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Article 158 of the recast text of the Law on Intellectual Property, approved by the Royal Legislative Decree 1/1996, of 12 April, creates in the then Ministry of Culture, today Ministry of Education, Culture and Sport, with the character of a national collegiate body, the Intellectual Property Commission, assigning functions, on the one hand, to mediation and arbitration, and, on the other, to safeguarding rights in the field of intellectual property, to be exercised through, respectively, of the First and Second Sections of that Commission.

Paragraphs eighteen and nineteen of the first article of Law 21/2014, of 4 November, amending the recast text of the Law on Intellectual Property, approved by the Royal Legislative Decree 1/1996, of 12 April, and Law 1/2000, of January 7, of Civil Procedure, modify the legal regulation of the aforementioned Section First of the Commission of Intellectual Property, expanding the functions to be exercised by this section, including among those of determination of fees for the exploitation of the rights of collective management rights, and for the voluntary collective management rights which, in respect of the same category of holders, are entitled to remuneration on the same work or benefit, and strengthen their function of control over the general rates laid down by the entities for the management of intellectual property rights.

Thus, the First Section of the Intellectual Property Commission will exercise its functions of mediation and arbitration in the terms provided for in the legal modification carried out by Law 21/2014, of 4 November, and will establish the amount of the remuneration required for the use of works and other performance of the management institutions ' repertoire, the form of payment and other conditions necessary to make the rights referred to in the preceding paragraph effective, at application of the affected management entity itself, of a user association, of a the Section, where there is no agreement between the two, within six months of the formal start of the negotiations, or of a particularly significant user. Finally, Section 1 will exercise its control function by ensuring that the general rates established by management entities in compliance with their obligations are fair and non-discriminatory.

The First Section thus strengthens its status as a particularly suitable instrument in the operation of the current system of intellectual property to resolve conflicts between management entities and users of the copyright and related rights, which generally requires a complex assessment of rights and interests, establishing new procedures and updating those provided for in Chapters III, IV and V of Royal Decree 1889/2011, for which regulates the Intellectual Property Commission.

Article 158a of the recast text of the Law on Intellectual Property, in its wording given by Law 21/2014, of 4 November, mandates the Government to determine the procedure for the exercise of the functions that the First Section must develop in accordance with the provisions of its current legal regulation.

In the elaboration of this standard, the Ministries of Justice, Industry, Energy and Tourism, and Economy and Competitiveness have been informed, and the Autonomous Communities have been consulted.

Also, the General Council of the Judiciary and the Council of Consumers and Users have been consulted and issued.

Likewise, a process of public information has been carried out and the organizations and associations recognized by the law have been heard and that group or represent the legitimate stakeholders and whose purposes are directly related with the object of the royal decree.

In its virtue, on the proposal of the Minister of Education, Culture and Sport and the Minister of Justice, with the prior approval of the Minister of Finance and Public Administrations, in agreement with the State Council and after deliberation of the Council of Ministers at its meeting on 13 November 2015,

DISPONGO:

CHAPTER I

General provisions

Article 1. Object.

This royal decree is intended to regulate the organizational, procedural and operating system of the First Section of the Commission on Intellectual Property, a national collegiate body assigned to the Secretariat State of Culture of the Ministry of Education, Culture and Sport, referred to in Articles 158 and 158 bis of the recast text of the Law on Intellectual Property, approved by the Royal Legislative Decree 1/1996 of 12 April.

CHAPTER II

Functions and Composition of the First Section of the Intellectual Property Commission

Article 2. Functions and legal status.

1. The First Section of the Intellectual Property Commission exercises functions of mediation, arbitration, determination of tariffs and control of the general tariffs in the matters and assumptions provided for in Article 158a of the recast of the Law of Intellectual Property.

2. The First Section of the Intellectual Property Commission shall be governed by the recast text of the Law on Intellectual Property and by this royal decree and, in an additional manner, by Law 39/2015 of 1 October of the Procedure Common Administrative Office of the Public Administrations, and Law 40/2015, of 1 October, of the Legal Regime of the Public Sector, by Law 60/2003, of 23 December, of Arbitration, in respect of arbitral proceedings, and by Law 5/2012, of 6 of July, of mediation in civil and commercial matters, in mediation procedures.

3. The fee for the determination of fees for the exploitation of collective management rights and for the voluntary collective management rights which, in respect of the same category of holders, are met with a right of remuneration on the same work or benefit, shall be governed by the third provision of Law 21/2014 of 4 November, by the provisions laid down by Law 8/1989 of 13 April, of Public Fees and Prices, and by the present real decree.

