control measures they deem most appropriate

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 149

 for verifying workers’ compliance with their as the measures to be adopted, if necessary, to
obligations and work duties, granting due con- guarantee the effective use of computers in the
sideration to their human dignity in the adoption workplace.
and application of these measures’.
Accordingly, if an employee uses a company
The judgement considers that computers are email account for private purposes, contrary to
means of production that belong to the em- these prohibitions and aware of the applicable
ployer ‘as owner or in any other form’ and that checks and measures, the check cannot be
the employer is therefore authorised to monitor understood to violate the employee’s ‘reasonable
their use – which logically includes examining expectation of privacy’ under the terms estab-
them. Furthermore, employees render their lished in the European Court of Human Rights
services using computers, and, consequently, judgements of 25 June 1997 (Halford case) and 3
employers can verify employees’ compliance on April 2007 (Copland case) to assess the existence
them; this is not true of the cases envisaged in of an infringement of article 8 of the European
article 18 of the ET, such as searching lockers Convention for the Protection of Human Rights.
and/or personal belongings, as it establishes
that ‘personal searches and searches of workers’ Regarding workers’ right to privacy (Article
lockers and personal belongings may only be 18.3 of the Spanish Constitution), nor does the
carried out when necessary for the protection of Constitutional Court consider that it has been
corporate property and that of other workers of violated, in that access to messages obtained
the company, within the workplace and during when searching a computer owned by the
working hours. They must be conducted with company in the presence of a notary passes the
utmost respect for the dignity and privacy of the proportionality test to which measures that
worker and in the presence of a legal represen- restrict fundamental rights must be submitted
tative of the employees or, in their absence, of in accordance with the High Court Judgment
another company employee if possible’. of 16 December 1996, that is, ‘if such a measure
is capable of achieving the proposed objective
It likewise establishes that the authority to (principle of suitability); if, in addition, it is nec-
check computers is also justified by the need essary, in the sense that there is no other more
to coordinate and guarantee the continuity of moderate measure for achieving the aim with
work when an employee is absent, such as on equal efficacy (principle of necessity); and, finally,
sick leave or on holiday; by the need to protect if it is measured and balanced, because the
the company’s computer system, which may be benefits or advantages for the general interest to
adversely affected by certain uses; as well by the which it gives rise outweigh the harm it causes
need to prevent corporate liabilities that may to other conflicting assets or values ​(principle of
also arise from certain illegal uses with respect proportionality in the strict sense)’.
to third parties.
Creators and Authorship in the Digital Age

Going into greater detail, the court considers

However, in order for the checks on or access to that the measure is (i) justified, based on well-
the computers made available to employees to founded suspicions; (ii) suitable, for discovering if
be legitimate, the organisation must have pre- the employee was leaking confidential informa-
viously established the rules for their use, with tion; (iii) necessary, inasmuch as it was intended
absolute or partial prohibitions. It must likewise to prove the irregular conduct that led to the
inform workers that checks will be carried out on dismissal, as simply accessing other elements
the use of computers and specify the methods of the communication such as identifying the
or procedures that will adopted in order to check sender or recipient is insufficient; as well as (iv)
whether they are being used correctly, as well measured and balanced, to the extent that the

150 4. INTELLECTUAL PROPERTY AND COMPLIANCE. GOOD USE OF TECHNOLOGICAL RESOURCES…

messages were not about personal but strictly safeguarding the secrecy of communications
business aspects. and opening the door to the need for judicial
intervention to grant validity to intercepted
The Spanish Agency for Data Protection (Agen- communications as evidence, even if corporate
cia Española de Protección de Datos) has issued resources are involved, within the scope of
similar opinions in various legal reports on the criminal proceedings.
matter at hand, stating the possibility of an
employer accessing workers’ corporate tech-
nological resources, especially corporate email, 7. Conclusions
in order to check on their work (article 20.3 of
Royal Legislative Decree 1/1995 of 24 March, Despite the fact that the compliance function
which adopts the Workers’ Statute). is gaining importance today, especially from the
point of view of preventing criminal liability, this
This may be carried out provided that the organ- concept needs to be defined in a broad sense,
isation has previously established ‘rules of use’ as acting according to rules, both optional and
that entail respect for the fundamental rights mandatory, to ensure good corporate gover-
of individuals, in particular, the right to privacy, nance and transparency and good practice in the
the right to secrecy of communications and the organisation.
right to protection of personal data. According
to the criteria followed by the Agency in the Some of these rules grant protection to the orga­
aforementioned reports, these rights would be nisation’s intangible assets (intellectual property).
considered to be guaranteed if (i) the employer
is authorised to access corporate resources Unless an organisation’s innovative ideas and
and this access is based on the achievement designs and its brands are protected in accor-
of a purpose, such as corporate checks, crime dance with the legislation governing intellectual
prevention and continuity of business; (ii) access property rights, any other company may use
is proportional, suitable (the measure is capable them for free, without any kind of limitations.
of achieving the objective), necessary (no more However, when they are protected by such
moderate measure exists to achieve the purpose rights, these assets acquire a specific value for
with equal effectiveness), measured or balanced your company, because they become property
(because its benefits outweigh the harm caused); rights that cannot be sold or used without the
and (iii) it is possible to prove that the worker holder’s authorisation.
was informed in advance of the corporate nature
of the work tools provided by the company, The employer has the obligation to inform
of their use for professional (and not personal) employees of their obligations with respect to
purposes, of the mechanisms that the company intellectual property and the proper use of the
would have established for checking these tools technological resources made available to them
Creators and Authorship in the Digital Age

and the technological means used to carry out to perform the work entrusted to them:
the checks.
a) Intellectual property
Notwithstanding the foregoing, it should be
noted that there is a recent ruling of the Crim- a.1. Agree that, according to articles 51 and 97.4
inal Chamber of the Supreme Court of 16 June of the Intellectual Property Law, rights over
2014 (STS 2844/2014, Appeal 2229/2013) which is any creations that have been developed in the
relevant to employers’ access to corporate email context of the employment relationship will
because it establishes a new criterion, question- automatically and exclusively belong to the
ing the sufficiency of these requirements for organisation.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 151

 a.2. Agree to cooperate with the organisation in or inappropriate material or another type of
a safe and efficient way to ensure that all rights illegal material, or if the company discovers that
over the creations that have been developed are a worker has breached the security measures
duly conferred on the organisation and can be of the organisation’s information system, the
protected and enjoyed by it. organisation may adopt appropriate disciplinary
measures, including disciplinary dismissal. Like-
a.3. Agree to the exclusive right of the organisa- wise, the organisation may initiate corresponding
tion to register in its own name and to its advan- actions as a result of the damages caused, di-
tage any creations developed in the context of rectly or indirectly, by any breach in this matter.
the employment relationship.
b.3. The foregoing will not be affected by
a.4. It will be understood that the wages re- whether or not the worker has obtained a per-
ceived by the worker include any compensation sonal gain or by whether or not the organisation
of any kind to which they may be entitled in incurs losses.
relation to the development of intellectual and
industrial property assets. b.4. In order to examine the implementation
of the foregoing and to carry out checks in the
a.5. Respect intellectual property rights owned workplace to guarantee the security of the
by the organisation or by third parties. organisation’s information and information
systems and to maintain communication when
b) Use of computer systems the worker is absent (for example, due to illness
or holidays) or when communication cannot be
b.1. The organisation will provide the worker guaranteed in another way (for example, through
with the computer systems (Internet access, automatic response or redirection functions), the
e-mail, etc.) that may be necessary for them organisation can access the worker’s electronic
to perform the duties entailed by their job in communications (email and Internet) and check
accordance with the company’s needs and how they use them.
activity. Therefore:

b.1.1. These tools will be used exclusively for the 8. Bibliography

purpose of performing their functions, given
their nature of professional tools. Ascom, Libro blanco sobre la función de compli-
ance, March 2017, https://www.asociacioncom-
b.1.2. However, personal use of these tools is pliance.com/wp-content/uploads/2017/08/
acceptable provided it is kept to a minimum, Libro-Blanco-Compliance-ASCOM.pdf
only where strictly necessary; under no circum-
stances may employees view, download, send or Basel Committee on Banking Supervision,
Creators and Authorship in the Digital Age

receive any kind of material that is indecent or Compliance and the compliance function in banks,
inappropriate to the performance of their work, Bank for International Settlements, January 2005,
or any other type of unlawful material. These http://www.bis.org/publ/bcbs113.pdf
uses will be limited to those which are socially
permitted (article 87 LOPDGG). O’Brien, M., ‘How Corporate Compliance helps
your organization to be accountable’, CARF
b.2. If the organisation detects that a worker has Connection Review, CARF International, Tucson,
used these professional tools improperly, has Arizona, 2006.
viewed, downloaded, sent or received indecent

152 4. INTELLECTUAL PROPERTY AND COMPLIANCE. GOOD USE OF TECHNOLOGICAL RESOURCES…

 Vicente Navarro is an expert in compliance, data
Olmo, Juan Pablo, ‘La función de cumplimiento’,
protection, intellectual property and new technologies.
Gerencia de Riesgos y Seguros, no. 117, Madrid, More than ten years’ experience providing advice
Instituto de Ciencias del Seguro, Fundación on the installation of compliance management and
Mapfre, 2013. data protection systems, as well as on intellectual
and industrial property, money laundering and
Svarzman, Martín, ‘La función de compliance’, El competition in both public and private organisations
Auditor Interno, no. 4, December 2004, Buenos (local public institutions, schools, universities, transport,
Aires, Instituto de Auditores Internos de Argen- automobiles, insurance, financial institutions…);
tina, 2004. compliance officer and Data Protection Officer in
companies in the construction, education, insurance
sectors…; lecturer at the official masters course on
Intellectual Property at the Universidad Pontificia
de Comillas; lecturer at the specialised masters
course on Data Protection (RGPD), among others.

Creators and Authorship in the Digital Age

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 153

 5. Good practice and procedures for
protecting the intellectual property rights to
content in the digital age

José Manuel Tourné

Today no one doubts that the information soci- article, that both digital technology and the
ety has transformed and is transforming the lives Internet offer the content industries an excellent
of human beings in an essential way and with an opportunity to foster direct connection between
impact – as Alvin Toffler pointed out some time creators and their audience and to expand the
ago – that is proving to be as great as that of the business models for enjoying a song, a movie, a
agriculture or industrial revolutions in the past. book or a video game.

Access to cultural and/or entertainment content

is also affected by this deep change, for which 1. Why protect intellectual
not only the Internet is responsible – a part was property rights?
also played by the digital technology used prior
to the emergence of the World Wide Web in the What music, movies, books, video games and
homes of citizens all over the world. cultural content in general mean to human so-
cieties is enough to answer the above question.
Digital technology brought about a significant The economic figures that intellectual property
improvement in the quality that was offered represents would also provide a sufficiently
Creators and Authorship in the Digital Age

to consumers of audiovisual content and, at convincing answer. However, I prefer to begin by

the same time, in the accuracy and speed with quoting a sentence from the conclusions of the
which copies could be made of original products. World Summit on the Information Society that
As a result the so-called ‘audiovisual piracy’, took place in Geneva in December 2003:
which in the mid-nineties was kept at bay using
traditional strategies, became a serious concern Intellectual Property protection is important to
for creators and owners of content. The Internet encourage innovation and creativity in the Infor-
further aggravated the problem as the speed mation Society; similarly, the wide dissemination,
of data transmission increased, but I wish to diffusion, and sharing of knowledge is important
make it very clear, from the beginning of this to encourage innovation and creativity. Facilitating

154 5. GOOD PRACTICE AND PROCEDURES FOR PROTECTING THE INTELLECTUAL PROPERTY RIGHTS TO CONTENT…
 meaningful participation by all in intellectual If we analyse in detail what it costs to make
property issues and knowledge sharing through full a film, it becomes clear that, although their
awareness and capacity building is a fundamental turnover appears very sizeable, these industries
part of an inclusive Information Society. take a very long time to make profits, which are
furthermore quite meagre. Making movies is an
It is obvious that the development of the infor- exciting experience, but it is not cost-free. Be-
mation society and the adaptation of the content fore you even start to shoot the first frame, you
industries to this new business model go hand in have to organise the production, seek funding,
hand. However, the first years of the twenty-first investors; you have to hire screenwriters, search
century have witnessed a clash between the for locations, recruit the crew, etc. Even search-
cultural industries and the new companies that ing for locations requires forking out significant
were created to underpin the information society, sums on travel, professional services, insurance,
especially Internet service providers. Both indus- etc.
tries need to get on in order to provide consumers
with the service they demand, namely fast and Once the funding has been secured – for which
easy access to content using new technologies. the producers often have to mortgage their
The ‘totally free’ model that some advocated as own property – it is necessary to schedule the
part of the wide-ranging space of freedom that shooting and make all the accommodation
the Internet was meant to be is as indefensible as arrangements for the entire cast and crew:
the monopoly on the sale of content and unfair actors, technicians, costume suppliers, carpen-
conditions that others tried to impose. ters, electricians and the long list of profes-
sionals involved in making the film; if you have
Public institutions immediately realised it was ever stayed right until the end of the screening
necessary to regulate the development of the of any feature film, you will have noticed the
information society by protecting the holders of hundreds of professionals who appear in the
content rights and at the same time allowing the credits. However, the investment does not end
information society to develop unhindered. And there: after filming comes post-production, to
the reasons for the ensuing intense regulatory incorporate music, image and sound effects, and
activity are rooted in the economic data that only after montage does the film acquire its true
both sectors represent. personality and can be marketed. To have come
this far it is necessary to have applied for public
From the perspective of the holders of intellec- subsidies, many of which are not paid until the
tual property rights, the European Union has es- film has been released and has achieved mini-
timated that intellectual property (including both mum box-office results. The pre-sale of rights
intellectual and industrial property) accounts for and even the contribution of a television channel
five trillion euros; this represents 39% of gross will probably have supplied some of the cash
domestic product and 26% of jobs; no less than needed to undertake the project, but there are
Creators and Authorship in the Digital Age

56,500,000 jobs throughout the European Union further very sizeable investments that need to be
are provided directly by the intellectual and made: a producer has to study very carefully how
industrial property industries. In addition, these to sell the film in the different channels and start
industries pay their workers wages of up to 40% necessarily by operating in cinemas, protecting
above the average (according to a study by the this business for at least three or four months,
Office for Harmonization in the Internal Market, which is what is known as release windows; to
OHIM, and the European Patent Office, EPO, do so, it must invest further significant amounts
September 2013). These are compelling reasons in marketing expenses. In other words, after
for taking piracy seriously and providing owners having made an investment of around 10 million
with the tools they need to protect their rights. euros for a top category film (A) that will be seen

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 155

 by more than 1,000,000 viewers and generate were significantly lower than the previous year’s.
some 9 million euros in box office revenues, 3.5 The film industry created 17,163 jobs and contrib-
of them for producer and distributor, the latter uted 155 million euros to the public coffers solely
have to invest about 2 million in advertising in terms of VAT (data from ICAA, Fedicine and
and copies, so that the net box office revenue UVE).
is reduced to 1.5 million euros. This means that
they still need to recoup the remaining 8.5 For its part, the videogame sector affected
million by selling the product in other markets 15.8 million players who acquired, during 2017,
(Latin America, United States ...) and through 9,648,658 video games and 1,483,800 consoles,
the rest of the channels: after the cinema, the generating sales of 885 million euros in the
film will be accessible in other channels, such as physical market and 474 million in the digital
home video, either in physical formats (rental market. The videogame sector grew significantly
and sale of DVDs or Blu-ray) or in digital format during 2017 (13.3% in the physical market and
(digital exploitation of pay per view or ‘box 24.1% in the digital market), accounting for more
office’ channels); TV subscription services; and, than 8,000 jobs and contributing more than 285
finally, about eighteen months later, free-access million euros’ worth of VAT to the public coffers
television. Only then can producers find out if (data taken from the AEVI Yearbook).
they have fully recouped their investment and
made any profit.
2. Key features of the content
And we are talking about a product that is sector in the information society
successful – something that is very difficult
to predict in the world of entertainment and In twenty years, the information society has
culture. become part of people’s everyday lives, perma-
nently transforming habits, business strategies
If we take another sector such as videogames, and how we relate to each other; mobile phones
we find very similar situations: only by relying on or tablets have replaced many of the devices
distribution can truly creative projects be under- that were an indispensable part of our daily lives
taken that require many months of preparation, until only recently such as cameras, alarm clocks,
a sizeable investment to maintain a team of torches and diaries; high-speed connections and
many people and a great deal of luck. Devel- the reality of being permanently connected have
oping a video game involves an investment of replaced not only traditional communications
between 15 and 25 million euros, which requires services but even family relations and, of course,
selling more than 350,000 units, something that business relations. That jobs have changed is an
only the ‘Top 5’ achieve. obvious fact: the office is no longer a place, but
a terminal from which it is possible to operate
All in all, these are very dynamic sectors that from practically from anywhere in the civilised
Creators and Authorship in the Digital Age

generate a lot of business and create many jobs. world.

The figures for Spain’s film industry are striking,
but are far from being desirable to maintain This transformation is also evident in access to
a healthy and safe industry: during 2017, 99.8 cultural content: at the beginning of the twen-
million viewers went to the cinema, 2% fewer ty-first century, a film would be premiered in
than the previous year, and generated box-office cinemas; it would then be released in
revenues of 591.3 million euros, 1.8% less than home-viewing formats, which accounted for
in 2016. In the domestic market, 84 million more than 30% of its revenues, followed by
euros were generated from physical sales and pay-TV (subscription), and finally became avail-
64 million from the digital market. Both figures able on free-access television about two years

156 5. GOOD PRACTICE AND PROCEDURES FOR PROTECTING THE INTELLECTUAL PROPERTY RIGHTS TO CONTENT…
after its cinema premiere. Nowadays, the release After televisions, which are owned by 99%
process is very fast and audiences can choose of homes, mobile phones are the electronic
from a wide range of options that also include devices with the greatest presence in homes:
films that have not been commercially released 98%, followed at some distance by computers
but become popular thanks to the Internet. All (79.5%) and landlines (75.8%), which are gradually
this is leading to changes in the business model dwindling.
and makes it necessary to devote efforts to
informing people about what is available in Tablets are present in 54.5% of households,
different areas. In this field, now that nearly 5 surpassing DVD or Blu-ray players (53.5%).
billion people in the world own smartphones, the
presence of content on the Internet is essential. As for the Internet, more than 70% of people use
Indeed, according to data published by Google, it daily and more than 80% at least once a week.
43% of consumers use at least two different Although online purchases have been making
devices to sequentially access the same content. a comeback over the past three years, they are
Whereas mobile phones are the most commonly still well behind other Internet uses: only 43%
used device to access content first thing in the of people have bought goods over the Internet,
morning, they are replaced by computers during whereas 75.8% use it to view content on ‘sharing
working hours, and tablets are the devices most sites’, evidencing that the idea of the
​​ Internet as
frequently used between eight in the afternoon a free space remains powerfully present.
and midnight, according to Comscore Device
Essentials 21 January 2013. The conclusion is simple and has been frequently
denounced by the holders of intellectual
property rights: citizens do not bargain when
acquiring computers, smartphones or high-speed
connections to access content – one of the most
frequent activities – yet they are reluctant to pay
for content itself.

