By Neehal Patel
On December 31, 2011 entered into force the Decree 1989 / 2011 December 30, which derives from the controversial Law Sinde, whose project began in 2009. Two years have taken to formalize complex intellectual property protection mechanism.
Two very different in their development processes, They are apparent through the body that was created in the reforms of the law 1/1996 of April 12, by which to test the revised text of the property intellectual and more specifically article 158, although always directed to the regulation of the most important materials of such rights. Management bodies and illegal downloads over the Internet.
What is the Commission of intellectual property?
It is a collegiate body attached to the Ministry of culture and sport. And it is composed by several members, among whom are experts in the field of intellectual property; as well as representatives of the Government, in particular, of the Ministry of culture and sport.
The main purpose of this composition is to take out the necessary decisions, relating, on the one hand, to relations between the entities of management and the consumers of their repertoire; and on the other hand, carry a considerable control in the use of new technologies allowing the use of musical and audiovisual works and even pictorial; assuming a serious damage to the economic rights of their authors. These data are translated into significant economic losses in the Faculty of exploitation of the works of the intellect.
How is the functioning of the Commission?
Intellectual property law is divided into two procedures performances. One takes place in the first section, which it carried out the procedures of mediation and arbitration in matters of management bodies. The other takes place in the second section, which carries out the necessary procedures to proceed at the close of the pages webs or removal of content that violate intellectual property rights.
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There are two sections whose operation is completely different despite being part of the same body. The first, closest to the negotiations but also the dispute through arbitration; the second closest to the adoption of measures and implementation of resolutions to prevent injury to the authors.
The operation of the first section of the Commission.
The law provides in this first section two ways: mediation and arbitration and in this last specific to reform arbitration fees they impose management bodies.
Gosso mode can say that prior to the arbitration is carried out mediation. According to which the Commission is involved in the negotiations and contracts between the management entities, its partners and the consumers of their repertoire (chains of radio and television, as well as bars, pubs etc.)
Both a procedure, and another is at the request of the parties or of one of them. When section values are met all the necessary requirements called the parties that reaching an agreement between them. In the arbitration shall be likewise a contentious procedure very similar to a trial, in which section should resolve the dispute through award and acting about the same things.
In the concrete procedure of arbitration for the replacement rates of the entities, will start in the same way as the previous ones, at the request of the same entity or Association of consumers of the repertoire. However, the award shall be dealt with by proposing the new rates.
The really important thing of this activity is that once undergone these procedures voluntarily interested parties, these must comply with what set the section, i.e. that the decision is binding.
The operation of the second section
This second section acts through an administrative procedure. It starts at the request of the injured person or their representatives, which initially should require the server itself using the data provided on its website to the withdrawal of the contents. If you do not find such data, will issue the request to the Secretariat of the second section, which, after obtaining authorization from the courts of contentious – administrative, invite the server 80(3) to give you the data of the person who will later address remove the contents.
If the contents are removed, the procedure is checked in understanding the admission of the violation.
In case of not to proceed with the withdrawal, required can emit written arguments defending his stance, well because it is license either because it falls within the limits of intellectual property. In any way you must provide all documents to prove it.
Within 48 hours having passed or not issued allegations will be to practice the test to issue the corresponding resolution. This resolution again indicate the removal of illegal content within 24 hours.
If you still remove such content, again to apply to the Court of administrative disputes to make the resolution of final execution, where the measures will be established to take, it will be the cessation of the web service, the use of the work subject to protection, until the license is obtained or withdraw the contents.
To archive the procedure by the immediate withdrawal, but return to resume although it is not on the same works, will happen to the testing phase.
Really highlights of that section is that everything is done electronically and that the cessation of web content is the last resort. And it does not go directly to users but the server services.
The only disadvantages of that section is that it can be extended fairly due to its complexity and although not want to go against users on many occasions are users that upload content, so if you identify responsible for it can say that it goes against the “pirate” user.
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