Article 3. Composition, organization and operation of Section 1.

1. The first section of the Commission shall be composed of four members appointed by the Government by means of a royal decree, on the proposal, respectively, of the holders of the Ministries of Education, Culture and Sport, of Justice, of Industry, Energy and Tourism, and Economic and Competitiveness, for a period of five years renewable for one time, among experts of recognized competence in the field of intellectual property and defense of the competition. Without prejudice to the fulfilment of the above requirement, in the proposal for a nomination to be made by each of the holders of the designated ministerial departments, the experience or knowledge in the areas of the ministry may be further assessed. economic law, the audiovisual market and electronic communications. The same royal decree also provides for the appointment of two alternates for each holder, who shall meet the same appointment requirements as the members of the members and shall act as substitutes for the same system. assumptions of delegation of functions, vacancy, absence, illness, or other legal cause. The delegation of functions will be motivated, and the period of the same will be specified, without it being possible to make any indefinite delegation in time.

2. The members of the First Section shall only cease before the expiry of the period referred to in paragraph 1, at their own request or by separation agreed by the Government, after examination of the case, for a serious breach of their obligations, incapacity for the exercise of their function, incompatibility or conviction for a criminal offence.

3. By order of the Ministry of Education, Culture and Sport, the President of the Section shall be appointed from among the members, who shall exercise the quality vote. The President's duties include the direction and coordination of the work, debates and votes of the section, the convening and establishment of the agenda of the meetings, the presidency of the meetings, the impetus of the action of the Section and the procedures to be dealt with, the exercise of the other powers necessary for the proper functioning of the Section and the exercise of the powers conferred on the Presidents of the (a) the law of the public sector in accordance with Law 40/2015 of 1 October 2015.

4. The ministerial order provided for in the previous paragraph shall also contain the appointment of one of the members of the Section as Vice-President, corresponding to the duties of the President in the case of the vacancy, absence, disease, or other legal cause such as abstention or recusal.

5. He shall act as Registrar, with a voice but without a vote, an official of the Ministry of Education, Culture and Sport, at the level of Deputy Director General or assimilated, by appointment by the holder of the General Directorate-General for Property intellectual. The Registrar shall be responsible for the signature of the acts of procedure, the lifting of the minutes of the meetings and agreements to be concluded, the advice given by the Section in respect of the functions inherent in his condition as such when is required, as well as the secretariat of the collegiate bodies provided for in Law 40/2015, of 1 October, of the Legal Regime of the Public Sector.

6. The development of his or her duties, as well as the circumstances of the Secretary for vacancy, absence or illness, shall be addressed with the personal, technical and budgetary resources assigned to the Secretary of State for Culture.

CHAPTER III

General principles

Section 1. Issues common to all procedures

Article 4. Guiding principles.

1. The First Section shall act in accordance with the principles of legality, impartiality, neutrality, equality between the parties and the hearing. The procedures for mediation and arbitration shall also apply the principles of voluntarism, except for the invocation of an agreement, an arbitration clause or a written agreement of mediation, and confidentiality.

2. The treatment carried out by the First Section of the personal data used in the actions carried out in the field of its functions, shall be carried out in accordance with the provisions of the Organic Law 15/1999, of 13 December, of Protection of Personal Data, and its development regulations.

Article 5. Abstention and recusal.

1. The members of the First Section will be subject to the rules on recusal, abstention and causes that compromise the impartiality contained in Law 60/2003, of 23 December, of Arbitration, in arbitral proceedings, in Law 5/2012, of 6 of July, of mediation in civil and commercial matters, in mediation procedures, and to Law 40/2015, of October 1, of Legal Regime of the Public Sector, in the rest of the actions that it has to carry out.

2. In cases where a legal reason for recusal or abstention is to be found, which prevents the President from intervening in a case submitted to the President, the Vice-President and the latter shall be replaced by one of his alternates. In addition, where such cause affects the members, the members shall replace one of their alternate members.

Article 6. Preferential use of electronic media.

1. All the actions of the First Section shall be carried out preferably by using electronic means, in accordance with the provisions of Law 40/2015 of 1 October, of Legal Regime of the Public Sector.

2. The persons entitled to request the intervention of the First Section in accordance with Article 158a of the recast text of the Law on Intellectual Property shall have at the electronic headquarters of the Ministry of Education, Culture and Sport of a electronic form allowing the submission of the application in electronic form.