The reason is that it is so easy to access free

content (that is largely illegal) as proven by the
figures provided by the Coalition of Content
Creators and Industries (Coalición de Creadores
e Industrias de Contenidos).

3. Audiovisual piracy: the major threat

The study on equipment and technology use in
Creators and Authorship in the Digital Age

homes published every year by Spain’s National We have already mentioned how difficult and
Institute of Statistics (Instituto Nacional de expensive it is to make a film or produce a video
Estadística, INE) reveals very significant data: the game. Creating a song or writing a book also
percentages of homes that own a computer of require considerable creative effort and success
some kind has gone from 55% in 2006 to almost is not always easy; and then, when it happens,
80% in 2018; the percentage with access to the piracy appears. Make no mistake, only successful
Internet has risen from 40% in 2006 to over 86% works are pirated; pirates have no need to take
in 2018; and the percentage of broadband con- risks, they go for the safe option. Therefore,
nections is up from less than 30% in 2006 to more any newly released film, album, video game or
than 86%, the same as Internet access, in 2018 book can be accessed free of charge via various

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 157

 Internet pages. It matters little that pirated films they have only begun to fall slightly as a result of
are often recorded in a cinema with background some of the measures adopted in recent years.
noise (coughing, laughter, etc.) and that the Despite the significant increase in the legal
quality is mediocre; the users of these pages are consumption of content, the piracy rates which
delighted to boast about the money they ‘have have been hindering the growth of the cultural
saved…’ and entertainment content sectors every year
remained the same in 2017.
This is demonstrated by the results of the
Observatory on piracy and consumption habits of The figures are scandalous: 1.560 billion music
digital content, a survey compiled every year by files, 726 million movies, 241 million video
the GFK consultancy for the Coalition of Con- games, 419 million books, 113 million broadcasts
tent Creators and Industries. According to the of football matches and 945 million episodes
survey, more than 50% of the users who access of television series were circulated illegally in
websites with pirated content do so because Spain during 2017 – a total of more than 4 billion
they do not want to pay for something that they contents circulated fraudulently over the Inter-
might not like or because they are already paying net during 2017. Their equivalent value is 21.899
for the Internet connection and are unwilling to billion euros, a by no means insignificant figure
spend more. for sectors which, as mentioned earlier, create
wealth and jobs.

Incidentally, this figure does not represent the

value the abovementioned sectors have really
lost. However, the GFK study has estimated
these industries’ loss of earnings: by asking
respondents how much they would have really
bought if they had not had access to pirated
content. The resulting figures are quite a close
reflection of reality: the book sector’s revenues
would have been 203 million euros higher in 2017
if there had been no offer of pirated goods; the
video game industry would have grown by 242
million euros; television channels would have
As well the unauthorised content available earned an additional 167 million; cinema and
on the Internet there are the pirate CDs sold video would have made a further 453 million
by street vendors, spread over the ground on euros, music 507 million euros and football 285
blankets. These pirate CDs lack guarantees and million euros more if piracy had not existed.
compete with an industry that pays taxes and
Creators and Authorship in the Digital Age

complies with labour, local and other regulations

to keep afloat a business that is increasingly
difficult to sustain. According to the Spanish
Videographic Union (Unión Videográfica Es-
pañola, UVE), in Spain these hawkers’ sales came
to equal the number of sales of legitimate DVDs
and BR discs.

Every year the aforementioned Observatory

publishes figures on the growth of piracy, and

158 5. GOOD PRACTICE AND PROCEDURES FOR PROTECTING THE INTELLECTUAL PROPERTY RIGHTS TO CONTENT…
These figures are fully consonant with the Forqué Award for his film Atrapa la bandera, it
amounts that those sectors have failed to earn took more than 355,000 hours to make.
compared to their historical highs in previous
years. Ultimately, the bare figures also translate What can we do about this problem?
into jobs: the aforementioned content industries
employ about 70,000 people in our country, but
more than 20,000 jobs could have been created 4. Procedures for protecting
in 2017 had it not been for piracy. What is more, the intellectual property rights
the public coffers ceased to receive 371 million to content in the digital age
euros from all sectors in the form of VAT and 203
million additional euros in personal income tax. We will focus on answering the question asked
in the title of this work. The strategies are very
well defined and were suggested by the World
Intellectual Property Organization (WIPO) many
years ago: only a combination of suitable legisla-
tion, the implementation of laws and awareness
will make it possible to combat piracy effectively.
I would add a fourth strategy that the digital age
is very clearly calling for, namely the promotion
of new business models: the industry has had,
and must continue, to make a notable effort
to ensure that users can directly access their
content in an affordable and simple way; further
effort needs to be made to offer what consumers
are demanding. We will now examine the stage
Spain is at in developing these strategies.

4.1. Appropriate legislation

Spanish legislation on protecting intellectual

property was significantly updated at the end
of 1987 with the new Intellectual Property Law.
Former article 534 of the Penal Code was also re-
Therefore, when attempting to define what formed; the offence was not defined, and the ar-
piracy is, we must first define it as an antisocial ticle had to be adapted to provide for the types
practice, since it harms us all. It is also classified of conduct made possible by new technologies.
Creators and Authorship in the Digital Age

as an offence in articles 270 and the following The Intellectual Property Law of November 1987,
in the Penal Code; the Supreme Court has very with its successive reforms, ended up incorpo-
aptly called it parasitism. And, of course, it rating the consolidated text of the Intellectual
causes damage, but not only to the well-known Property Law (TRLPI) of 1996 which, during the
actors or actresses of Hollywood or our country, following years, progressively incorporated a few
or even only to the industries: as I mentioned, modifications and the European directives aimed
the credits of any film list the names of hundreds at regulating the information society.
of people whose work was essential to making
the film and who are not at all known. As Nicolás The consolidated text of the Intellectual Property
Matjí pointed out when receiving the José María Law clearly states that we are dealing with a type

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 159

 of private property; the owner, unless proven contracts, based on the principle of work per-
otherwise, is presumed to be the person who is formed in exchange for a wage; it is producers
identified as such in it – that is, it is not necessary who hold the exploitation rights as they run the
to register the work in any registry, although it financial risk of producing the film and, in return,
is highly advisably to do so as a means of proof obtain the profits from it.
in the event of litigation. The law envisages the
different types of works that can be produced, Article 88 of the TRLPI sums up this divergence
including joint and collective works such as films, very well when it establishes that, through the
and also establishes the economic and moral contract for the production of the audiovisual
rights the author enjoys simply by virtue of having work, the rights of reproduction, distribution and
created a work. A particularly important article is communication to the public are presumed to be
number 17, which exclusively entitles the author assigned to the producer – subject to the limita-
to exercise the exploitation rights of the work, tions specified under this title – as well as those
especially those of reproduction, distribution, of dubbing or subtitling the work. In some cases,
communication to the public and modification. the law requires authors to grant express licence
for the distribution of films for use at home, for
In the field of cinematographic works, the example, or for radio broadcasting.
degree of detail to which they are referred in
current legislation, which establishes a copyright I stated earlier that the successive reforms of
system created by European law, is quite star- the TRLPI made it possible to incorporate the
tling. The various authors involved in creating provisions of the European directives and, more
an audiovisual work are defined and specified in specifically, four fundamental ones. The first,
article 87 as the director or maker, the authors Directive 2000/31 on electronic commerce, gave
of the script and the adaptation, those of the rise to the Information Society Services Law (Ley
staging or dialogue, and the composers of the de Servicios de la Sociedad de la Información,
music created especially for the work. It is LSSI) establishing a system of accountability for
striking that it does not list any of the other service providers. Directive 2001/29 on copyright
jobs that are closely linked to the creation of an expressly limits private digital copies and estab-
audiovisual work, such as the director of photog- lishes certain actions to protect the intellectual
raphy or the film editor, whose rights seem to property rights of holders, which were reformed
be included within the sphere of the director’s; by articles 138 and 139 of the TRLPI. Directive
in any case, the legislation makes it possible to 2004/48 on respect for intellectual property
establish a kind of ‘profit sharing’ of the various established, among other rights, the right to ob-
authors through the transfer of their rights to tain information from Internet service providers
their own creation that is incorporated into about alleged infringers of intellectual property
the final work. These ‘remuneration’ rights are rights who are users, through the courts and as
exercised via collecting societies and have not part of a lawsuit. Last – even though it is the
Creators and Authorship in the Digital Age

always been welcomed by users of the latter’s earliest of them all – Directive 1995/46 on data
repertoire. The legitimate activity performed protection has continued to progress in subse-
by collecting societies has not been fully under- quent years, helping to anonymise many types
stood and has sometimes been used as a pretext of Internet conduct and, despite being designed
for legitimising piracy or its use. Similarly, the to protect everyone’s rights, also hinders the
different approach to the distribution of rights in investigation of infringements committed on the
the United States – handled through ‘copyright’ Web. The implementation of these directives
– has led to a few misunderstandings: there, was always surrounded by a lot of media noise
authors are hired to produce a film and enjoy and initially failed to strike a balance between
no further rights than those established in their the various interests at stake:

160 5. GOOD PRACTICE AND PROCEDURES FOR PROTECTING THE INTELLECTUAL PROPERTY RIGHTS TO CONTENT…
 • The LSSI granted service providers much without prejudice to any other sanctions and
larger safe havens than those initially remedies available, rightholders should have the
provided for by the directive, to the possibility of applying for an injunction against an
extent that, if there was no order from a intermediary who carries a third party’s infringe-
‘competent authority’, the service provider ment of a protected work or other subject-matter
was completely exempt from liability with in a network.
respect to the content that it hosted or
accessed through them. Or the one established by recital 38:

• The wording of article 31.2 establishing the Digital private copying is likely to be more
limit on private copying was unfortunate widespread and have a greater economic impact.
and in Spain led the limit to be confused Due account should therefore be taken of the
with users’ right to make copies for their differences between digital and analogue private
personal use as soon as they had paid copying and a distinction should be made in
for the so-called ‘private copying levy’, certain respects between them.
which sparked growing controversy. Some
politicians and even government officials Far from following the problem-solving recom-
defended this ‘right’ of users even though it mendation attributed to Napoleon, the Spanish
actually constrained the copyright holders’ government thought that setting up a commit-
rights and was designed to act as a buffer tee was the best way of reaching agreements
against the legitimate prosecution of on self-regulation rather than imposing legal
anyone making unlicensed copies of the limitations that were not very popular with most
rightsholder’s work. of the population.

• The right to information enshrined in article On 28 January 2000, through RD 114/2000, the
8.1 of the 2004 Directive was not incorpo- Inter-ministerial Committee was set up to clamp
rated into the reform of article 256 of the down on activities that violated intellectual
Civil Procedure Law (Ley de Enjuiciamiento and industrial property rights. This legislation
Civil) until 2014. For a long time this de- formalised the existence of an ‘anti-piracy
prived holders of intellectual property rights commission’ which the Subdirectorate General
of the opportunity to file the civil actions for Intellectual Property had been pressing for to
that have proven highly effective following channel the various proposals submitted to the
the actions brought by the Promusicae and government by victims of piracy. The purpose of
MPA associations. the RD was to combat ‘unlawful activities com-
monly known as piracy’ given the harmful effects
Given all the media noise and the protests of the they had not only on the owners but also on the
promoters of excessively large freedoms for the market, ‘consumers, companies, society, as well as
Creators and Authorship in the Digital Age

Internet, Spanish legislators ignored some of the the state itself’. The purpose of the commission
recommendations made by the directives, such was ‘to study and coordinate specific measures to
as that provided by recital 59 of the copyright ensure the best reaction of the Public Administra-
directive: tion to unlawful activities of this kind’.

In the digital environment, in particular, the There was no doubt about it: piracy had harmful
services of intermediaries may increasingly be used effects on society as a whole and was illegal,
by third parties for infringing activities. In many and the government was creating a commission
cases such intermediaries are best placed to bring to study and coordinate measures against it. Its
such infringing activities to an end. Therefore, results were non-existent.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 161

 In September 2002 the Education, Culture and and effective system of protection were raising
Sports Committee of the Congress of Deputies the awareness of all levels of society in general,
set up a Subcommittee to study measures to and of the Public Administrations in particular,
combat the piracy of goods and rights protected on the seriousness of the problem and the need
by intellectual property, referring to the ‘truly to combat it at all levels’.
dramatic scope’ of the problem. The words of
the spokesperson of the Popular Group, Beatriz Under the principles of cooperation and col-
Rodríguez Salmones, were telling: ‘Whenever we laboration among all public administrations,
have raised the issues of intellectual property, a wide-ranging commission was established
this intangible property, we have generally found made up of representatives of all the public
that we are living in a country that is not espe- authorities and the private sector: ‘The solution
cially respectful of it, but we have now reached to the problems caused by the infringement of
total permissiveness’. intellectual property requires the involvement of
all of them’. Representatives of eleven ministries,
As I mentioned, the advent to the government of the autonomous communities and the city
of a new political group in 2004 led to the disap- councils, of the Council of Consumers and Users,
pearance of the Inter-ministerial Committee and of the collecting societies, of the IT and com-
the establishment of two new committees which munications industries, of information society
separated intellectual property from industrial intermediaries and of various sectors such as
property. An agreement of the Council of Minis- distributors and importers of information tech-
ters of 8 April 2005 approved the government’s nology equipment, manufacturers of telecom-
Comprehensive Plan for the reduction and munications equipment, etc, of associations for
elimination of activities that violate intellectual the protection of intellectual property, and four
property as a basic institutional instrument and prestigious professionals with a track record in
point of reference in the fight against piracy. protecting intellectual property rights, appointed
Royal Decree 1228/2005 of 28 October created by the president, and a representative of the
the ‘Intersectorial committee for combating ac- highest representative state-level business asso-
tivities that infringe intellectual property rights’. ciation, also named by the president, resolved to
The government was aware of ‘the persistence attempt to implement proposals ranging from
of the phenomenon of piracy’ and of the ‘need legislation to agreements, gathering statistics,
to achieve maximum collaboration between the education, etc. No fewer than thirty-five people
public and private sectors, in order to address met once a year in a room of the Biblioteca Na-
the problem in its entirety and make it possible cional to endeavour to establish priorities to put
to coordinate actions whose result should be an end to the drain caused by piracy, which was
most effective in eradicating this unlawful continuing to grow with the appearance of new
conduct’. technologies that improved the quality of the
information and the speed of communications.
Creators and Authorship in the Digital Age

The RD reflected the conclusions of the Edu-

cation, Culture and Sport Committee of the In addition to the plenary, the RD established
Congress of Deputies adopting the conclusions a shorter permanent commission made up of
and report prepared by the Subcommittee to at least fourteen members who were to meet
study measures to combat the piracy of goods three times a year. A working group was set up
and rights protected by intellectual property within this commission with the ‘urgent’ goal of
and agreed on a plan for ‘legislative, police, reaching self-regulation agreements among the
international cooperation and awareness-raising intellectual property rightsholders and informa-
measures, while at the same time indicating that tion society service providers.
the primary objectives for establishing a genuine

162 5. GOOD PRACTICE AND PROCEDURES FOR PROTECTING THE INTELLECTUAL PROPERTY RIGHTS TO CONTENT…
There were plenty of good intentions, but they direct their users if they do not have effec-
neither were self-regulation agreements reached tive knowledge that the information to which
nor were the essential legislative reforms they refer or which they recommend is unlawful
addressed, as the courts of justice would soon or that it damages third-party goods or rights’.
make clear. And because the aforementioned law indicates
that effective knowledge only exists ‘when a
The security forces, usually the fastest off the competent body has declared the illegality of
mark when it came to practical decisions, began the data, given orders for it to be withdrawn or
investigating websites providing links, which made inaccessible, or the existence of the injury
were the main driving force behind Internet has been declared, and the provider knew of
piracy. They proceeded to intercept and close the related decision, notwithstanding detection
down many of them in the so-called ‘Internet and content removal procedures that providers
Download Operations’: in 2006 and 2007, the implement through voluntary agreements and
Technological Research Brigade (BIT) of the other means of effective knowledge that could
National Police Force (CNP) and the Civil Guard be established’, if there is no declaration of
Computer Fraud Group completed several illegality, the service provider cannot be held
investigations of the webmasters of these sites accountable.
and proved that the owners of these pages
providing links were often the same people who Secondly, in line with the doctrine cited (Ortega
obtained the files (by making recordings of films Díaz and Garrote Fernández Díez), the court
shown in cinemas, for example) and uploaded holds that there are two types of links: surface
them. The operations were reported on by the and deep. The former do not infringe intellectual
Ministry of the Interior with the support of the property rights as they merely help a user locate
ministries of Culture and, occasionally, Industry, content ‘without having to type the name of the
but differences were beginning to appear in the page’.
criteria and perspectives of the two government
departments. The court disregarded the allegations of the
private prosecutors, who claimed that the link
The court investigations soon revealed the short- page had, in turn, uploaded unlicensed content
comings of our regulatory framework, which had and stored it in cyberlockers, to all of which
been lagging behind in the implementation of the second paragraph of the abovementioned
European directives. article 17 would have been applicable: ‘The
exemption from liability established in section 1
On 11 September 2008, the Provincial Court of will not apply in the event that the recipient of
Madrid rejected the appeal of the intellectual the service acts under the direction, authority
property rightsholders who had filed a complaint or control of the provider that facilitates the
against the activity of the Sharemula link page location of such content’.
Creators and Authorship in the Digital Age

and confirmed the dismissal of the case and the

closure of the proceedings, setting a precedent In this connection, it is important to remember
that would significantly influence intellectual that the public prosecutor did not file any
property protection in Spain. charges either and requested that the case be
dismissed and dropped based on the application
The court ruled that there was no offence, in of Circular 1/2006 of the Public Prosecutor’s
the first place, because the providers of services Office, which decriminalised the exchange of
consisting of links, referred to in article 17 of Law files, considering them to be ‘private copies’,
34/2002 on Information Society Services (LSSI), and established a new concept of profit motive:
‘are not responsible for the information to which the Supreme Court’s previous definition of it

