At the end of last year, we blogged about a second decision that had been handed down in Spain regarding the use of CC-licensed music. Thanks to the efforts of Thomas Margoni who works with the CC Italy team but currently has the pleasure of living in the beautiful city of Barcelona, we now have an English translation of the original decision (Luis CC Spanish Decision (final). A Spanish version of the original decision is here.
As explained when the first decision was handed down earlier in 2006, both cases arise from the fact that members of collecting societies in Spain (and in much of the rest of the world) cannot legally apply a CC license to their work (or even release it online) without the consent of their collecting society. This is because the membership terms of a collecting society require an exclusive license and sometimes a transfer of ownership of the rights of public performance/communication (that are essential to the act of making content available online) from the musician to the collecting society.
Both cases turn on evidentiary issues and have less to do with the enforceability of CC licenses — in the first case, the court held that the Spanish collecting society, the Sociedad General de Autores y Editores (“SGAE”) had proven only that music was played in the defendant’s bar; it had not gone the extra step of proving that it represented the musicians whose music was played in the bar. Consequently, the bar owner did not have to pay the SGAE fees.
In this second case, the SGAE put on evidence that satisfied the court that international music, pop music and regular radio broadcasts (that included Gloria Estefan) were being played in the bar. As a result, the bar owner in this second case was ordered to pay the SGAE fees.