3. A system of electronic notifications may be used throughout the processing of the procedures and for those acts requiring notification to the data subjects. It will also be possible to receive documentation and allegations by electronic means, and also to consult the state of the handling of the file, from whose copy an electronic file will be guarded.

Article 7. Place of action.

The place of performance of the actions corresponding to the First Section shall be that of its seat in the Ministry of Education, Culture and Sport, except that, in the procedures of mediation or arbitration, at the request of all the parties, the Section agrees that it be done elsewhere.

Section 2. Issues common to mediation and arbitration procedures

Article 8. Judicial or extrajudicial actions.

The interposition of judicial or extrajudicial actions will not suspend the processing of mediation or arbitration proceedings. The approach of the dispute under mediation or arbitration before the First Section shall prevent the Judges and the Courts from hearing the dispute during the time in which the proceedings are carried out, provided that the party concerned is Invoke by means of a declinatory, and so agreed by the court. The foregoing is without prejudice to the exceptions contained in Law 60/2003 of 23 December of Arbitration, in arbitral proceedings, and in Law 5/2012, of 6 July, of mediation in civil and commercial matters, in procedures of mediation.

Article 9. Competition exceptions.

The First Section shall decide on its own motion on its own jurisdiction, including exceptions to the existence or validity of the mediation or arbitration agreement or clause, as well as any other estimate to prevent entry into the fund of the dispute, in accordance with the provisions of Law 60/2003, of 23 December, of Arbitration, in arbitral proceedings, in Law 5/2012, of July 6, of mediation in civil and commercial matters, in mediation procedures, and in this royal decree.

Article 10. Accumulation and prevalence of procedures.

1. The First Section shall decide in a reasoned manner on the admission of the request for mediation or arbitration, on the cumulation of the application in respect of other procedures which are being brought before the Section and on the prevalence of a procedure versus another.

2. In the event that mediation and arbitration procedures are simultaneously requested by the same parties and with respect to the same subject, the mediation procedure shall be dealt with first, and the mediation procedure cannot be considered if it is an arbitration proceeding between the same parties is under way with the First Section, nor vice versa. A mediation or arbitration procedure may not be considered when a procedure for the determination of tariffs has been accepted.

3. No mediation or arbitration shall be held in those cases where there are in force by a prior decision of the First Section the fees for the right or collective management rights on which the object of the conflict is raised and, where appropriate, by the right of concurrent voluntary collective management with the same, in the terms set out in Article 158a (3) of the recast text of the Law on Intellectual Property.

4. The initiation of the tariff control procedure shall not proceed with respect to those general tariffs on which a procedure for mediation, arbitration or determination of tariffs is in progress with the First Section.

CHAPTER IV

The mediation procedure

Article 11. The mediation request.

1. The request for mediation shall be addressed to the First Section, by means of the official model set out in Annex I to this royal decree, and as provided for in Article 158a (1) of the recast text of the Law on Intellectual Property, requesting mediation by the party that urges the same or, if applicable, by both parties together:

(a) invoking a written agreement of mediation in the terms defined in Law 5/2012, of 6 July, of mediation in civil and commercial matters, under which the parties have undertaken to submit the dispute to the mediation of the First Section of the Intellectual Property Commission,

b) submitting a joint mediation request by the parties by common agreement, or

c) in default of a written mediation or joint request, urging that you move your mediation request to the other party, so that you manifest if you want to submit to the required mediation.

2. The mediation request will contain at least:

(a) The full name, address and other relevant data for the identification and contact of the party or parties calling for mediation, and of the party or parties. In particular, it shall indicate the addresses to which communications shall be addressed to all those parties.

b) The description of the object of the controversy.

(c) The claims made, in a succinct manner, with the expression, if possible, of their value.

d) The act, contract or legal business of which the dispute arises or with which it is related.

e) The mediation written pact that is invoked, if any.

(f) The demonstration, of the applicant party or parties, of acceptance of the impartiality of the members of the First Section in their status as mediators, or, if not so, the causes of recusal which they understand concurrent.

3. The request for mediation shall be accompanied by at least the following documents:

a) Copy of the mediation written pact, if it existed.

b) Copies of the contracts, if any, that it brings cause the controversy.

(c) a document that provides for the content of the claims of the applicant party (s) and those that, if any, it considers to be maintained by the other party or parties.

d) If applicable, written to accredit the representation in the mediation, when the party does not act for itself. The granting of representation to the relevant administrative services will also be possible.

e) Constancy of the payment of the provision of funds for the expenses of the procedure for the provision of services of the First Section of the Commission of Intellectual Property in its condition of mediator, in the amount established in the Order of the Minister of Education, Culture and Sport establishing public prices for the provision of services of the First Section of the Commission on Intellectual Property, or the one that corresponds at any time.