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 163

 as ‘obtaining any advantage, even of a merely The economic and financial crisis, ‘the most
contemplative nature’, was replaced by ‘commer- serious in many decades’, as stated in the
cial profit motive’ when interpreting article 270 explana­tory memorandum of Law 2/2011 of 4
and the following. March on a Sustainable Economy (LES), gave im-
petus to several reform programmes which were
I do not intend to analyse the abovementioned outlined in the memorandum and were designed
Circular. However, the criticism it sparked from to facilitate investment and the promotion of
intellectual property rightsholders and even various economic activities to boost competi-
from the US government, which cited it in its tiveness and economic development based on
Special 301 Report, was one of the reasons that sectors other than real estate and to create jobs.
prompted the approval of the forty-third final
provision of the Sustainable Economy Law (Ley It promoted the development of the informa-
de Economía Sostenible, LES) that was designed tion society and laid the foundations for the
to amend several of the aforementioned laws legal reform the cultural industries had been
and create the second section of the Intellectual repeatedly calling for. Admittedly, they had been
Property Commission, more popularly known as demanding very specific reforms to increase
the ‘Sinde Law’. the accountability of service providers, which,
as mentioned above, enjoyed much larger safe
The fact is that the ruling of the Provincial Court havens than provided for by the European
of Madrid confirmed that the implementation directives on electronic commerce, copyright
of the European directives designed to protect and respect for intellectual property.
copyright in the information society had left
a few lacunae that made it very difficult to The government, however, considered that the
demand any kind of accountability from service solution lay in a single administrative procedure
providers. and accordingly established the second section
of the Intellectual Property Commission for the
It also brought to a halt the commendable work purpose of ‘safeguarding intellectual property
of the security forces by causing uncertainty rights from infringement by information society
about the legal consideration of the activity of service providers under the terms laid down in
links pages. Not only would their actions lack the articles 8 and similar of Law 34/2002 of 11 July
necessary judicial support for obtaining evidence on Information Society Services and Electronic
of these offences, but they could even find Commerce (Ley de Servicios de la Sociedad de la
themselves liable to be sued for overstepping Información y de Comercio Electrónico).
their limits. In fact, threats were published by
Internet users’ associations and groups of Inter- The Spanish government rejected the proposals
net service providers. to incorporate procedures similar to those that
were already reaping results in France through
Creators and Authorship in the Digital Age

All this coincided with the end of the term of of- the Hadopi law and courts of justice, the United
fice and of the hopes content owners had pinned Kingdom (Newzbin), the Netherlands (Mini-
on José Luis Rodríguez Zapatero’s government, nova, Leaseweb and KPN), Germany (Marion’s
which made it clear that the strategy of ‘appro- Cookbook, Rapidshare/GEMA and Hansenet)
priate legislation’ needed to be tweaked in Spain. and Sweden (The Pirate Bay), as well as in the
Rodríguez Zapatero’s second term addressed United States (DMA), New Zealand and Korea.
the – hugely unpopular – challenge of revising In all the above cases, the courts ruled that
the legislation in force and creating an ad hoc the service providers had the duty to perform
‘competent authority’ to allow swift and effective surveillance and/or prevention tasks once they
procedures for taking down illegal content. had knowledge of the illegality of the content,

164 5. GOOD PRACTICE AND PROCEDURES FOR PROTECTING THE INTELLECTUAL PROPERTY RIGHTS TO CONTENT…
and to implement measures such as blocking or safeguarding intellectual property rights against
takedowns. violation by those responsible for information
society services. The Section may adopt measures
The result was the forty-third final provision to interrupt the provision of an information society
of the LES amending Law 34/2002 of 11 July service that violates intellectual property rights or
on Information Society Services and Electronic to take down content that violates the aforemen-
Commerce, Royal Legislative Decree 1/1996 of tioned rights provided that the provider, directly or
12 April approving the Consolidated Text of the indirectly, acts with a profit motive or has caused,
Intellectual Property Law and Law 29/1998 of or is likely to cause, economic damage.
13 July governing Contentious-Administrative
Jurisdiction, for the protection of intellectual Final provision 43 of the LES requires that the
property within the information society and action of the Second Section be adapted to
electronic commerce. a notification procedure with the option of
voluntary takedown and that the adoption of
The first modification introduced by the LES measures aimed at interrupting the service or
was aimed at making service providers account- taking down the content be carried out with the
able when intellectual property is violated. To authorisation of the court, namely the Chamber
do so, it incorporated a new principle in article 8 for Contentious-Administrative Proceedings of
of the LSSI: the Audiencia Nacional.

1. In the event that a certain information society Since its creation, the Second Section of the
service infringes or could infringe the principles Intellectual Property Commission has had to
expressed below, the competent bodies for its adapt to a few reforms to improve its results
protection, exercising the functions legally as- based on experience. It is currently regulated by
signed to them, may adopt the necessary measures article 195 of the TRLPI. However, in order for
to interrupt its provision or to remove the data it to begin operating it was necessary to adopt
that violate them. The principles referred to in this regulations whose procedure illustrates very
section are the following: clearly the weakness of the awareness-raising
[...] e) The safeguarding of intellectual property rights. strategy that we will examine later. Suffice it to
say, for the time being, that it was the following
Secondly, it allowed a competent body to re- government, that of Mariano Rajoy, that finally
quest from service providers the data related to approved the regulations on 30 December 2011.
the person responsible for an information society
service that has allegedly violated the aforemen- RD 1889/2011 of 30 December regulating the
tioned principles. functioning of the Intellectual Property Commis-
sion stemmed from a very clear aim:
However, at the behest of the parliamentary op-
Creators and Authorship in the Digital Age

position groups, it was established that judicial The digital revolution is providing a formidable
authorisation would be required for this data to opportunity for the creation and dissemination
be handed over. Logically, the LES also created of cultural content, but it has also given rise to
the competent body: the Second Section of the new ways of infringing intellectual property rights,
Intellectual Property Commission: [...] and is causing, in addition to the violation of
intellectual property rights through Internet pages,
It falls to the Second Section, which will act in huge losses to the cultural industries sector and
accordance with the principles of objectivity and the consequent loss of jobs and wealth in a sector
proportionality, to exercise the functions provided that generates nearly 4 percent of Spain’s Gross
for in articles 8 and similar of Law 34/2002, for Domestic Product [...]

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 165

 The slow and ineffective activity of the Second proof (that the gain obtained exceeds 400
Section during the first years forced the Govern- euros), even though the very activity is in itself
ment to explore new reforms that were finally an offence. The text of 2015 makes it possible to
put into practice between 2014 and 2015: the take into account the personal circumstances of
proposals made by the sectors from the outset, the offender without having to change that legal
all of them in relation to the implementation of nature.
the European directives, were finally accepted
and the following reforms were approved: It can therefore be said that although what has
been done is ‘paper over the cracks’, Spanish
Articles 138 and 139 of the TRLPI were improved intellectual property legislation currently does
to allow civil actions against intermediaries the job of protecting holders’ rights.
whose services were used by an alleged infringer;
their effectiveness was boosted, measures to be
adopted by the Second Section were added and 4.2. Enforcement of the laws
– at long last! – article 256 of the Civil Procedure
Law (LEC) allowing exercise of the right of However, laws alone do not protect intellectual
information laid down in article 8.1 of Directive property rights. They need to be enforced by
2004/48 was reformed. those entrusted with this mission. As we have
seen so far, rightsholders have three ways of
The Penal Code was also improved: on the one defending themselves:
hand, the penalties of imprisonment for the
most serious cases were extended, making it • The criminal route: it is true that the 2006
possible to authorise investigations not autho- Circular of the Public Prosecutor’s Office
rised by the courts for less serious offences, and was superseded by a new Circular, 8/2015,
the provision of links was clearly defined as an which has allowed the public prosecutor to
infringement: act more in favour of intellectual property
rights through the computer offences
The same penalty shall be imposed on those who, division. However, the excessive slowness of
in the provision of information society services, in court proceedings is hampering the effec-
order to obtain a direct or indirect economic gain, tiveness of this route; the experience of the
and to the detriment of a third party, provide in Federation for the Protection of Intellectual
an active and non-neutral manner and without Property (Federación para la Protección de
limiting themselves to merely technical treatment, la Propiedad Intelectual, FAP) shows that
access or location on the Internet of works or on average proceedings drag on for seven
other subject matter subject to intellectual prop- years, and therefore are not precisely an
erty without the authorisation of the holders of effective deterrent. In addition, the court
the corresponding rights or of their assignees, in permission that is required for certain
Creators and Authorship in the Digital Age

particular by offering orderly and classified lists of measures that are essential to investigating
links to the works and content referred to above, Internet offences is not always granted;
even if those links had initially been provided by this makes it very difficult to determine the
the recipients of their services. identity of whoever is hiding behind an IP
address.
The 2015 reform of the Penal Code also reme-
died the mistake made in 2010, when, in order • The civil route: in this field, the enforcement
to reduce the penalties for street vendors, the of articles 138 and 139 of the TRLPI has
legal description of the offence was modified, obtained positive results within more reason-
making it a result offence requiring impossible able time periods: Commercial Court no. 6 of

166 5. GOOD PRACTICE AND PROCEDURES FOR PROTECTING THE INTELLECTUAL PROPERTY RIGHTS TO CONTENT…
 Barcelona, ​​in ordinary proceedings 666/2016, draft approving the implementing regulations of
issued a judgement resolving a lawsuit the ‘Sinde Law’ and, together with the ruling of
brought by several film producers against the Court of Justice of the European Union on
Internet access providers. The court made the so-called ‘Svensson case’ (C-466/12), laid the
it clear that the applicant film producers foundations for considering that the provision of
own a number of works that two web pages links constitutes communication to the public,
made available to a new audience without both in the regulations of the Second Section
the consent of their owners and ordered of the Intellectual Property Commission and,
that the defendants block or prevent their subsequently, in the Criminal Code and in the
clients from accessing the aforementioned TRLPI.
web pages from Spain, informing them of
the technical measures they will adopt and The enforcement of laws is directly related to so-
of the steps taken , and also ordered them to ciety’s awareness of certain problems. As we will
foot the cost of these measures. see, Spanish society was much more in favour of
freedom to share content on the Internet than
• The administrative route: via the Second of protecting intellectual property rights.
Section of the Intellectual Property Com-
mission. Although slower than desirable, In Gijón, Vigo, El Vendrell and Calafell, to cite
it is making headway and has already had some examples, measures were adopted or
a considerable number of pirate websites publicly requested by their municipal officials
blocked or taken down. The aforemen- not to prosecute street sales, ‘even if illegal’, of
tioned legislative reforms will also allow for products whose distribution violated intellectual
additional penalties for repeat offenders or or industrial property rights. Similarly, in some
failure to collaborate. This route has proven communities, courts of justice or certain judges
to be highly effective in Italy, which copied argued that hawking should be considered an
the Spanish model and devoted many more atypical activity in that it should be excluded
human and material resources to it. from articles 270, 273 and 274 of the Penal Code
and that action should be taken against it using
The enforcement of laws is essential to the other routes such as civil or criminal. This inter-
effectiveness of the strategies and to ensuring pretation extended to many examined cases of
that their action is combined with impetus at copyright fraud on the Internet. The differences
the legislative level. The influence of Decision in judges’ opinions was reflected in contradictory
530/2011 of the Provincial Court of Vizcaya decisions in very similar cases and the problem
published in mid-October 2011 is a good example was only resolved following the adoption of the
of the foregoing, as it sentenced the people abovementioned legislative reforms.
responsible for the fenixP2P.com and MP3-es.
com websites to a year’s imprisonment for
Creators and Authorship in the Digital Age

copyright fraud, ruling that links constitute 4.3. Awareness raising

communication to the public. The decision
overruled the acquittal issued by the Criminal I have already commented on this aspect, which
Court and argued in a very detailed manner that is essential to making suitable laws that protect
the activity of websites providing links can be intellectual property and enforcing them with
classified as the offence described in article 270 the necessary strictness. In Spain the protection
of the Penal Code. of intellectual property rights clashed with
Internet users’ defence of freedom to share files.
This decision was taken into account by the And it was not just users either: the media and
Council of State in its report on the preliminary senior officials of public institutions considered

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 167

 it a priority to defend the establishment of the regulations on content downloads on the Inter-
information society from the perspective of net (Diario Expansión, 13 December 2011).
increasing broadband connections and the use
of new technologies in homes, turning a blind The headline ‘Spain, the best Dotcom customer’
eye to the need to foster responsible use of the published by the newspaper Sur de Málaga
Internet, which was reduced to the protection reflected the satisfaction of MEGA’s founder,
of minors and little else. Indeed, they failed to Kim.com, at having Spaniards top the ranking of
notice that ‘pirate’ pages were being viewed by users of its download portal.
minors who had uncontrolled access to all kinds
of content, including pornography or online Although delayed, the Spanish government’s
gambling, supplying their personal details and reaction, especially from 2014 onwards, at last
systematically violating the rules that regulated led to a certain change in mentality and it seems
the activity of Internet service providers. that Spanish society is starting to realise, albeit
slowly, what intellectual property contributes
A good example of the scant awareness of in terms of jobs and revenues and the need to
digital piracy in Spain is the total lack of negative protect it. Only in this way will it be possible to
reactions to the passing of the Law on Gaming develop the information society with sufficient
and the creation of a National Gaming Commis- assurances that electronic commerce will grow
sion empowered to shut down a betting website at the same pace as the use of new technologies.
by means a simple administrative procedure.
Compare this to the Second Section of the I would like to end by adding a fourth strategy
Intellectual Property Commission, whose pro- to the three described so far, to which WIPO
cedure calls for court intervention at two stages limited its recommendations.
and entails a much more complex process. Both
laws were processed at the same time.
4.4. Development of new
This lack of awareness at the institutional level business models
was reflected not only in the US government’s
well-known special 301 report that included The content industries have made a remarkable
Spain among the countries on the watch list on effort to adapt to the new environment. They
account of its limited protection of intellectual have come to terms with the fact that consum-
property rights, but also in a few media. For ers want to exercise greater control over the
example, on 12 August 2010 Variety magazine content they access and are offering various
published an article expressing surprise that two possibilities. Portals such as Spotify are a good
Catalan municipalities (El Vendrell and Calafell) example. Portals have also been created in the
had allocated areas to illegal hawking after audiovisual world to allow people to access
the police had failed to crack down on these content legally over the Internet. In Spain, the
Creators and Authorship in the Digital Age

activities. website ‘Me siento de cine’ provides information

and direct links to portals where films and
Similarly, whereas heads of government such as other audiovisual works can be downloaded
Obama, Sarkozy, Angela Merkel and Berlusconi legally and is part of the European initiative
and even the Queen of England were issuing firm Agorateka run together with other countries.
antipiracy statements, Spain’s prime minister, The aforementioned portal offers information on
José Luis Rodríguez Zapatero, assured listeners the legal content available on the Internet and
in a radio interview that he had decided to stop adds another option for users to decide how and
the Law Sinde from being passed owing chiefly when they want to watch a movie or a television
to the ‘major opposition on social media’ to the series. Admittedly, the market still does not

168 5. GOOD PRACTICE AND PROCEDURES FOR PROTECTING THE INTELLECTUAL PROPERTY RIGHTS TO CONTENT…
 José Manuel Tourné Alegre holds a Law degree from the
allow films to be premiered simultaneously on all
Universidad Complutense of Madrid, is a commercial
channels, or even in all countries, but the ‘release investigator, earned a diploma from Upime in October
windows’ between them are shorter, and that 1990, and has been a practising lawyer at ICAM since
suits consumers. 1984. He has taught postgraduate courses at the
Universidad Pontificia Comillas since 2001 and has
I am convinced that protecting intellectual prop- worked at the Federación para la Protección de la
erty will continue to be a priority, but not only Propiedad Intelectual de la Obra Audiovisual (FAP)
for the rightsholders – it will also be important for more than thirty years, having held the post of
for the rest of those interested in the develop- director general. He is also president of the Unión
ment of the information society as a responsible Videográfica Española (UVE) and a member of the
and secure environment. board of the International Video Federation (IVF).
As part of his work he has been directly involved in
drafting and enforcing the European laws and directives
related to the protection of intellectual property.

Creators and Authorship in the Digital Age

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 169

 6. Blockchain and smart contracts. Legal
implications in the intellectual property field

José María Anguiano

Introduction Bitcoins: paying for a pizza. Consequently, the

identity of the creator(s) of this technology is
The term Blockchain refers to a computer computationally verifiable through the appli-
procedure (protocol) that was initially designed cation of the private key that is known only to
to support ‘cryptocurrencies’ such as Bitcoin. ‘Nakamoto’.
It is attracting growing interest, and the legal
community is no exception. This is only logical: Bitcoin is the first and most popular cryp-
Blockchain is simply a combination of different tocurrency. It is an anonymous (bearer) and
technologies that serve as proof of record. Its decentralised electronic currency. What is
mathematical nature allows it to effectively emu- groundbreaking is not the electronic nature of
late the functioning of money, and it can be used the currency – most monetary transactions in
for various authentication purposes. It basically developed countries are electronic – but the
consists of codified procedures that prove the decentralisation of the procedure. It is a system
existence of events and manifestations that that aims to ensure a robust cash flow without
occur on the Internet. It is also a new expression the involvement of third parties, and without the
of what has been called ‘the collaborative econ- transaction requiring accounting coordination
Creators and Authorship in the Digital Age

omy’. between the debtor’s and the creditor’s banks.

