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SPAIN: Tougher prison penalties for IP infringers

Author: Gonzalo Santos

On 1 July 2015, a major amendment of the Spanish Criminal Code entered into force. Among other measures, said amendment considerably increases the maximum prison sentences which can be imposed for criminal activities against intellectual property. Prior to the amendment, the maximum imprisonment penalties for them were of 2 years (4 years for aggravated cases). Now these have been increased to 4 and 6 years, respectively. Furthermore, manufacturing or making available means mainly aimed at neutralizing security measures put in place to protect intellectual property works can now be punished with imprisonment up to 3 years (previously up to 2 years).

This increase is particularly significant since, according to the Spanish legislation, defendants penalized to less than 2 years in prison may not have actually to go to jail (other sanctions are imposed) as long as they have no previous criminal records. Under the new version of the Criminal Code, convicts for non-aggravated crimes against intellectual property may have to serve prison sentences, even if they have not committed any previous criminal offenses.

Additionally, the Criminal Code now has a specific section on “pirate” websites, which grants right-holders a better protection against infringements committed over the internet. In particular, this new section expressly sets forth the possibility to interrupt the services provided by “pirate” websites and even block them.

The amendment of the Criminal Code also establishes that the same penalties may be imposed on anyone that imports or exports intellectual property works without the right holder’s consent and to anyone who, in order to grant a third party access to protected intellectual property works, disables or helps to disable any technological measures put in place to protect said works. Nonetheless, this conduct can only be punished when the infringer activities seek to obtain a direct or indirect economic gain.

This amendment of the Spanish Criminal Code enters into force after some recent court rulings which have imposed particularly severe sanctions on intellectual property infringers. Said tendency is certainly not likely to change with this amendment.

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