(f) Where the application is from a user association or other similar entity of an associative nature, it must be accompanied by a certificate containing the name and name or social name of the members of the association. association, as well as the agreement and mandate of representation adopted, in relation to mediation, by its governing body.

4. Upon receipt of the request for mediation with all of its documents and under-healed, where appropriate, the defects in which it suffers, Section I shall, within a period of 15 days, send a copy of the request to the party.

5. The requested party shall respond to the request for mediation within 15 working days of its receipt. Failure to submit the reply to the request for mediation within the time limit shall not suspend the procedure in the case provided for in paragraph 1.a), but shall be understood as a refusal to submit to the mediation and shall prevent further proceedings. the procedure in the case referred to in paragraph 1 (c).

6. The response to the mediation request will contain at least:

(a) The full name of the requested party, its address and other information relevant to its identification and contact; in particular the person and address to whom the communications to be made shall be addressed. during mediation.

b) Your comments on the description of the dispute by the party calling for mediation.

c) Your position on the claims of the instated party. If you object to the mediation, your position on the existence, validity or applicability of the written agreement of mediation.

(d) The expression of the party, where appropriate, of acceptance of the impartiality of the members of the First Section in their status as mediators, or, if not so, of the reasons for recusal which they understand concurrent.

7. The response to the request for mediation shall be accompanied by at least the following documents:

a) Written to accredit the representation, when the party does not act on its own. The granting of representation to the relevant administrative services will also be possible.

b) In case of acceptance of the mediation, constancy of payment of the provision of funds for the expenses of administration of the procedure by the Commission of Intellectual Property, in the amount established in the Order of the Minister of Education, Culture and Sport establishing public prices for the provision of services of the First Section of the Commission on Intellectual Property, or the one that corresponds to each moment.

8. Received the reply to the request for mediation with all its documents, the First Section shall, within 15 days, transmit a copy to the instant of the request and shall, within the same period, agree to the admission to the application of the mediation by a majority, in accordance with its competence and with the other requirements set out in the recast text of the Law on Intellectual Property and in this chapter. In the event that the admission or cumulation of the application is agreed to other procedures which are being brought before the Section, and the prevalence of a proceeding with respect to another, the decision shall be reasoned to the parties, and The Court of First Instance, in accordance with Article 123.1 of Law 39/2015 of 1 October 2015, of the Common Administrative Procedure of the Public Administrations.

Article 12. Negotiations and proposal in mediation.

1. In the letter of admission to the application for mediation, the section shall convene a first constituent session, which shall be held within a maximum of one month after notification of the request, to fix its positions. initial, providing documentation that they consider appropriate and expose their arguments. The First Section shall also report on the programme of actions to be carried out during the procedure and the corresponding timetable to be followed, without prejudice to its possible modification.

2. Where the positions of the parties are fixed, the First Section shall convene any additional information sessions which it considers to be accurate, either with all the parties, with any of them, with the aim of reaching an agreement between the parties or the parties. Section proposals for resolving the conflict.

3. The inattendance or inactivity of either party shall not impede the development of the procedure, nor shall the Section present proposals for the resolution of the conflict.

4. At any time in the proceedings, the Section may, at the initiative of the members or the parties, agree on the practice of the evidence which it considers relevant. The costs incurred by the practice of the test shall be satisfied by the party who has requested it, or by both parties if they accept it, or on an equal basis where the evidence has been proposed by the members of the Section, except that the parties agree to be satisfied by one of them.

Article 13. Termination of the procedure.

1. The mediation procedure shall, in any event, terminate when a joint or party withdrawal takes place or when the parties reach an agreement on the issues at issue. In such a case, they shall inform the Section, accompanying the agreement, which shall be entered in the resolution which agrees to terminate the procedure by means of compromise or withdrawal. The procedure shall also end when the Section appreciates in a justified manner that the positions are irreconcilable or another cause to determine its conclusion.

2. Apart from the assumptions provided for in the previous paragraph, where the Section considers that the questions have been sufficiently discussed, and in any event within two months at most from the admission to the application of the application, it shall completed the attempt to compromise and will summon the parties to a hearing to make their final positions.

3. On the basis of the final positions, as well as the previous act, the Section shall, where appropriate, within one month of the formulation of these final positions, make a proposal for a solution to the dispute, which shall be notified to the parties.