The term was coined in an article published in Bitcoin is just one of the various phenomena
2008 under the pseudonym ‘Satoshi Nakamoto’33 behind a trend of thought that is emerging
which described the functioning of the famous strongly. To understand it, it is necessary to
crypto-Bitcoin. The author or authors of the examine the philosophy behind the Internet, the
article also own the private key that was used exchange of files, open code and Blockchain.
to sign the first transaction carried out using

170 6. Blockchain and smart contracts. Legal implications in the intellectual property field
Anarcho-capitalism and Our identities have no bodies, so, unlike you, we
crypto-anarchism cannot obtain order by physical coercion. We
believe that from ethics, enlightened self-interest,
The first of these terms, anarcho-capitalism,34 and the commonweal, our governance will emerge.
was coined in 1950 by Murray N. Rothbard of the Our identities may be distributed across many of
Austrian School of Economics and expresses a your jurisdictions. The only law that all our con-
trend of thought that combines political anar- stituent cultures would generally recognize is the
chism – advocating the rejection of centralised Golden Rule. We hope we will be able to build our
forms of power such as the state – with the particular solutions on that basis. But we cannot
defence of private property and the free market. accept the solutions you are attempting to impose.
His followers hold that the markets behave We must declare our virtual selves immune to your
better without interference of any kind, through sovereignty, even as we continue to consent to
self-regulation, and advocate the disappearance your rule over our bodies. We will spread ourselves
of states’ tax-raising, regulatory and authorita- across the Planet so that no one can arrest our
tive powers. Basically, they pursue a shift from thoughts.
trust to consensus.
A trend within anarcho-capitalism is crypto-­
Its influence is growing, as is its economic sway. anarchism.36 Its followers, jealous of their
The collaborative economy is a good example of privacy – which is increasingly threatened by
the social and economic revolution that it can technology – speak of the use of encryption
trigger. The latest decisions of the CJEU (taxi algorithms to preserve the privacy of communi-
drivers of Barcelona vs Uber) and of the Euro- cations. Their ability to anticipate the social and
pean Commission (penalising the irregularities economic effects of technological evolution is
of the tax arrangements between Apple and the uncanny. Back in 1992, Timothy C. May stated
Irish Government) show how states are reacting in the Crypto Anarchist Manifesto that:37
to the anarchist craze.
Computer technology is on the verge of providing
The struggle is by no means new. Back in 1996, the ability for individuals and groups to commu-
John Perry Barlow penned his ‘Declaration of nicate and interact with each other in a totally
Independence of Cyberspace’ on the occasion of anonymous manner. Two persons may exchange
the Davos (Switzerland) World Economic Forum messages, conduct business, and negotiate elec-
summit and in reaction to the passing of the tronic contracts without ever knowing the True
US Telecommunications Reform Act.35 Analysed Name, or legal identity, of the other. Interactions
from the perspective of hindsight, its contents over networks will be untraceable, via extensive
are revealing. It anticipates the efficiency of re- routing of encrypted packets and tamper-proof
electronic anonymity at avoiding, at least partly, boxes which implement cryptographic protocols
the state ‘yoke’: with nearly perfect assurance against any tamper-
Creators and Authorship in the Digital Age

ing. Reputations will be of central importance, far

We are creating a world where anyone, anywhere more important in dealings than even the credit
may express his or her beliefs, no matter how ratings of today. These developments will alter
singular, without fear of being coerced into silence completely the nature of government regulation,
or conformity. the ability to tax and control economic interac-
Your legal concepts of property, expression, tions, the ability to keep information secret, and
identity, movement, and context do not apply to will even alter the nature of trust and reputation.
us. They are all based on matter, and there is no The technology for this revolution – and it surely
matter here. will be both a social and economic revolution – has

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 171

 existed in theory for the past decade. The methods teristic of how money – in any format – works
are based upon public-key encryption, zero-knowl- is that whoever uses it to pay a third party
edge interactive proof systems, and various exhausts the subsequent right to dispose of it,
software protocols for interaction, authentication, which is passed on to the creditor who has just
and verification. The focus has until now been been paid, and so on. Otherwise, anarcho-money
on academic conferences in Europe and the U.S., would enter an inflationary spiral that would lead
conferences monitored closely by the National to its disappearance.
Security Agency. But only recently have computer
networks and personal computers attained suffi- When cash is used (coins and notes), the
cient speed to make the ideas practically realizable. transfer of possession prevents the payer from
And the next ten years will bring enough additional making further use of it. The problem of double
speed to make the ideas economically feasible and spending is solved by the loss of possession of
essentially unstoppable. something tangible. The handing over of metal
The State will of course try to slow or halt the or paper money prevents double spending.
spread of this technology, citing national security
concerns, use of the technology by drug dealers The use of cash also allows the identity of
and tax evaders, and fears of societal disintegration. the creditor and debtor to be known only to
Combined with emerging information markets, them, as the case may be. Their identities are
crypto anarchy will create a liquid market for any concealed to anyone who has not witnessed
and all material which can be put into words and the payment. It nevertheless has many disad-
pictures. And just as a seemingly minor invention vantages such as remote payments, theft, the
like barbed wire made possible the fencing-off of limitations of weight and volume inherent in
vast ranches and farms, thus altering forever the the metal nature of money, etc. For these and
concepts of land and property rights in the frontier other reasons, the format and nature of money
West, so too will the seemingly minor discovery have progressively evolved. However, there has
out of an arcane branch of mathematics come to always been a common goal of avoiding double
be the wire clippers which dismantle the barbed spending. Thus, for example, notes are simply
wire around intellectual property. bearer securities and the initial owner’s right of
Arise, you have nothing to lose but your barbed disposal ends when the notes are handed over to
wire fences! someone else.

Anarcho-money If we want anarcho-money to work, it also has to

be agile. Since the requisite for the effectiveness
One of the yearnings of anarcho-capitalism is of any money is to avoid its multiple use, a single
to have money that allows transactions to be accounting record will need to be kept of all the
conducted outside the control of the states and transactions of the anarcho-currency users. This
their central banks; money that is adopted vol- accounting requirement will grow as the number
Creators and Authorship in the Digital Age

untarily and is accepted as a universal means of of adoptions and transactions increases.

payment that ensures the same anonymity that
money currently provides bearers; something The solution is collaborative bookkeeping.
that allows a decentralised, agile, anonymous The parties involved in the money transaction
and efficient cash flow. carry out coordinated or recurrent accounting.
However, the practical drawbacks of this collab-
For the cash flow to be effective, it is essential orative approach are easily imaginable. Reaching
for the anarcho-money used, like any other agreements in an analogue environment requires
currencies, to solve what has been called the time and effort that would soon undermine the
‘double spending problem’.38 An inherent charac- agility of the anarcho-money.

172 6. Blockchain and smart contracts. Legal implications in the intellectual property field
What if we bring in computing? Although banks can prevent double spending by
achieving an agile and secure cash flow, they do
It may be inferred from the foregoing that so in a centralised manner. With the involvement
anarcho-money is a utopian pursuit in an ana- of financial institutions, electronic money is
logue environment. It might be feasible for small obtained, but not anarcho-money. Neither are
communities, but it would soon become inviable. the transactions anonymous nor is their account-
Currently, money is primarily electronic and ing performed in a decentralised or collaborative
fiduciary. If we consider direct transactions that manner.
use computers as well as credit and debit cards,
about 90% of transactions in developed coun- To achieve this, we need a single computerised
tries are electronic. The issuance and circulation ledger in which transactions are recorded in a
of new money is the responsibility of states, collaborative manner (the contents of the entry
which act in a coordinated manner through the are decided on by a group of people acting in a
IMF based on macroeconomic parameters and coordinated or consensual manner). In order for
political decisions. this ledger to have the potential to verify, it must
meet three probatory requirements: (i) authen-
Bearing in mind the predominantly electronic ticity, (ii) unambiguity and (iii) integrity.
nature of money, is it possible, with the aid
of computer programmes and mathematical
algorithms, to emulate the functioning of bearer Authenticity of the distributed ledger
money in an agile and reliable environment? To
achieve this, it should be stressed, we would A computerised record, as a means of verifying
have to receive all payment orders, verify the the existence of a payment, must be authentic.
identity of the debtor, update the balance and We will take authentic to mean that it faithfully
record the transaction in an accounting record – reflects the transactions carried out. Since, in
and do all this in a decentralised manner. order to be able to dispose of the money, it is
necessary to check, by consulting the record,
With electronic money, the problem of double that the available transactions have not been
spending is solved by involving third parties: previously spent, its authenticity is vital in order
through the coordination of the accounting to prevent the money being disposed of more
systems of the intermediaries who come than once.
between creditor and debtor. They act as agents
who implement an order to receive or pay At present, the authenticity of the entries in
money. If the electronic transfer of the money any registry is based on trust. When you want
were direct, without the involvement of third to guarantee the authenticity of the entry you
parties to verify the existence of the balance and entrust a non-involved third party to do so and
coordinate the accounting entries, the debtor look after the registry where it is recorded.
Creators and Authorship in the Digital Age

could always question the existence of previous Basically we are talking about third-party proof,
transactions that would have deprived them of in which the third party can be authorised to
their right to dispose of the money. The inter- guarantee the authenticity and immutability of
mediaries act as witnesses to the transaction. these entries.
As their testimony is electronic, they have a
computer record that attests to the existence From an anarchist perspective, the custodian of
of the payment order and its completion. a centralised registry is also corruptible. They
Banks, however, are centralised intermediaries can always modify the registry for the benefit of
and therefore do not comply with an essential those involved in the transactions recorded in
requisite of anarcho-money: decentralisation. the entries. In other words, they can be criticised

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 173

 in the same way as banks. They are centralised deliberately send false information to the rest.
intermediaries. This is how it goes:

But how can we achieve an authentic, de- In a war scenario, a group of m Byzantine gener-
centralised registry? An alternative to using als lead various armies that are laying siege to an
centralised intermediaries is to ensure that the enemy city. They have to agree on whether to
work is sufficiently shared between them so that attack or retreat in a coordinated manner. There
no scheming takes place. How can we achieve a is only one general who can issue the order (the
shared intermediary? By having a large number commander). The rest are lieutenants.
of people receive the payment orders and check
that the balance is large enough to go ahead The generals communicate through messengers.
with them. And how can I trust the honesty of Their messages can only transmit two possible
all these new intermediaries and be sure they do commands: ‘attack’ or ‘retreat’. The commander
not come to agreements on their verifications? gives the order to all the lieutenants, who in
There are two ways. The first is to make sure turn report on it to each other. In the end they
they do not know each other. Anonymity makes all receive a number of messages equal to the
scheming more difficult. The second is to use number of generals involved in the siege minus
consensus algorithms. themselves.

One or more of the generals may be traitors (t).

Consensus algorithms. The We call the rest loyal. The aim of the traitors is
Byzantine generals problem to send the wrong information in order to ensure
that the loyal generals do not reach an agree-
In 1982, Leslie Lamport, Robert Shostak and ment. For example, if the commander is a traitor,
Marshall Pease published a paper39 that drew he can send contradictory orders to the various
conclusions from work carried out for the lieutenants (telling some to attack and others
US government. The mathematical formula to retreat). If a lieutenant is a traitor, he may,
examined in the paper was originally used to in order to confuse the rest of the lieutenants
control the launching of ballistic missiles via the and lead them to believe that the traitor is the
Internet. The goal was to establish the reliability commander, report that he was sent the oppo-
of communications in open networks in extreme site order to that which he really received (if he
cases where there are presumed to be nodes was ordered to attack, he will report he was told
that aim to disrupt them or create misleading to retreat, and vice versa).
impressions about their content. It has become
a key feature of any distributed computing To solve the problem, we need to come up with
scheme, such as TCP/IP protocol or P2P. The algorithms that allow the generals to make
mathematical formula solves what has been decisions in a consensual manner in this uncer-
Creators and Authorship in the Digital Age

called the ‘Byzantine generals problem’.40 tain communicative context. The mathematical
formulation of the solution to the Byzantine
The Byzantine generals problem is a metaphor generals problem is m = 3 (t) +1, where m is the
for something that occurs in computer systems number of generals involved and t the number of
that have a common goal: to agree on a ‘joint traitors.
action’ starting from a hierarchical structure.
One of the nodes, which is ranked more highly, If we replace the generals with computers
sends an order that the rest of the nodes have to (nodes), we have a suitable formula for achieving
send on to each other. It is based on the premise a consensus on which of the verifications of the
that some of the nodes are not reliable and various third parties should finally be entered in

174 6. Blockchain and smart contracts. Legal implications in the intellectual property field
our collaborative accounting. The verification access a repository where a public key, known
that has greater consensus among those who to all users of the system, was univocally linked
participate in the system will be recorded.41 to a private one, which was known only to the
person to whom it is assigned. Files could thus
be sent encrypted without the need to reveal
Unambiguity the decryption key. For this purpose, the signee
encrypts the message with their private key. To
Another of the requisites of the registry that verify the identity of the issuer, the person who
records the payments is that it must be able to receives it applies their correlative public key. If
assign the disposal and receipt of the transac- the message is decrypted, it means that it was
tions to specific people. If A pays B, it must be previously encrypted with the private key that
able to deduct the amount paid from A’s account only the signee has.
and add it to B’s. However, since the object of
the anarchist system is anonymity, how is it pos- However, there is an essential difference in the
sible to grant someone ownership of the money way ‘asymmetric key cryptography’ is used in
while preserving their anonymity? The answer is Bitcoins. To download a Bitcoin wallet it is not
by assigning ‘cryptographic keys’ that grant the necessary to prove, or even show, your identity.
‘owner’ exclusive access to a file (wallet), which The person who knows/possesses the private
is the only one from which payments can be key is therefore the only one who can access
received or made. the wallet and dispose of the associated funds
without having to declare his/her identity. We
Exclusive access to the electronic wallet is are talking about a ‘key’ with cryptographic secu-
obtained using the same technology as for rity that has the abovementioned fundamental
electronic signatures, which is known as ‘Public advantage of anonymity and the consequent
Key Infrastructure’ (PKI). Although this article disadvantage that losing or forgetting it entails
does not intend to examine issues related to losing the associated funds.
electronic signatures, it seems essential to make
a few brief points. As the generated keys are not only asymmetric,
but also two-way – I can encrypt with the public
Signing a file can consist of ‘encrypting’ its con- key and decrypt with the private one44 – the
tents using an ‘algorithm’42 to attribute identity Bitcoin cryptocurrency uses this feature to assign
to the holder of the key for decrypting it. Until the ‘wallet address’ to the recipients of the
the early 1980s, only ‘symmetric encryption algo- payments, which is the ‘hash function’ of each
rithms’ were known. The algorithm encrypts the one’s public key, as we shall see in due course.
text and generates the decryption key. Sending
signed files electronically had the disadvantage It works simply. When a ‘Bitcoin wallet’ is
that, along with the signed file, it was necessary requested, software that generates both keys
Creators and Authorship in the Digital Age

to send the decryption key – which de facto (public and private) is downloaded and the public
invalidated the procedure for the issuance of key is ‘exported’45 to the system, becoming
statements between remote unknown users. It indissolubly linked to its corresponding private
is rather like sending a locked safe with the key key that is associated with the requester’s wallet.
that opens it sellotaped to one side. Nobody, however, requires the requester even
to show their identity. This means that anyone
The first asymmetric encryption algorithms were can request and obtain an unlimited number
formulated in the 1980s.43 Following their inven- of wallets and perform as many transactions as
tion, it became possible for any of the parties to they wish anonymously.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 175

 Integrity 1. It is irreversible. The encryption has no
possible decryption. The algorithm con-
Another requirement of the ‘distributed ledger’ verts text into an alphanumeric sequence
that supports electronic payments is that it of characters with no apparent meaning.
must remain intact; that its contents may not be However, I will never be able to obtain the
tampered with. Today transactions are recorded original text from that fixed sequence of
in a centralised ledger. Integrity is guaranteed characters. Rather than encrypting, they
by providing/showing a certificate issued by represent the contents of any digital file
the custodian of the ledger. The certifying hexadecimally.
instrument is based on trust. No one except
the custodian has access to the material in their 2. It compresses. One of its common uses
care. The custodian can be invested with specific is the compression (reduction) of files. It
auctoritas that presupposes their trustworthiness converts large files into the abovemen-
and enables them to issue certificates confirming tioned sequence of characters. They are
the contents of each entry and the date it was commonly used together with ‘asymmetric
recorded in the ledger. Physical or organisational key cryptosystems’ in electronic signatures.
measures can also be adopted to prevent the The hash is obtained to avoid having to
addition or deletion of entries, for example, by apply cryptographic algorithms (which are
serialising the pages of documentary ledgers. In very taxing on computers) directly to very
short, the presumption of integrity is based on heavy files.
trust and even on legal requirement.
3. It guarantees that by applying the algo-
When the ledger is distributed, a twofold rithm to the same text I will always obtain
solution is proposed: (i) a chronological chain the same fixed-size hexadecimal sequence
of transaction blocks, where the latest trans- of characters. However, if I change just
action to be recorded is linked to previous and one character in a text of, say, one hun-
subsequent transactions, forming a chain of dred pages and reapply the algorithm, I will
transaction blocks that gives its name to the get a different sequence of characters.
technology; and (ii) the existence of distributed
copies of the ledger among the participants in 4. It is fast to compute. A hash of a given
the system. We could talk about the ‘dissem- file is obtained almost instantaneously.
ination of the record of proof’. Mathematical In addition, its short length means that it
procedures, specifically ‘distillation algorithms’, does not take up much storage space.
are used to achieve both purposes.
5. The nature of these algorithms means that
not only can they be applied to cleartext
Distillation algorithms (unencrypted), but also that a hash of
Creators and Authorship in the Digital Age

another or others can be obtained, or of a

Distillation algorithms do not encrypt but repre- hash combined with text.
sent mathematically. By applying them to any file
I get an alphanumeric (hexadecimal) 46 sequence On the basis of this latter characteristic, complex
of characters normally of a standard length (from hash structures can be built, such as the one
30 to 35) which is called a hash. Bitcoin crypto- designed by Ralph Merkle in 1979, known as a
currency uses the SHA-256 algorithm, which has ‘Merkle tree’.47
the following characteristics:

176 6. Blockchain and smart contracts. Legal implications in the intellectual property field
Merkle’s design is based on a set of transactions, hashes. The hash summarising a transaction is
which must be even in number. They are incorporated into the next one, just as the hash
grouped into pairs, and each pair is hashed. The that represents a block of transactions is also
resulting hash values are then grouped into pairs incorporated into the next block. Hashes act
which are in turn hashed, and so on until you get as pointers which link transactions to others.
a single hash known as the ‘root of the tree’ or Accordingly, if someone wants to tamper with
‘root hash’. the chain, they will have to take into account
this feature and the mathematical difficulty it
poses. In addition, the security of the procedure
increases constantly, as every ten minutes a new
block is added to the chain.

