On June 27, 2023, the Spanish Association of Entertainment Law (DENAE) held, in collaboration with the Instituto Autor, Mediautor, the Ministry of Culture and Sports, and the Arbitration and Mediation Center (ADR) of the World Intellectual Property Organization (WIPO), the forum "Mediation Solutions in Intellectual Property and Technology Law Conflicts" The event took place at the Manuel de Falla Hall of the General Society of Authors and Publishers (SGAE) and could be attended in person or online.
The forum's development consisted of a roundtable discussion moderated by Javier Fernández - Lasquetty Miranda, a partner at ELZABURU and a member of DENAE's Board of Directors. First, Ignacio de Castro Llamas, Director of Intellectual Property Disputes and External Relations Division at the WIPO Arbitration and Mediation Center, discussed the experience of the WIPO Arbitration and Mediation Center, highlighting that 24% of the analyzed cases relate to copyright.
He also addressed the regulation of extrajudicial dispute resolution mechanisms recognized in Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (Article 17.9) and Regulation (EU) 2022/2065 on a Single Market for Digital Services (Article 21). Furthermore, he provided examples of ADR cases that have been analyzed by WIPO concerning audiovisual works, mobile applications, musical works, photographic works, social media platforms, software, video games, and esports.
Next, Carmen Castilla Velasco, Advisory Member and Secretary of Section 1 of the Intellectual Property Commission, Subdirectorate General of Intellectual Property, Directorate General of Cultural Industries, Intellectual Property, and Cooperation of the Ministry of Culture and Sports, analyzed the regulation, competencies, and functions of the First Section of the Intellectual Property Commission (SPCPI).
In particular, regarding mediation or arbitration competencies, Carmen Castillo pointed out that, as a result of the incorporation of Royal Decree-Law 24/2021, of November 2, which includes the transposition of Directive 2019/789 and Directive 2019/790, among others, the SPCPI's functions in mediation have been expanded. The SPCPI collaborates in negotiations, upon voluntary submission of the parties, regarding matters directly related to the collective management of intellectual property rights, such as disputes related to access and removal of protected works and content uploaded by users through online service providers, or conflicts related to transparency obligations in favor of authors, artists, performers, as well as conflicts related to the authorization of cable distribution of a broadcasting transmission between intellectual property rights holders and cable distribution companies.
Finally, she identified the challenges faced by the SPCPI in mediation, including the development of functions derived from Directive (EU) 2019/790 and the Digital Services Regulation, the flexibility of deadlines and the possibility of combining procedures, and lastly, the promotion of transactional solutions and conventional termination.
On her part, Marisa Castelo, President of the Instituto Autor and partner at Legalarte, analyzed the MEDIAUTOR Project - a specialized Mediation Center in intellectual property and cultural industries developed in collaboration with WIPO. She also highlighted the advantages of resorting to mediation, including the resolution of complex matters that require high specialization, confidentiality, speed, and lower costs, among others.
In relation to the above, several practical examples of intellectual property conflicts that can be resolved through mediation were also presented, such as the distribution of rights in samples or derivative works, the inclusion of non-authors in distribution, or accusations of plagiarism in the case of musical works; the copying of formats, distribution of percentages among co-authors, soundtracks, among others, in the case of audiovisual works; the infringement of moral rights in a plastic work, as well as unauthorized transformation or unauthorized registrations in the case of conflicts involving dramatic works.
Lastly, Javier Fernández - Lasquetty Miranda opened a round of mediation-related questions regarding the challenges of current regulations, the advantages of mediation, and the specific experiences of WIPO and SPCPI, which were addressed by the participants.