The fact that the hash value is irreversible (you

cannot get cleartext – unencrypted – from
a hash) means that we are dealing with an
instrument that verifies through comparison.
The only way of verifying the integrity of a file is
It has the following characteristics: to apply the ‘distillation algorithm’ to cleartext
(unencrypted) and check that the same sequence
1. Any modification of a transaction will of characters is obtained.
affect all the hashes above it and will
invalidate the value of the root. The same
happens if new transactions are added. How Bitcoin works
It would be necessary to rebuild the tree
from the beginning in order to take them Having analysed the verificatory requirements of
into consideration. the system and the technologies on which they
are based, it is now appropriate to ask how the
2. The intermediate hashes become useless, above technologies are combined to emulate
as in order to verify each of the trans- the functioning of ‘bearer’ money in electronic
actions it is sufficient to check the ‘root format. In short, how does Bitcoin work?
hash’. As stated earlier, this final value is
unique and is generated by an immutable When someone wants to pay with Bitcoins
combinatorial process that includes all all they have to do is sign the payment order
the transactions of the group. Each of the (transaction) with their private key and send it
transactions is therefore verified simply by through the system. It is vital to understand that
checking the ‘root hash’, making it easy to when you pay in Bitcoins there are no balances,
verify the elements of the whole – in this but previous transactions. When you dispose of
Creators and Authorship in the Digital Age

case the block transactions. a previous transaction of, say, five Bitcoins, you
lose all of it. Bitcoin thus functions in the same
3. The number of transactions does not vary way as cash: you transfer the whole amount (you
the size of the ‘root hash’ (its size is the lose possession of it). If you expect change, you
same whether it groups together only four will be the recipient of a new transaction. This
transactions or a million). will be for the result of subtracting what you
have actually spent from the value of the trans-
The result of applying these algorithms – the action you use. For example: if you intend to pay
hash – is inherent in this technology. The chain three Bitcoins and have a transaction of five, you
of blocks that is formed is a concatenation of will get a two-Bitcoin transaction back.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 177

 The transaction has three clearly differentiated spend it). To do this, the header hash is recorded
parts: the input, the output and the header. in the input of the transaction that uses it.

The input information includes: (i) the hash of The user of the ‘cryptocurrency’ might want to
the preceding transaction, signed (encrypted) pay different payees with a single transaction or
with the private key of the person who was require change. Therefore, both the input and
previously the payee and is now transferring the the output can also be multiple. For example, I
amount – or, to put it another way, the signature might use several transactions to make a single
of the hash of the transaction that provided payment. If I have two transactions, one of three
them with the Bitcoins they now have; and (ii) Bitcoins and another of two, I can use both
their public key, so that when the transaction is to settle a debt of five Bitcoins I owe a single
verified the information encrypted in the previ- recipient of the transaction (multiple input).
ous input line can be accessed. In short, it When the amount of the previous transaction
includes the information needed to link that is greater than the number of Bitcoins that I
transaction with the previous one (which is want to transfer, I arrange a ‘multiple output’,
spent), giving rise to the first links in the famous where one of the payees transfers back Bitcoins.
chain. The amount of this transaction is the difference
between the balance of the input and that of the
output. As stated above, this is a new transac-
tion, for the amount of the change, where the
spender is also a payee.

But I stated earlier that the payment order sent

to the system is signed. What do I mean by this
term? What is the system? To help understand
this, it should be explained that two types of
nodes are involved: those only interested in
receiving and sending Bitcoin payments and those
that also want to be rewarded for working for the
system and – returning to the comparison with
The output incorporates: (i) the number of metal currency – are given the name of miners.
Bitcoins that are transferred and (ii) the hash
of the payee’s public key. Since the key is a The first type of nodes, those which only want to
file, the distillation algorithm SHA-256 can be send or receive transfers, access the system
applied, resulting in a hexadecimal sequence of through the wallet. This software, in addition to
characters that faithfully represent that key. As the features required for operation, includes a
stated earlier, it is used as the wallet address of cryptographic module which (i) generates the
Creators and Authorship in the Digital Age

the recipient of the transaction. Therefore, the asymmetric encryption keys, (ii) exports the public
output incorporates the information needed to key to the system (signature verification data) and
ensure that the transfer reaches its destination. (iii) enables the private key (signature creation
data) to be used by the person who has down-
Once both the input and the output have been loaded it. Once the wallet is installed, system
recorded, the hash of the entire transaction users are equipped to operate (send and receive
(input + output) is calculated. The result of this payments). As has been said, nobody requires
calculation is the header of each of the trans- them to even show their identity. To be able to
actions and will act as a pointer that links this spend, it is sufficient for someone to send a signed
transaction with the subsequent ones (those that transaction to the system (with their private key).

178 6. Blockchain and smart contracts. Legal implications in the intellectual property field
Miners To achieve this, those who decide to become
miners install a computer programme that func-
People become miners voluntarily, and do tions in a distributed manner and generates for
not need to prove their merits or meet any each of them an updated version of the universal
subjective requirements. Their task is twofold: ledger incorporating all the transactions mined
to perform the collaborative management of to date. They start by verifying the input of each
the accounting record, called a ledger, which transaction. To do so, the installed software
underpins the cryptocurrency, and to issue new performs three checks:
money units. In short, they help create a chrono-
logical and universal master register where each (i) That the transfer has been signed with a
and every one of the transactions carried out private key correlating with the public key
by those who pay with Bitcoins are recorded, in associated with the wallet.
Creators and Authorship in the Digital Age

strict order of arrival.

(ii) That the hash of the previous transaction
that is included in the output of the transaction
Collaborative bookkeeping that is being verified matches a transaction
recorded in the system in which the present
The miners who choose to join the system are spender was the payee – in other words, that the
the people who receive each of the transactions output of the transaction includes the hash of
signed by the payers. Their task is to create a the public key of the person who was previously
chronological and universal ledger and do so in a the payee and is now the spender.
collaborative, agile and effective way.

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 179

 (iii) That the above transaction has not pre- Merkle’s structure ends and, simply by compari-
viously been spent by the person who is now son, makes it possible to verify the integrity of all
making the payment. To do so, each miner’s the transactions of which it is made up.
programme checks that this output has not been
included in any input. In the first layer, the ‘block hash’ is recorded,
namely the result of running the SHA-256
If the transaction is not successfully verified, it is algorithm on the hash of the last block added to
not processed, and the signee is notified. If it is, chain and the ‘root hash’ of the transactions that
the miners each move onto the next transaction make it up. The resulting hexadecimal sequence
and so on, forming blocks of transactions in a of characters will be part of the second layer of
time interval. the next block.

But, returning to the structure of the second

The blocks layer, it is also necessary to record the nonce.
What does this term mean? In technology it
Miners do not just verify transactions. Their next refers to a string of bytes for single use. It is the
task is to build blocks of transactions. They do so mathematical equivalent of the term ‘hapax’. In
working bottom up in three clearly differentiated literature, hapax refers to a word that appears
layers: (i) the block hash, (ii) the header and only once in a work or in an author’s entire
(iii) the block transactions in cleartext (unen- oeuvre. If we replace word with byte and work
crypted).48 with set of files, we can gain an idea of the mean-
ing. In the Bitcoin world it refers to a number
that constitutes what is called ‘proof of work’.
Structure of the block

Starting from the bottom, in the third layer, Proof of work

the transfer is recorded by the miner, in case
their block is selected to be added to the chain. The choice of the block that is finally incorpo-
Then, in the same layer, all the transactions rated into the chain is no trivial matter. In order
that make up this block are added, in cleartext for it to be totally secure (that is, system users
(unencrypted). cannot double spend), it is not enough for the
miners to verify the contents of the transactions.
Block hash Or for them to make blocks with the different
transactions received and bind these blocks
Hash of previous block
+ root hash of block together using hashes as pointers between links.
transactions + nonce It is also necessary to guarantee that loyal nodes
prevail over disloyal nodes – that is, that nobody
Creators and Authorship in the Digital Age

Number of new Bitcoins

credited to miner has managed to subvert the effects of the chain.

Rest of block transactions

To solve this issue, the block that is finally added
to the chain is that of the miner who manages
The second layer features three entries: (i) the to win a special kind of race: the first to solve a
hash of the previous block, (ii) the ‘root hash’ of computational challenge.
the transactions previously recorded in the first
layer and (iii) the nonce, which constitutes proof And what is the computational challenge in
of work, as we will see later. It should be remem- question? It is related to the hash that heads the
bered that the ‘root hash’ is the hash in which block of each of the miners who compete with

180 6. Blockchain and smart contracts. Legal implications in the intellectual property field
each other to add theirs to the chain (remember mean that the amount defrauded would have
that the hash is a hexadecimal string of char- to be very substantial to make the effort worth-
acters, making no apparent sense, which rep- while.
resents the block formed by each of the miners).
It might also be thought that the miners with the
Each one must find a new hash that is the result greatest processing power enjoy an advantage
of combining a random number with the hash when it comes to finding the nonce. However, it
of their block, so that this new hash begins with should be remembered that each miner’s block
a set number of zeros. The specific number of hash is different from those of the rest of the
zeros that precede the rest of the characters in miners because each one incorporates an output
the hash is established automatically by the sys- recorded by them that includes the hash of their
tem according to the number of transactions and wallet address, which will be rewarded if their
miners there are. The correction factor expects block is finally added. For this reason, the com-
about ten minutes to be spent on solving each putational challenge will be different for each of
challenge. the miners and, consequently, they will all have
similar possibilities of solving it and accordingly of
To find this hash, they add a figure to their block adding their block to the chain. As it is a chal-
hash and run the ‘distillation algorithm’ to get a lenge that is solved by computing power or brute
new hexadecimal sequence of characters that force (trial and error), no one knows in advance if
must meet the requirement. Imagine that the a miner is going to find the nonce immediately or
miner begins adding the number 1 to their hash. will require several hundred thousand attempts
They run the algorithm and find that the result before hitting on the right combination. This
(the new hash) does not meet the established ensures sufficient randomness to make luck a
requirement (it is not preceded by the number decisive factor in solving the challenge. It would
of zeros required). So they try again, adding a 2 take 50% of miners’ pooled computing power to
instead of a 1 and so on until the resulting hash gain an advantage in the challenge.
meets the mathematical requirement (to be
preceded by a particular number of zeros). The
figure which, when added to the hash of the Adding new blocks to the chain.
miner’s block, meets the condition established by The necessary consensus on the
the computational challenge receives the name winner of the proof of work
of nonce.
When a miner manages to solve the compu-
The challenge poses an initial drawback. The tational challenge they send their block to the
miners taking part in the race are anonymous system so that the others receive it and use
and might have conspired to alter the master its hash to put together the next one. Before
register. By pooling their computing power, accepting the block, the rest of the miners verify
Creators and Authorship in the Digital Age

they could add non-authentic transactions to not only the transactions, but also that the miner
the chain or prevent the necessary consensus has completed the proof of work. To do this,
that guarantees the authenticity of the ledger. their computers verify that the hash resulting
It is estimated that this could be accomplished from the combination of the block hash and the
with computing power higher than 50% of that nonce starts with the established number of
of all miners combined. However, when there zeros. However, adding blocks to the chain is not
is a sufficient number of miners, if a demanding as simple as it seems.
computational challenge is also established, the
high cost (in terms of hardware and electricity) To start off with, the distributed nature of the
of achieving superior computing power would invention poses a disadvantage. The chain is

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 181

 formed as a result of the shared work of distant since it took place. As a new block is added every
nodes (miners), which have to transmit the ten minutes, it is considered that when five more
information. Therefore, if several miners have additions have been made and approximately
managed to complete the proof of work almost sixty minutes have elapsed, the transactions are
simultaneously, some nodes may receive one final. This circumstance means that an attack on
miner’s block first, and others that of another. 49 the chain must necessarily be carried out swiftly.
As a result, some will use one hash to build their After that time, when a new block has been
next block and others will use a different one to added to the chain, anyone wishing to tamper
build theirs. The chain thus bifurcates into two with it will have to start from scratch.
lines of different blocks, and the repository thus
loses its unambiguity and the verificatory nature
of the chain of blocks is challenged. Issuance of new monetary units

We stated earlier that miners have a twofold

task: collaborative keeping of the ledger that
supports the ‘cryptocurrency’ and releasing new
monetary units into the system. It is precisely
the latter task that gives miners their name.
They are called miners because they do the
equivalent job of traditional miners in the digital
It can also happen that a node may wish to world. Whereas traditional miners extract the
eliminate a specific transaction from the chain metal used to mint coins, in the case of cryp-
in order to use it again, generating a new line tocurrencies, modern miners are the only ones
that starts from the block before the one of the authorised to inject new monetary units into the
transaction that is to be reversed. In both cases, system. And how do they manage to do so? By
we are dealing with what is known as ‘forks’ or obtaining a reward from the system if their block
‘bifurcations’ in the chain, when two lines of is finally added to the chain.
different blocks emerge from a particular block.50
To understand this, we need to go back to
And how is this contingency solved? Well, by the race between miners: the computational
consensus. The loyal miners who receive several challenge. New monetary units are incorporated
blocks simultaneously will choose the longest into the system by rewarding the miner who has
block (the one which has been accepted by completed the proof of work and added their
more of the other miners that participate in block to the chain. As we have seen, the output
the formation of the chain). As approximately of each block includes the wallet address of the
every ten minutes a new block is completed, the miner who has built it, in case their block is the
shorter line is gradually abandoned. No miner one that is added to the chain. As a new block
Creators and Authorship in the Digital Age

wants to accept a line they know that will finally is completed approximately every ten minutes,
be discarded. It should be borne in mind that the Bitcoins are constantly created. Indeed, miners
likelihood of the disloyal line prevailing progres- participating in the system do not spend their
sively decreases as every ten minutes a new block money on acquiring the appropriate hardware
is added to the chain. That is why it is often said and on paying for the electricity consumed by
that Bitcoin transactions are not definitively their equipment just for the fun of it. They are
registered (they can still be cancelled) until an out to make money. They invest to obtain the
hour after the block was mined. If a fork occurs, reward that is transferred to the miner whose
the problem can be understood to have been block is added to the chain. This reward consists
resolved when five new blocks have been added of a decreasing amount of Bitcoins: it is halved

182 6. Blockchain and smart contracts. Legal implications in the intellectual property field
every 210,000 blocks (approximately every four To sum up, miners can be doubly rewarded:
years), until it reaches the 21 million Bitcoins that by the system and by the people who order
are planned to be issued. It is assumed that no transactions (who pay). At present, the former
new Bitcoins will be issued after that. Up until method is more significant, but direct rewards
November 2011, the reward was 50 Bitcoins for (transaction mining fees) will gradually become
each block that was added to the chain. From prevalent as the other type, rewards paid by the
this date until July 2016 it was 25. Since then it system, progressively decrease.
has been 12.5, which at the current exchange rate
is the by no means negligible sum of $128,500.
It is reckoned that these rewards paid by the Blockchain as a means of proof
system will have disappeared by 2140. After that
miners will rely on the people who order the From a legal perspective, Blockchain is above all
payments for their remuneration. This will mean a means of proof and allows the procedure to
that Bitcoin users will have to include in their be adduced or produced as evidence supporting
transfers an output for the miner who completes parties’ claims in the event of a dispute.
each block.
The adduction or production of such evidence,
This is not miners’ only source of income. They especially if challenged, requires a judicial deci-
also receive ‘transaction fees’ or Bitcoin mining sion. To assess this type of evidence, the legal
fees. Everyone who makes transactions (those community may, in my opinion, choose between
who pay) includes in the output a small payment regarding it as a mathematical procedure, ad
of, say, 0.0001 BTC for the miner who manages matematicatem,52 consisting of immutable statis-
to complete the block that adds that transaction tical realities, or analysing in depth the different
to the chain. Miners’ income is therefore sup- procedures used and weighing up their effective-
plemented by the incentives incorporated in the ness as sources of particular evidence. Actually,
transactions that make up their block. nowadays it is easy to find examples of the
isolated use of these technologies. For instance,
To understand this properly, it is necessary to electronic third-party evidence is often used. 53
realise that when transactions are signed they The third parties do not merely attest to what
are not immediately verified, but go to a sort of occurs digitally. Some also disclose transaction
‘waiting room’ called ‘Mempool’,51 where they re- hashes to guarantee their integrity. The truth is,
main in ‘limbo’. Miners pick out the transactions however, is that no real legal controversy has yet
from the Mempool to verify them and add them arisen over the provision of certificates by these
to their block. We might be forgiven for thinking intermediaries.
that miners pick transactions at random, but this
is not the case. There are ‘block explorers’ on the Electronic signatures are also commonly used
market which are capable of viewing the data in traffic. Most of those employed so far are
Creators and Authorship in the Digital Age

contained in blocks, including the transaction not signatures based on the use of ‘public key
fees each one offers. This means that users of infrastructure’. Although ‘qualified’ electronic
the cryptocurrency can be assured of the agility signatures are scarcely used, traffic operates with
of the transaction and miners – who, as stated others which, despite not enjoying rebuttable
earlier, are in it for the money – get their reward. presumption (iuris tantum) of authenticity, have
Miners thus usually choose to verify and add to not so far deserved particular judicial reproach.
their block transactions that offer the highest
transaction fees. Therefore, transactions with Although Blockchain seems mathematically
higher fees are quickly picked out of the Mem- invulnerable, questions nevertheless arise in
pool, while others can take days to be confirmed. connection with its evidentiary value. The

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 183

 assumption that specific transactions correspond It should also be borne in mind that behind
to specific expressions of will is one of them. this protocol there is no one to complain to.55
Will is unquestionably a very human characteris- We are dealing with an ‘open source’ computer
tic. To presume that a transaction that has been programme run by anonymous volunteers.
signed electronically is an expression of will, or This, coupled with the irreversible nature of the
of several, is risky in my opinion. I believe that a transactions, means that, in the event of any
correct assessment of evidence must take into contingency, the possibility of holding anyone
consideration the process before and after apply- accountable for compensating for any damages
ing the ‘private key’. In other words, procedures caused is remote.
based on Blockchain must ensure compliance
with all formal requirements associated with a We are therefore dealing with a technology that
contract inter absentes, especially if it involves needs to be analysed with a view to the specific
consumers. Therefore, there must also be proof probative purpose that is pursued, as well as the
that pre-contractual information has previously use that has been given to the various technol-
been supplied, in a ‘durable medium’,54 or that ogies. For there is no magical combination for
a copy has subsequently been supplied to the solving all the probative needs that may arise.
consumer so that they can also take action.

Another objection to Blockchain refers to its Blockchain 2.0

mathematical nature. It is a procedure designed
for the computing capacity of current tech- Throughout this article we have analysed how
nology. With the current processing capacity, Blockchain functions specifically as a means of
Blockchain is almost impenetrable. However, providing proof of money exchanges. However,
news of advances towards quantum computing as stated earlier, Blockchain is a combination
has been frequent lately. Experts claim that of different technologies for authentication
it could ‘break’ the algorithms of asymmetric purposes. This purpose may change, as may the
encryption, thereby destroying the invention’s use of these technologies. A clear example is the
validity as proof. What is more, after the distrib- algorithms that afford identity. As we have said,
uted programme has been executed, there are Bitcoin pursues both anonymity and unambigu-
people who might no longer agree to maintain ity. That is, a specific transaction is attributed
the system. What would happen if the generals to a specific stranger, thus avoiding double
decided to desert en masse? spending and granting anonymity to those
involved. However, the technology that achieves
Another weakness of the system is that it needs this – public key infrastructure – was initially
to run constantly. If it stops, there are not design for electronic signatures and, accordingly,
enough generals to reach consensus on forks to attribute expressions of will to specific indi-
that may arise, and it would lose its treasured viduals. For this reason, it can also be used to
Creators and Authorship in the Digital Age

mathematical consistency. The security of sign, combining mathematical unambiguity with

the procedure increases as long as it keeps on specific identities. It is sufficient to link a pair of
running and transaction blocks do not cease to asymmetric keys (public and private) to a specific
be linked together. If it stops, security decreases, identity through a public key certificate. 56
initially affecting the most recent transactions.
The question arises of how many of these Distillation algorithms also have multiple uses.
procedures will continue to work in a hundred For years, hashes have been used with a proba-
years’ time and what will happen to the previous tive intent. Their nature makes them suitable
transactions if new blocks are not added to the for proving integrity by comparison. The hash
chain. of the file that is supplied is compared with the

184 6. Blockchain and smart contracts. Legal implications in the intellectual property field
one that was previously deposited. This proves exchange activities by taking money and dis-
that the file has not been modified since the pensing products. The machine also incorporates
date of the deposit. Having distributed hashes the necessary security mechanisms so that the
is a useful procedure for proving integrity cost of breaking into it to access the products
without having to indiscriminately disclose the without paying is higher than what the stolen
contents of the document whose integrity is goods are worth. Vending machines are there-
to be proved. In order to alter its contents, it is fore useful with their current security measures,
necessary for everyone who receives the hash to because they dispense cheap products: soft
agree to do so. drinks, snacks, chocolate bars… It is not worth
anyone’s while smashing up these machines to
Therefore, given the nature of these technol- get their hands on these products. If they were
ogies, it is possible to consider new ways of com- to dispense diamonds they would probably be
bining them to meet other needs. For one thing, frequently broken into.
it is possible to decentralise the registration
of any right or property that is digitally repre- The unstoppable technological developments of
sentable. If it is possible to keep a distributed recent years and the emergence of phenomena
ledger that allows the exchange of money, it will such as Blockchain have led Szabo’s ideas,
also be possible to create crypto-ledgers that which had previously gone unnoticed, to gain
provide evidence of the transfer of other rights unusual prominence. Indeed, as a result of
or properties, including, of course, intellectual digital breakthroughs, chiefly Blockchain, Szabo’s
property. These possible alternative uses of this hitherto utopian ideas are now realisable. We
technology have been dubbed Blockchain 2.0, are no longer talking about simple mechanical
the best example of which is the so-called ‘smart devices, but about a combination of digital
contracts’. systems, data communication networks and
Internet-connected devices that makes it
possible to apply his idea beyond the limited
Smart contracts scope of vending machines.

The term was coined in an article published Smart contracts are the main example of what
in 1996 by the American lawyer and computer has been called ‘Blockchain 2.0’ and could turn
scientist Nick Szabo in the magazine Extropy out to be a legal revolution. They are based on
(‘Smart contracts: building blocks for digital free the idea of translating the contents of contracts
markets’). Many believe that Szabo is the person into a computer code that is signed by the
behind the pseudonym ‘Satoshi Nakamoto’, the parties to the contract. Contracts would thus be
creator of Bitcoin (Blockchain), although he has self-executing, regardless of the parties’ subse-
always denied it. quent wishes.
Creators and Authorship in the Digital Age

He examined how vending machines work and To gain a more detailed idea of what smart
anticipated that with digital and mechanical contracts entail, it is necessary to view them in
advances, the execution of increasingly complex connection with two other recent phenomena:
contracts could be automated. He reckoned that Blockchain and smart properties. All three make
hardware and software systems could emulate up an ecosystem that needs to be considered
the entire contractual life cycle, replacing all jointly. We have already commented in depth on
human involvement in the process. According to Blockchain as a proof of record procedure. Let us
Szabo, the vending machine meets two critical now take a look at property and smart contracts.
requirements in contracting: first, it performs

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 Smart property information that (1) includes all the elements of
the property right, (2) is recorded in Blockchain
The second component of the proposed ecosys- or in another distributed ledger, (3) can be
tem is ‘smart property’ or ‘crypto-property’. In transferred by executing a protocol and (4) may
view of the effectiveness of distributed ledgers or may not be accompanied by additional func-
for money exchanges, it is only logical to think tions governed by a smart contract that is in turn
that other goods and rights might be transferred governed by a code and/or manual data entry.
using this protocol. To achieve this, the property
or right to be transferred must have previously Smart property cannot be considered a real right,
been ‘tokenised’. To ‘tokenise’ is to represent a a title which someone possesses and which
right or property mathematically: a sequence of makes them the owner of an asset or holder of
letters and digits (information) that represents it a right. First, because it is not included among
univocally and is incorporated into a distributed the cases envisaged by law. Furthermore, as
ledger. The tokens function rather like chips in stated earlier, it is not an absolute right that can
a casino that represent particular values of legal be enforceable erga omnes. For that to happen,
tender money. In order to transfer the ownership the use of the protocol would have to guarantee
of a good or right, you must first represent it in a that the good or right has not been disposed of
digital format compatible with the protocol you previously – that that good has not been ‘token-
use to transfer it. ised’ and recorded in another distributed ledger.
Lastly, it is not easily recognisable to potentially
In a digital environment, these tokens are simply affected third parties.
‘data’ (information) that represents goods or
rights. They are designed to function in the It is also doubtful whether the legal community
same way as securities. Their possession affords could accept ownership of crypto-properties.
ownership of that particular good or right and Possession cannot be deduced from the exe-
enables the latter to be subsequently disposed cution of a protocol. Having a password that
of by being transferred to a new owner. The allows you to access a file does not amount to
advantage of Blockchain when it emulates how possession.
securities work is the same one that enables
cryptocurrencies to be used: it prevents them To shed light on this issue, it is useful to examine
from being disposed of more than once. It solves the laws passed by the American states of
the problem of ‘double spending’. However – and Arizona and Vermont, which are largely pioneers
this is very important – it does not guarantee in regulating these issues. The state of Arizona’s
the singularity of each transaction (that the statutes on Blockchain and smart contracts
owner of that good or right has not repeated the regard them as records of proof; a way of ‘secur-
procedure with other ‘distributed ledgers’). For ing’ information. Whoever possesses the private
this reason, it cannot be stated categorically that key has a right to use or own that information.
Creators and Authorship in the Digital Age

smart property emulates traditional property. The legislation does not consider this infor-
mation (data) to be ‘things’ or ‘rights’ or even
‘values’ but simply ‘information’. Therefore, for
Legal status of smart property the Arizona legislator, crypto-ownership merely
amounts to the right to access and/or transmit
It is not easy to find normative references to this certain information (data).
term. The Swiss electronic signature law defines
it as part of the ecosystem. The wording links The state of Vermont has also amended its legis-
smart property to distributed ledgers (Block- lation by introducing provisions that incorporate
chain) and smart contracts, defining it as digital legal presumptions linked to the use of these

186 6. Blockchain and smart contracts. Legal implications in the intellectual property field
technologies: that Blockchain files referring to ordinary contracts are limited to incorporating
fact or records are presumed to be authentic. promises of future provision of services, smart
However, this presumption does not extend to contracts actually execute them.
the truthfulness, validity or legal status of their
actual contents (the files). Therefore, the law When programming a smart contract, the
establishes that the burden of proving that a file contractware that is run is conditional. It follows
is not authentic falls to the person against whom the scheme ‘if this happens ..., do that; if this
the fact operates. happens ... do something else’. It is, in short, a
code that is easily adapted to the terms of the
We are therefore dealing with sui generis titles contract and simple to run. This is why calling
that grant the holder the right to access a data- contracts of this type smart is usually criticised.
base (the distributed ledger). They are therefore The reason is the modern meaning of the term
a means of proof without specific legal effects. ‘artificial intelligence’, referring to machines that
If the token has been transferred by means of a have ‘cognitive independence’, which is achieved
contract (smart contract), the parties could be through what has been called ‘neuronal comput-
bound by this agreement, but it is questionable ing’. It enables machines to learn by themselves
whether the token would be enforceable against and provide answers that are sometimes unpre-
third parties. dictable. However, conditional coding does not
produce machines with cognitive independence
and unpredictable responses. Quite the op-
Smart contracts posite. The legal certainty of smart contracts
depends on the predictability of the machine in
These are the third component of the ecosys- specific circumstances that have been previously
tem. Smart properties can be automatically programmed. Therefore, these contracts are not
transferred by running a computer code. Smart smart in this sense.
contracts are nothing but a computer code
(contractware) that is stored in a distributed
ledger and whose execution guarantees that the How smart contracts work
data obtained from it will likewise be stored in
this ledger. There are three stages in the lifecycle of a con-
tract: drafting, finalisation and implementation.
The contractware is the translation of the legal The first phase entails informing, negotiating and
language (the contents of the contract) into a writing down the agreement to be formalised;
computer code. This codification incorporates the next is a meeting of wills based on the
not only the agreements reached, but also the premises established in the first phase. In the
consequences that could derive from compliance third phase, implementation, the parties proceed
or non-compliance with them. If, for example, to deliver (or not) the promised services.
Creators and Authorship in the Digital Age

the transfer of a token is formalised, the smart

contract is not limited to listing the transfer Smart contracts do not have a special impact
agreements. It also verifies the data and enforces in the first two phases. During the drafting
the consequences agreed upon by the parties. stage, when the contract entered into is with
For example, the code receives the obligations of consumers, the proffering party must ensure that
each of the parties (payment in cryptocurrencies the pre-contractual information is supplied to
and the order to transfer the tokens) and sends the latter before it is finalised. The regulations in
each party the obligations of the other. Many force already specify that in non-smart contracts
authors deny that these code sequences can be this information be supplied in a ‘durable me-
considered genuine contracts, since whereas dium’. It does not seem likely that pro-consumer

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 regulations will be affected by the self-execution serve as sources for incorporating the informa-
of the terms. In fact, it is foreseeable that the tion provided by them into the computer code
consumer’s right to information will be extended variables (smart contract), as we will see later.
to information on the codification and self-­
execution of the terms. To understand how contractware works, it is also
essential to understand the meaning of ‘oracle’.
There are no major novelties in the finalisa- When a smart contract – which is simply a com-
tion phase either. Both smart and non-smart puter programme (code) – is formalised, there
contracts will require the use of electronic is data that is unknown at the time. This future
signatures of the kind specified under current data in some way or another will influence the
legislation, which includes advanced electronic result of running the code. When contractware is
signatures based on asymmetric key cryptog- created, the future data is represented by vari-
raphy – the type initially intended to formalise ables that will be assigned the values obtained
smart contracts. However, it must be considered from consulting electronic information sources
that, under certain circumstances, when the previously agreed upon by the parties.
regulations in force require the identification of
those involved, the use of public key infrastruc- Before the code is executed, all its variables must
ture will not be sufficient and the person asking be filled in with the information provided by the
to be assigned asymmetric keys will be required sources agreed by the parties. Take, for example,
to identify themselves. the automation of a game of chance. It is coded
in such a way that whoever wants to participate
So far, both types of contract are much the has to transfer to a certain wallet the amount (in
same. In a non-smart contract, the parties retain cryptocurrency) that is required to participate.
their ‘signed copies’ or the certificate issued Supposing that the bet refers to the result of a
by a ‘third party’ entrusted with certifying the football game whose result will be known after
meeting of wills. If it is necessary to prove the it ends (and also after the period the players
existence and contents of the contracts, either have to place their bets). In the betting rules
of the parties may display or provide their (smart contract) the players have been informed
copy. However, with smart contracts, after the that the result will be known after a query is
meeting of wills, the computer code is incor- ‘launched’ to the website of, say, the Spanish
porated into a distributed ledger, remaining at Football Federation. After the match ends, the
an ‘address’ in it until it is finally implemented. programme will launch the query to the oracle
Entering the code in the ledger ensures its and will fill in the variable. This way it will have
inalterability. Nobody will be able to modify it, in the necessary information to execute the code
such a way that the one added to the chain will that automates the bet. The execution of the
be the one that is finally implemented and will code will make it possible to determine which
serve as the basis for obtaining the data exit. player or players, if any, have won the bet (by
Creators and Authorship in the Digital Age

guessing the correct result) and to automatically

In addition, with smart contracts, the proffering transfer (also in cryptocurrency) the amount
party must add a clause whereby the adhering payable to them.
party agrees to the agreements being codified
and subsequently automatically executed. Con- The data that ‘feeds’ the computer code vari-
sent must also be sought for the use of specific ables is called a data entry. Oracles are not the
sources of information that fill in the computer only data entry (the only source of information)
code variables before their execution. In short, used to fill in the variables of a smart contract.
the contract must include a list of the oracles These can also be filled with the information
and IoT (Internet of Things) devices that will provided by IoT devices.

188 6. Blockchain and smart contracts. Legal implications in the intellectual property field
IoT devices are simply devices that are connected implications. It can be used, for example, for
to the Internet. Currently, our smartphones or property rentals. With ‘smart locks’ you can
smart televisions are already connected to the arrange for the person who has signed the smart
Internet and are therefore considered IoT. If we rental contract to open the door of a building.
run the weather app on our smartphones, we We are dealing with a sort of ‘handing over of
can view weather forecasts for anywhere in the the keys’ in that this procedure is used to grant
world. This information can be provided by an access to movable or immovable property to
oracle (for example, the Aemet website) or by an someone who has formalised the related smart
‘Internet device’ (or a network of them) equipped contract.
with sensors capable of capturing the infor-
mation and sending it in real time to a server Another common use of ‘triggers’ is to automate
or several servers. More and more connected motor vehicle financing contracts. Smart con-
devices are being developed with sensors that tracts can be formalised whereby the monthly
capture the most varied information that can payment is deducted from the account (wallet) of
serve as data inputs in smart contracts, and IoT the buyer who has arranged to pay for their car
devices are becoming increasingly widespread in instalments. A rule is also codified according
all over the world. The consultancy firm Gartner to which, when the buyer has defaulted on three
reckons that by 2020 there will be a whopping instalments, a mechanism built into the pro-
20.4 billion connected devices in the world. gramme that connects it to the vehicle is exe-
cuted: it sends a stop instruction (the user cannot
The result of executing the computer code, once re-start the vehicle) and geolocates it so that it
the variables have been entered, is new data that can be repossessed by the finance company.
is called the data exit.
Smart contracts can provide for deferred or cash
This information (data exit) can be stored in a payments. When the payments are deferred, as
distributed ledger (blockchain) in such a way that in the above example of hire purchase of motor
there is an irreversible and permanent record vehicles, the finance company owns the vehicles
of the result of this execution. For example, the whose acquisition it finances. If the borrower
result of implementing a smart contract might does not pay, ownership of that vehicle is not
be the change of ownership of a smart property transferred (ownership is not modified in the
(tokenised) or a transfer of cryptocurrency to ledger). If the payment is made in cash, the code
one of the parties’ wallets. can be programmed in such a way that the buyer
transfers the amount to the address stipulated
The destination of the data exit can also be in the code and it remains in deposit until the
IoT devices. When we speak of smart contract other party fulfils their contractual obligation.
‘triggers’, we mean that the result of running Imagine that the acquisition of some tokens that
the code can have mechanical consequences (as represent a share in a specific company is agreed
Creators and Authorship in the Digital Age

with the vending machines to which Nick Szabo on. The code calls on the parties to honour their
referred). Take, for example, carsharing, which respective obligations. The selling party forwards
is common in cities. Users search for available the signed transfer of the tokens to the address
vehicles on their devices and choose the nearest of the smart contract and the buyer transfers the
once. To access them, a code is sent to the users. established sum to the same address. Consulting
The ‘challenge code’ is sent to the chosen vehicle the distributed ledger, the code verifies that
via the Internet, so that only the registered user the tokens have not already been transferred
who has reserved that vehicle can access it. This and that the payment is for the agreed amount.
technique, increasingly used in English-speaking Having checked these facts, the code then adds
countries, has multiple uses and evident legal the change of ownership of the tokens to the

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 189

 ledger and sends the cryptocurrency to the Do the fundamental principles of UNCITRAL
address of the seller’s wallet. rules apply to smart contracts?

UNCITRAL rules are based on three fundamen-

UNCITRAL rules and smart contracts tal principles: non-discrimination, technological
neutrality and functional equivalence, which
Many of the concepts and legal definitions require a preliminary analysis to decide on their
enshrined in regulations on electronic commerce applicability to smart contracts.
are inspired by the guidelines established by the
United Nations Commission for International Concerning the principle of non-discrimination,
Trade Law (UNCITRAL). This commission has it should be remembered that the rules on trade
addressed the exponential growth in electronic and electronic signature establish that docu-
relations in international traffic by creating ments must not be denied legal value simply
several verificatory instruments that are based because they are in electronic format. This
on the principles of (i) functional equivalence establishes a presumption of legality for the elec-
electronic and paper documents and (ii) techno- tronic format. As Blockchain and smart contracts
logical neutrality. are in this format, the presumption extends to
distributed ledger technology.
In the absence of specific regulations on
smart contracts, it may be useful to turn to The principle of technological neutrality seeks to
UNCITRAL, which, as stated above, has been avoid obsolescence in the drafting of standards
inspiring regulations on electronic contracting by facilitating immediate application after
for decades. Electronic contracting is subject to technological advances. It is therefore a principle
the Model Law on Electronic Signatures of 2001, that favours novel procedures such as Blockchain
the Convention on the Use of Electronic Com- and smart contracts, as well as the transition to
munications in International Contracts of 2005 these technologies.
and the UNCITRAL Model Law on Electronic
Transferable Records (MLETR). The principle of functional equivalence raises the
most problems. After all, the equivalence is with
The latter could serve as a reference for future documents (also contracts) on paper. Therefore,
legislative initiatives on smart contracts. It refers smart contracts ought to meet the requirements
to transferable electronic records designed to for documents on paper: be in written form,
emulate how securities work. Movable assets original and signed. Smart contracts can meet
can be represented and, if applicable, the titles the requirement of being in written form (a
associated with them can be transferred. computer code is a form of writing that can be
subsequently consulted), original (being entered
The only difference between electronic trans- in a distributed ledger grants them this status)
Creators and Authorship in the Digital Age

ferable records and tokens is that the former are and signed (as stated, transactions are signed
sets of data and the second are sets of data too, using asymmetric key cryptography-electronic
only associated with a computer code (computer signatures). However, UNCITRAL does not seem
programme) which can make the agreements to have had a self-executing code in mind, so
self-executing, dispensing with the subsequent that its equivalence to a paper document may
will of the parties. That is, ownership is trans- not be sufficient to provide satisfactory answers
ferred automatically through the execution of to the legal questions that may arise.
the programme when the parties comply with
the agreed requirements. It is also appropriate to analyse the requirements
of the UNCITRAL rules for drawing up contracts.

190 6. Blockchain and smart contracts. Legal implications in the intellectual property field
As the offer and acceptance of an electronic rules or the competent jurisdiction for settling
transaction are merely ‘data messages’, and the disputes that may arise from the execution of
term is defined in the MLETR as information this code.
generated, sent, received or stored by electronic
means, it may be taken to include interactions
using computer codes (smart contracts). The Legal importance of smart contracts
principle of the written form is met in that the
formalised contract is available for subsequent We must begin by accepting, even if only theo-
consultation, as may be the case of smart retically, the normative capacity of a computer
contracts. The signature requirement is fulfilled code. It must be accepted as a de facto issue,
in that the electronic signature method used is since the execution of a computer code on
authentically identificatory. As stated earlier, the users’ computers may influence their conduct or
use of asymmetric key cryptography (assignment that of third parties affected by the execution.
of a public and private key to the signee) will We might therefore speak of the ‘sui generis
only be identificatory if the receiver and user of regulatory capacity’ of smart contracts, since
those keys has been identified before they are they can coincide in their effects with the law
assigned. However, if asymmetric key cryptog- and with traditional contracts. Take, for instance,
raphy is used in the same way as in Bitcoin (it is a social network’s rules of use that condition its
not obligatory even for identity to be provided millions of users worldwide: how to post, sup-
when asymmetric keys are assigned), the signa- port, report or withdraw content; conditions for
ture must be understood to be anonymous and, accessing the site, etc. They create a habit that
accordingly, not identificatory, thereby failing is influenced by programming. The user of that
to meet the requirements: that the contract be computer programme (the social network’s code)
signed by the parties. The signature merely links will find it difficult to deviate from the standards
the electronic expression of will to a specific programmed by its creators.
identity.
While it is true that there are similarities between
The integrity requirement is, however, easily met legal regulations and a computer code there
in smart contracts. It should not be forgotten are also considerable differences. The main one
that we are talking about a code and data stored is probably that a computer code is created by
in a distributed ledger under Blockchain proto- private actors, while the regulatory responsi-
col. As this protocol is merely a concatenation bility of lawmakers almost also falls to already
of hashes of transaction blocks that are stored legitimised agents (legislators and judges) whose
in a shared ledger, it is indeed difficult to tamper mission is to safeguard the common good. In
with what has been signed. addition, these agents have their own jargon and
grammar rules that are difficult for individuals
In short, it seems that the UNCITRAL rules on unfamiliar with these disciplines to assimilate. For
Creators and Authorship in the Digital Age

electronic contracts are not so alien to Block- example, a smart contract will only be governed
chain. After all, smart contracts are simply the by the rules provided for in its design. From
culmination of digital contracting processes. The a computing perspective, it is difficult for the
rules on electronic signatures or communications programmer to take into account, when design-
in contracting processes are clearly applicable. ing the programme, the causes for rendering the
The express legal provisions on electronic contract null and void unless specific instructions
transferable records legitimise securities and are received in this regard. Therefore, it is possi-
electronic registers as proof. However, the regu- ble for there to be discrepancies between both
lations do not include express provisions on the systems (legal and the computing) that lead to
self-execution of contracts or on the applicable the execution of smart contracts that go against

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 191

 the law, and this can undoubtedly pose problems. do not need a legal system to exist; they also
For this reason, it is common to distinguish be- regard them as a ‘technological alternative’ to
tween simple smart contracts, which are nothing the traditional legal systems and reckon they will
but computer codes with a specific function, lead to the disappearance of many disputes, at
and ‘smart legal contracts’, which transfer to a least those deriving from contractual breaches.
computer code previously made agreements These are not isolated opinions. Russian Prime
that comply with the regulations applicable in Minister Dmitri Medvedev also stated that
each case. Consequently, one of the challenges ‘systems creating such contracts live by their
of smart contracts is to reconcile the legal and own rules, beyond the boundaries of law’.
computer systems in such a way that mecha-
nisms are generated to ensure that the computer In short, we are speaking of a technology that
code complies with the regulations in force. arouses and inspires interest, respect, aversion
and enthusiasm. Some reckon it will revolutio-
nise business relations, as well as the current
Code is law? conception of property. However, sceptics view
it as a sophisticated scam that resembles the
Technological advances are starting to lead us ‘Ponzi scheme’.
to question long-established legal conceptions.
Indeed, some people believe that certain tech- Irrespective of clashing views and whether or not
nologies can emulate the law governing the smart contracts will change the world, it does
conduct of those who use them. However, so not seem unreasonable to think that they will
far no one had ever questioned the monopoly be welcomed by companies. At the end of the
of legal systems as coercive mechanisms for day, they are nothing more than the culmination
enforcing laws. If they are not complied with, of the contracting processes in the digital field
the ‘legal system’ is used to enforce compliance and can amount to savings and greater business
as well as to compensate for the damages that efficiency. As they are increasingly adopted, they
lack of compliance may have caused. However, will exert growing pressure on legal actors to
enthusiasts of these technologies, such as replace traditional contracts, at least in certain
Lawrence Lessing, believe that smart contracts circumstances.
have the potential to take over legal systems’
essential mission of enforcing what is contractu- In my opinion, however, they can never replace
ally agreed upon. They hold that programmers contract law owing to a key difference: contract
transfer to software users ways of acting, as well law is a legal institution whose basic purpose
as rules that replace the law. Lessing’s followers is to remedy the consequences of breaches of
commonly refer to this way of thinking using the the agreements entered into by the parties to
expression ‘code is law’. the contracts. Its mission is not to guarantee
ex ante compliance of the agreements, but to
Creators and Authorship in the Digital Age

This is no trivial matter. Contracts are essential clarify the claims that may arise ex post, after
tools that support both social and economic the breach of any of the contractual terms. The
aspects of our way of life. Until now, nobody had fact that smart contracts cannot be breached
questioned the principle that the execution of means that it will not be necessary to remedy or
contracts requires the support of legal systems. correct the harmful effects of non-compliance,
However, as stated, technological breakthroughs as these cannot exist. The foregoing, however,
have given rise to speculation about the possibil- does not mean that contract law will cease to
ity that contract law will be largely displaced by be applicable. It may so happen that the parties
these inventions. The most enthusiastic advo- have not been sufficiently exhaustive in provid-
cates do not just believe that smart contracts ing for possible situations that may arise from

192 6. Blockchain and smart contracts. Legal implications in the intellectual property field
the particular contractual relationship. Another participants in The DAO were subject were based
possibility is that errors in the code cause the on the ‘code is law’ philosophy, that is, they were
contract not to behave as planned by the parties. bound solely by the execution of the code.
External and unrelated circumstances may also
arise that influence the fulfilment or execution The Ethereum platform is governed by the
of the agreement. In these cases, and probably in Ethereum Foundation, which makes decisions
many others, it will not be possible to dispense by consensus (vote) among its members. The
with contract law or traditional legal systems. incident triggered a heated debate between
In addition, law, with its fundamental mission them about what action to take. Some regarded
of order and justice, cannot ignore phenomena it as a theft (misappropriation) that needed to be
such as the following. remedied. Others viewed it as a typical vulner-
ability of the code and therefore a risk inherent
in smart contracts. The latter were in favour of
The attack on ‘The DAO’ as a acting accordingly, believing that the investors in
paradigm for considering the legal The DAO should assume the losses.
implications of smart contracts
In the end it was decided to implement a hard
DAO (Decentralised Autonomous Organisation) fork. Consensual tampering with the chain
refers to a company that operates (at least from makes it possible to generate a new line of
a corporate point of view) by executing one or blocks. It starts with the block before the one
several smart contracts. Those who participate containing the fraudulent transfer or any other
in a DAO, usually through an ICO, exchange transfer that, for some reason, you wish to
cryptocurrency for ownership of tokens. This exclude from the distributed ledger. To achieve
transaction gives them, among other rights, the this, most of the nodes that act as miners of the
power to vote on certain issues related to the system must agree to choose the new line of the
activity of the company. chain that does not include the transfer that is
to be excluded. The participants in the protocol
In May 2016, a decentralised management risk thus managed to avoid corporate damage
capital fund was created: a DAO whose activity resulting from the loss of the 60 million dollars
focused on investing in start-ups related to that were transferred.
Blockchain and smart contracts using the Ethe-
reum platform. It was called ‘The DAO’ and was This decision sparked a disagreement within
the largest crowdfunding operation in history the Ethereum Foundation, which was settled
(150 million dollars and 11,000 investors around by splitting it into two platforms: Ethereum and
the world). The DAO was managed exclusively Ethereum Classic. This is a paradigmatic case of
through a smart contract executed on this whether ‘code is law’ or whether law and justice
platform. should prevail over code.
Creators and Authorship in the Digital Age

On 17 June 2016, an unknown hacker transferred It is nevertheless appropriate to ask ourselves

60 million dollars’ worth of ‘ethers’ from the what would have happened if a hard fork had
DAO to their wallet. The hacker took advantage not been possible, that is, if the Ethereum miners
of a bug in the programming of the code (smart had not agreed to it, or if the dissemination of
contract) that allowed various withdrawals of the transaction had made it irreversible. Had
cryptocurrency to be made before the balance this happened, two legal questions would have
was updated, resulting in evident unjust enrich- arisen. Firstly, would it have been possible to
ment. The case is interesting from a legal point locate the anonymous attacker whose only trace
of view because the legal conditions to which the was an asymmetric key that is assigned with no

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 193

 need for identification? Secondly, assuming he unlawful copyies. They hold that the technol-
or she had been identified, would it have been ogies underlying Blockchain would make illegal
possible to bring a civil or criminal action against copying impossible, just as they prevent the
the hacker? double spending of cryptocurrencies. However,
this is not true. Such claims, although frequent,
In addition, there is a general objection that have no backing whatsoever. Let me explain. The
cannot be ignored. The Blockchain movement is problem with protected intellectual creations
crypto-anarchist nature and therefore aspires to is that the files that contain them can be trans-
decision-making in a decentralised manner. This mitted electronically and copied in an unlimited
avoids the risk of corruptibility of the people way, as a result of which copies lose all value.
who ‘make entries in’ and safeguard the ledger. Blockchain, which is also popularly known as
One of the attractive features of Blockchain is the ‘Internet of value’, affords electronic files
the irreversibility of its transactions. However, value. As we have analysed in this article, it was
a case like The DAO shows that they are not invented to make decentralised money a reality.
completely irreversible and that reversible trans- With the use of this protocol, the expenditure of
actions include those linked to the economic cryptocurrency units is recorded and a change of
interests of the participants in the chain. They ownership occurs. The coins are transferred from
can decide to reverse them for their own benefit, the previous holder to the people who have been
but causing damage to third parties affected by paid with them, who from that moment onwards
the transactions that are reversed. will in turn have the right to transfer them,
making for a smooth and efficient cash flow.
Its efficiency stems from the fact that a system
Blockchain and intellectual property of entering transactions in a record of proof
avoids the problem of double spending. The
For some time now, technological advances have person who has disposed of the cryptocurrency
not gone unnoticed to the cultural industry. This cannot spend it again because it has already
is only logical. Years ago, when the digital world been registered in the single ledger, credited to
was still emerging, these advances were looked another holder. Therefore, the money transfer is
down on by the holders of intellectual property not carried out by sending the payee a file, but
exploitation rights. However, time proved them via a third party (decentralised) who records the
to be wrong. The growing digitisation of content change of ownership in the ledger. This proce-
ended up depriving holders of their right to dis- dure means that file transmissions are uncon-
tribute copies of their works and, ultimately, has taminated, as value is only given to the entries
radically changed the business model of cultural in the ledger. However, it does not prevent files
industries. We have thus gone from one extreme from being exchanged electronically or from
to the other. Nowadays, holders of the rights being duplicated and/or reproduced repeatedly.
to protected works are quick to scrutinise any
Creators and Authorship in the Digital Age

technological innovation to ascertain the impact Therefore, it can be categorically concluded that
that these advances may have on the cultural Blockchain does not solve the main problem
industry. In this context, many people wonder currently faced by the cultural industries: the in-
about the possible consequences of Blockchain’s fringement of rightsholders’ intellectual property
appearance on the creation and distribution of rights, depriving them of their legitimate right to
intellectual creations. control the reproduction and dissemination of
copies of their protected creations.
Some claim that Blockchain can enable com-
pletely new protection systems to be put in However, Blockchain can be useful to the cul-
place to combat copying and the enjoyment of tural industries in other areas. A good example

194 6. Blockchain and smart contracts. Legal implications in the intellectual property field
is registries recording ownership of the creations Finally, returning to the probative value of Block-
(the intellectual property registries). Indeed, this chain, in order for this protocol to have probative
technology (Blockchain) is also known as distrib- potential, it is important for the computer code
uted ledger technology and whereas it is of no that controls it to be open source; this undoubt-
use in protecting against unlawful reproductions, edly means that the validating procedure affects
it can be used to prove the ownership of intel- another invention of anarchism that influences
lectual property and owners’ assignment of their intellectual property rights: copyleft.
rights. When dealing with distributed ledgers,
the integrity of the entries does not depend on Indeed, to properly understand Blockchain’s
the trust placed in specific institutions, individu- probative strength, it should be remembered
als or legal entities, but on an activity carried out that it is a distributed ledger that is generated
by anonymous volunteers through consensus. in a consensual manner by various nodes. The
nodes that reach a consensus (miners) are not
Nevertheless, registering the authorship or first controlled by the owners of the computers, but
ownership of intellectual property still stems by the logic programmed and installed in them,
from a unilateral declaration of the supposed by the computer programme that instructs them
author and/or owner. However, there are no to implement the mathematical procedures
technological mechanisms for detecting foresee- referred to above. It might be objected that
able lies in these initial statements of ownership, this is not decentralised but simply distributed
and this could result in entries in the intellectual consensus and that whoever controls the
property registry that turn out to be fraudulent software run on the miners’ computers controls
and, consequently, could harm the legitimate the distributed consensus process. Under these
interests of the true owners. circumstances, the programme (software) editor
could always change the programming to cor-
It is also common to hear about this technology rupt the authenticity or integrity of the ledger.
(mainly Blockchain 2.0 and smart contracts)
being used to finance the production of intel- Bitcoin solves this problem with ‘open source’.
lectual property. The people who talk about this In the 1970s, an American computer scientist,
are basically referring to the crowdfunding of the Richard Stallman, developed an ‘interpreter’
work in question. The owner of the rights (to a of the LISP programming language, which
film, for example) decides to ‘tokenise’ the work interested the Symbolics company. Stallman
(that is, assign shares in the exploitation rights, agreed to grant them the right to analyse and
establishing as a unit of measurement tokens modify the source code of his programme. As a
with a certain value). Thus, if the estimated cost result, Symbolics caused it to evolve and when
of producing the film is a million euros, I can Stallman wanted to access the modifications, the
issue tokens representing shares of ownership of company refused. He then decided to abolish
the rights to the work of, for example, 100 euros these practices and created his own copyright
Creators and Authorship in the Digital Age

each, so that I would end up issuing a total of licence: the General Public Licence – the GNU
10,000 tokens worth 100 euros each. This would GPL licence, which is still the most widely used
grant the purchasers the right to (i) a fractional today by developers around the world.
part of the profits obtained from the exploitation
of the work and (ii) certain voting rights related Stallman provides the best explanation:
to how the film would be exploited. The pro-
cedure would be similar to the one used in the The simplest way to make a program free software
ICO (Initial Coin Offering) mentioned earlier in is to put it in the public domain, uncopyrighted.
connection with The DAO case. This allows people to share the program and
their improvements, if they are so minded. But

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 195

 it also allows uncooperative people to convert that will be handed down to successive licens-
the program into proprietary software. They can ees. Open source licences are said to be more
make changes, many or few, and distribute the or less permissive. The fewer restrictions placed
result as a proprietary product. People who receive on successive licences, the more permissive they
the program in that modified form do not have are. Permissive licences include the MIT licence,
the freedom that the original author gave them; created in 1988 by the Massachusetts Institute of
the middleman has stripped it away. In the GNU Technology (MIT). It is an evolution of the X-11
project, our aim is to give all users the freedom to Licence that MIT used for the X Window Sys-
redistribute and change GNU software. If middle- tem. This is the licence that Satoshi Nakamoto
men could strip off the freedom, our code might chose to disseminate the Bitcoin code.
‘have many users’, but it would not give them
freedom. So instead of putting GNU software in As has been said, it is a very permissive type of
the public domain, we ‘copyleft’ it. Copyleft says license. It is used when the creator of the soft-
that anyone who redistributes the software, with ware wants the code to be accessible to as many
or without changes, must pass along the freedom developers as possible and for them to design
to further copy and change it. Copyleft guarantees as many derivative programmes as they wish.
that every user has freedom. With this type of licence, the promoter of the
code (Nakamoto) loses control of his creation,
Stallman designed the licence in order to grant granting permission for it to be rewritten and
licensees four fundamental privileges: (i) to redistributed under any type of licence, even
execute the code for any purpose, without proprietary (it even grants authorisation to cre-
restrictions of any kind; (ii) to study the code ate proprietary software derived from that which
– to see how it is made; (iii) to redistribute as is licensed). As a result, many individuals and
many copies of the code as they wish; and (iv) legal entities have created programmes derived
to modify the code as they deem appropriate, as from the one initially conceived by Nakamoto
well as to distribute copies of the modified code. and, by studying the source code, the entire
community of developers has accessed the logic
But what is genuinely important when consid- behind the computer programme.
ering Bitcoin’s validating ability is that an open
source licence allows both source code and The main drawback of ‘open source’ is possible
binary files to be analysed first and subsequently liability for a failure in the operation of the
modified and redistributed freely by the licensee. programme resulting in damages. The promoters
This makes the source code of Bitcoin public of the programme put the ‘source code’ in the
domain and therefore everyone who so wishes public domain after entering into a comprehen-
can learn about the logic behind Satoshi Naka- sive exonerative agreement including all kinds
moto’s programme. of liabilities. Therefore, an ‘open source’ whose
execution is distributed among anonymous
Creators and Authorship in the Digital Age

Open source licences may also include restric- miners does not seem the optimal scenario for
tions such as incorporating the name of the holding someone accountable for the malfunc-
original authors and the text of the licence tioning of the ‘chain’.
within the code that is supplied; allowing the
modification of the code only for private use,
and not allowing it to be subsequently sold; or Appendix 1. Consensus algorithms.
authorising the redistribution of the software The Byzantine generals problem
exclusively for non-commercial uses, etc. As the
restrictions are established by the first licensor, In 1982, Leslie Lamport, Robert Shostak and
they get to choose the specific form of licensing Marshall Pease published a paper57 that drew

196 6. Blockchain and smart contracts. Legal implications in the intellectual property field
conclusions from work carried out for the to retreat). If a lieutenant is a traitor, he may,
US government. The mathematical formula in order to confuse the rest of the lieutenants
examined in the paper was originally used to and lead them to believe that the traitor is the
control the launching of ballistic missiles via the commander, report that he was sent the oppo-
Internet. The aim was to establish the reliability site order to that which he really received (if he
of communications in open networks in extreme was ordered to attack, he will report he was told
cases where there are presumed to be nodes to retreat, and vice versa).
that aim to disrupt them or create misleading
impressions about their content. It has become To solve the problem, it is necessary to formulate
a key feature of any distributed computing algorithms that allow one of these two objec-
scheme, such as TCP/IP protocol or P2P. The tives to be achieved alternately:
mathematical formula solves what has been
called the ‘Byzantine generals problem’. 58 The 1. That all loyal lieutenants make the same
Byzantine generals problem is a metaphor for decision.
something that occurs in computer systems that
have a common goal: to agree on a ‘joint action’ 2. That, if the commander is loyal, all loyal
starting from a hierarchical structure. One of lieutenants obey the order he gave.
the nodes, which is ranked more highly, sends
an order that the rest of the nodes have to send It is based on the following premises:
on to each other. It is based on the premise that
some of the nodes are not reliable and deliber- a) The messages that are sent arrive correctly
ately send false information to the rest. This is (the messengers are not captured on the
how it goes: way).

In a war scenario, a group of m Byzantine b) The recipients of the messages do not

generals lead various armies that are laying siege know who sent them (the sender does not
to an enemy city. They have to agree on whether sign the message).
to attack or retreat in a coordinated manner.
There is only one general who can issue the c) At least four generals are involved in the
order (the commander). The rest are lieutenants. communication process.

The generals communicate through messengers. d) The absence of a message can be de-
Their messages can only transmit two possible tected.
commands: ‘attack’ or ‘retreat’. The commander
gives the order to all the lieutenants, who in e) In the absence of a message, a default or-
turn report on it to each other. In the end they der is executed. This avoids the problem of
all receive a number of messages equal to the a lieutenant being a traitor and in addition
Creators and Authorship in the Digital Age

number of generals involved in the siege minus not sending orders.

themselves.
The mathematical formulation of the solution to
One or more of the generals may be traitors (t). the ‘Byzantine generals problem’ is m = 3 (t) +1,
We call the rest loyal. The aim of the traitors is where m is the number of generals involved and
send the wrong information in order to ensure t the number of traitors.
that the loyal generals do not reach an agree-
ment. For example, if the commander is a traitor, The logic of the formulation begins by detecting
he can send contradictory orders to the various whether the commander is the traitor. To do
lieutenants (telling some to attack and others this, the lieutenants pass on to each other

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 197

 the information that the commander has sent Since the requirement that at least four generals
them. If a lieutenant is loyal, he will pass on the participate in the communicative process has
information sent to him by the commander. If not been met, there is no formulation that solves
the messages are oral (they are not signed), a the problem. There are not enough generals to
treacherous lieutenant can always lie about the guarantee consensus. Lambert’s formulation
order received from the commander. – m = 3 (t) + 1 – does not work unless there are
at least three loyal generals. This is because
Supposing there are only three generals besieg- there are not enough generals to make a consen-
ing the city, two of them loyal and one a traitor sual decision. If we apply the formula, where m
(m = 3), we have two possibilities: the traitor can is the number of generals that intervene in the
be the commander or a lieutenant. communication, that is, three, and we calculate
the result, multiplying the number of traitors by
Assuming that the commander is the traitor 3 and adding 1, we obtain the result that 3 is not
(diagram 1), he sends different orders to the two equal to 3 (1) + 1, which is equal to 4.
lieutenants (one to ‘attack’ and the other ‘to
retreat’). The lieutenants pass on the messages If we increase the number of generals to 4
to each other, and when they have all been (m = 4) and assume that only one of them is a
received, they will not know how to act if they traitor (t), we get the desired consensus, since
have only two messages that are also contradic- the number of loyal generals is equal to three
tory. They do not know if the traitor is the times the number of treacherous generals plus
commander or the other lieutenant. one: 3 (t) +1.

In figure 3, the commander is the traitor and the

three lieutenants to whom the order refers are
loyal. The commander transmits contradictory
orders to his three lieutenants. Two of them l (1)
and l (2) are told to attack and the third l (3) to
retreat. When they discover that the orders
received are contradictory, they apply the for-
mula: m = 3t + 1. As there are four generals
If one of the lieutenants is the traitor (dia- (commander + three lieutenants), m = 4. And
gram 2), he passes on to the other lieutenant the since there is a contradictory message, they will
opposite instructions to those received from the realise that there is a traitor, so t = 1. Conse-
commander. The loyal lieutenant, on receiving quently, m (4) = 3t (1) + 1, resulting in 4, which
two contradictory messages (from the com- coincides with the number of generals involved
mander and from the other lieutenant), will not in the communication. The decision of l (3) will
know whether to attack or retreat. be to attack following the majority.
Creators and Authorship in the Digital Age

198 6. Blockchain and smart contracts. Legal implications in the intellectual property field
In figure 4, the commander is loyal. So are If we replace the generals with computers
lieutenants 1 and 2. On this occasion the traitor (nodes), we find a suitable formula for achieving
is lieutenant 3. Everyone receives the order to consensus on which of the verifications of the
attack from the commander. Lieutenants 1 and 2 many miners is the one that will finally be added
also transmit an order to attack. Lieutenant 3, to our collaborative accounting. The verification
however, transmits an order to withdraw. Given that has greater consensus among the system
the contradictory nature of the orders received, participants will be added.
the loyal lieutenants apply the Lamport formula.
Again, there are 4 generals and one is a traitor.
The arithmetic is the same as long as the num-
ber of generals and/or traitors does not vary (4 = José María Anguiano holds a Law degree from the
4). The decision of Lieutenant 3 is again to Universidad Complutense of Madrid and has been
attack. If there were two traitors, the number of practising as a lawyer for more than twenty years. He
divides his time between the academic and business
generals needed to reach a consensus would be
worlds, as he is a lecturer at ICADE’s university master
seven, if there were three traitors, ten generals
degree in Intellectual Property, a partner at the Garrigues
would be necessary and so on.
law firm, and vice-president and founder of Act Logalty.

Creators and Authorship in the Digital Age

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 199

 this body. The Commission is made up of the reg-
Notes
istrar of the Central Registry, as president, the reg-
istrars of the Territorial Registries, and a secretary
1 https://boe.es/buscar/act.
who is not a member of the Commission and has a
php?id=BOE-A-1996-8930
say but no vote. Section 4 of the same article goes
2 https://www.boe.es/diario_boe/txt. on to list the Commission’s functions (see https://
php?id=BOE-A-2015-3439 www.boe.es/buscar/doc.php?id=BOE-A-2003-6247).
3 https://boe.es/buscar/act. 9 https://www.boe.es/buscar/doc.
php?id=BOE-A-1996-8930 php?id=BOE-A-2003-6247
4 Article 36 and the following article of the law of 10 See in this connection https://www.boe.es/bus-
1879, now repealed, excluding a few cases from car/doc.php?id=BOE-A-2003-6247
the compulsory requirement of registration, stated
11 https://www.boe.es/buscar/doc.
that: ‘paintings, statues, bas- and haut-reliefs, archi-
php?id=BOE-A-2011-13114
tectural or topographical models and all pictorial,
sculptural or three-dimensional artworks in general
12 https://www.boe.es/buscar/doc.
are excluded from the obligation of registering and php?id=BOE-A-2011-13114
depositing them’. These exceptions are studied by 13 According to article 9.2 of the 2011 law. And article
Antonio M. Borrell y Soler (1948), who notes that 10 specifies the minimum number of copies of each
the lawmaker excludes these situations owing to work that are to be deposited in the Biblioteca
their nature and the difficulty of registering and Nacional de España, according to type.
depositing them, maintaining the possibility of 14 https://www.boe.es/boe/dias/2009/01/12/pdfs/
claiming authorship and ownership of the work BOE-A-2009-504.pdf
even if there is no registal proof (A. M. Borrell
15 https://www.boe.es/legislacion/documentos/
y Soler, El dominio según el Código Civil español,
ConstitucionCASTELLANO.pdf
Barcelona, Bosch, 1948, pp. 462 and ff).
16 http://www.un.org/es/documents/udhr/UDHR_
5 The interpretation of the second paragraph of
booklet_SP_web.pdf
article 36 leaves no room for doubt: ‘The period
for verifying the entry will be one year from the 17 https://www.boe.es/diario_boe/txt.
date of publication of the work; but the benefits php?id=BOE-A-1977-10734
of this law will be enjoyed by the owner from the 18 https://www.boe.es/buscar/act.
day the publication began, and will only be lost if php?id=BOE-A-1889-4763
the requirements are not complied with within the 19 https://www.boe.es/buscar/pdf/1995/BOE-A-
one-year period granted for registration’.
1995-25444-consolidado.pdf
6 https://www.boe.es/buscar/doc. 20 https://www.boe.es/buscar/act.
php?id=BOE-A-2003-6247.
php?id=BOE-A-1996-8930
7 The Central Registry is responsible for processing
Creators and Authorship in the Digital Age

21 http://noticias.juridicas.com/base_datos/Admin/
and deciding on applications for registration and
l34-2002.html
annotation and, as the case may be, cancellations
(second transitional provision of Royal Decree
22 http://noticias.juridicas.com/base_datos/Admin/
281/2003 of 7 March adopting the Rules of the l34-2002.html
General Registry of Intellectual Property). 23 https://www.boe.es/buscar/act.
8 The functions of the Commission include ensuring php?id=BOE-A-2002-13758
uniformity in the action of the Territorial Registries, 24 https://www.boe.es/buscar/act.
and article 5 of Royal Decree 281/2003 specifies in php?id=BOE-A-2000-323
detail the composition and essential functions of

200 NOTES
25 http://www.culturaydeporte.gob.es/cultu- 42 A set of well-defined, orderly and finite instruc-
ra-mecd/areas-cultura/propiedadintelectual/ tions or rules that make it possible to perform
lucha-contra-la-pirateria/marco-juridico/via-civil. an activity by means of a sequence of steps that
html do not pose any doubts to the person who is to
26 https://www.boe.es/buscar/doc. perform the activity. Starting from an initial state
php?id=BOE-A-2011-20652 and input, by following the sequence of steps,
one arrives at a final state and reaches a solution.
27 http://www.oepm.es/cs/OEPMSite/contenidos/
Algorithmics is the study of algorithms. Source:
ponen/sem_jueces_03/Modulos/tirado.pdf
Wikipedia.
28 https://www.boe.es/buscar/act.php?id=BOE-A- 43 During the early 1980s, two Americans (Diffie
2000-323&p=20151028&tn=1
and Hellman) formulated asymmetric encryption
29 World Interllectual Property Organization, ‘What algorithms for the first time, in such a way that
is a patent?’, http://www.wipo.int/patents/en/ the participants in the traffic were given a pair of
30 World Intellectual Property Organization, ‘What computationally asymmetric keys between them:
is a trademark?’, http://www.wipo.int/trademarks/ the public and private key. Accordingly, if I encrypt
en/trademarks.html with the public key, I can decrypt with the private
key and vice versa; if I encrypt with the private key,
31 World Intellectual Property Organization, ‘What
I can decrypt with the public one. One of the keys
is an industrial design?’, http://www.wipo.int/
(the private one) is only known by the person who
designs/en/
applies it (signature) and the other one (the public
32 World Intellectual Property Organization, ‘What is one) can be known to everyone involved in the
a geographical indication?’, http://www.wipo.int/ traffic.
geo_indications/en/
44 This feature is also used to place electronic
33 Satoshi Nakamoto, ‘Bitcoin: A Peer-to-Peer communications in ‘envelopes’. The proprietary
Electronic Cash System’, 2008, https://Bitcoin.org/ envelope that is generated can only be ‘opened’ by
Bitcoin.pdf the holder of the private key. So, if I want to send
34 https://en.wikipedia.org/wiki/Anarcho-capitalism a file confidentially, I encrypt it with the public key
35 https://revistas.uca.es/index.php/periferica/ of the recipient. In this way only the recipient, the
article/view/943 only person who knows the private key, can ‘open’
the digital envelope and access the contents of the
36 https://en.wikipedia.org/wiki/Crypto-anarchism
file.
37 https://www.activism.net/cypherpunk/crypto-an- 45 Cryptographic keys (public and private) are
archy.html
generated in native format (on the device where
38 https://www.Bitcoin.com/info/what-is-Bitcoin- the private one is to be saved). After both keys are
double-spending generated, the ‘public one’ is ‘exported’ (transmit-
39 https://people.eecs.berkeley.edu/~luca/cs174/ ted) to the validation repository. As stated above,
Creators and Authorship in the Digital Age

byzantine.pdf the ‘private’ one remains associated with the wallet.

40 https://es.wikipedia.org/wiki/Problema_de_los_ 46 I am referring to an alphanumeric representation
generales_bizantinos of a given set of bits. After applying the algorithm,
the file mutates into a sequence of characters that
41 In Appendix 1 readers will find a more detailed
represent it. These characters are any combination
explanation of Lambert’s formula. It will help give
of all the numbers and the letters a, b, c, d, e and f.
a better idea of the robustness of Blockchain as a
It is a hexadecimal combination of sixteen charac-
means of proof.
ters (ten numbers plus six letters).

AC/E DIGITAL CULTURE ANNUAL REPORT 2019 201

 47 https://www.investopedia.com/terms/m/merkle- hires a third party to act as an electronic witness
tree.asp of what occurred digitally. To do this, it acts as an
48 It should not be forgotten that much of the tech- intermediary between the nodes that carry out
nology used is a crypto-anarchist creation. Privacy the transaction and stores in a repository the logs
is a non-negotiable right for its followers. They that prove the existence, contents and date of
have always supported the use of cryptography. the transaction. This procedure is referred to in a
limited way in article 25 of the LSSI.
49 This is known as the ‘latency’ of electronic com-
munications. The best example is the broadcasting
54 Term coined by EU regulations establishing the
of football matches. I live next to the Bernabéu characteristics required of a file used to supply
football stadium, and when watching a broadcast data. It applies to all notification procedures in the
match I already know when a dribble has ended in digital field.
a goal. 55 Manuel González-Meneses, op. cit.
50 Manuel González- Meneses, Entender Blockchain. 56 I am referring to a file signed with the private key
Una introducción a la tecnología de registro, Pam- of a ‘public key certificate authority’ which certifies
plona, Aranzadi, 2017. that a ‘public key’ is linked to a specific identity. It is
51 https://www.Bitcoinmining.com/Bitcoin-min- usually distributed by the signee so that recipients
ing-fees/ can verify the signatures of files that are signed
electronically.
52 By this I mean unconditional acceptance of the
‘Blockchain file’ as a mathematical (statistical)
57 https://people.eecs.berkeley.edu/~luca/cs174/
reality. byzantine.pdf

53 The nature of electronic transactions, which are

58 https://es.wikipedia.org/wiki/Problema_de_los_
volatile and easily manipulated, makes it advisable generales_bizantinos
to produce third-party evidence. One of the parties
to the transaction (usually the proffering party)
Creators and Authorship in the Digital Age

202 NOTES
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Digital Trends in Culture

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ORGANISED AND PUBLISHED BY ACKNOWLEDGEMENTS

Acción Cultural Española (AC/E) We are grateful to all the organisations and
people whose experiences are mentioned as
Coordinator examples of digital practice in the various chap-
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Mayo Fuster Morell
Ignasi Labastida
Javier Lorenzo Rodríguez
Diego Naranjo
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