4. If, within two months of notification of the proposal for a solution to the dispute, no party has expressed its reasoned opposition to the proposed solution, all parties shall be deemed to have accepted it, to convert the solution proposal into a mediation agreement.

5. If the Section appreciates the impossibility of reaching an agreement between the parties, it shall end the procedure without a reasoned consent, and shall notify all interested parties.

6. In any event, the maximum duration of the procedure shall be six months from the date of admission to the procedure of the request for mediation.

7. The mediation agreements expressly accepted by the parties, on a proposal from the First Section, as well as those provided for in paragraph 4, shall produce the effects provided for in Law 60/2003 of 23 December of Arbitration and shall be subject to review. the civil court order.

CHAPTER V

The general arbitration procedure

Article 14. The request for arbitration.

1. The request for arbitration shall be addressed to the First Section, by means of the official model set out in Annex II to this royal decree, and as provided for in paragraph 2.a) of Article 158a of the Recast Text of the Law on Intellectual Property, requesting arbitration by the applicant or, where appropriate, by both parties together:

(a) invoking an arbitration agreement or clause in the terms defined in Law 60/2003 of 23 December of Arbitration under which the parties have undertaken to submit the dispute to the arbitration of the Commission of Intellectual Property,

b) submitting an application for joint arbitration by the parties by common agreement, or

c) in default of agreement or arbitration clause or joint request, urging that you move from your arbitration request to the other party, to manifest if you wish to submit to the required arbitration.

2. The request for arbitration shall contain at least the following particulars:

(a) The full name, address, and other relevant data for the identification and contact of the plaintiffs and parties or parties in demand. In particular, it shall indicate the addresses to which communications shall be addressed to all those parties.

b) The description of the object of the controversy.

(c) The claims made, in a succinct manner, with the expression, if possible, of their value.

d) The act, contract or legal business of which the dispute arises or with which it is related.

e) The arbitration agreement or clause that, if any, is invoked.

(f) The demonstration, of the applicant party or parties, of acceptance of the impartiality of the members of the First Section in their capacity as arbitrator, or, if not so, the causes of recusal which they understand concurrent.

3. The request for arbitration shall be accompanied by at least the following documents:

a) Copy of the arbitration agreement or arbitration clause if it existed.

b) Copies of the contracts, if any, that it brings cause the controversy.

(c) a document that provides for the content of the claims of the applicant party (s) and those that, if any, it considers to be maintained by the other party or parties.

d) If applicable, written to accredit the representation, when the party does not act for itself. The granting of representation to the relevant administrative services will also be possible.

e) Constancy of the payment of the provision of funds for the expenses of the procedure for the provision of services of the First Section of the Commission of Property, in its condition of arbitrator, in the amount established in the Order of the Minister of Education, Culture and Sport establishing public prices for the provision of services of the First Section of the Intellectual Property Commission.

(f) Where the application is submitted by a user association or other similar entity of an associative nature which is legally eligible for this arbitration procedure, it must be accompanied by a certificate in which it is understands the name or social name of the members of the association, as well as the agreement and mandate of representation adopted, in relation to the arbitration, by its governing body.

(g) Where the application is submitted by a national broadcaster or a particularly significant user, the documentation which he or she considers to justify meeting that condition for assessment by the Section First.

4. Upon receipt of the request for arbitration with all its documents and under-healed, if any, the defects of which it suffers, Section First shall forward, within 15 days, to the defendant or defendant a copy of the application.

5. The respondent shall respond to the request for arbitration within thirty working days from its receipt. Failure to submit the reply to the request for arbitration within the time limit shall not suspend the procedure in the case provided for in paragraph 1.a), but shall be understood as a refusal to submit to the arbitration and shall prevent further proceedings. procedure in the case referred to in paragraph 1 (c).

6. The reply to the request for arbitration shall contain at least the following particulars:

(a) The full name of the defendant, his address and other information relevant to his identification and contact; in particular he shall designate the person and address to whom the communications to be made during the arbitration.

b) Your comments on the description of the dispute made by the complainant.

c) His position on the claimant's claims.

d) If you object to the arbitration, your position on the existence, validity or applicability of the arbitration agreement or clause.

e) The manifestation, if any, of acceptance of the impartiality of the members of the First Section in their capacity as arbitrator, or, if not so, the causes of recusal that they understand to be present.

7. The response to the request for arbitration shall be accompanied by at least the following documents:

a) Written to accredit the representation, when the party does not act on its own. The granting of representation to the relevant administrative services will also be possible.

b) In case of acceptance of the arbitration, evidence of the payment of the provision of funds for the expenses of the procedure for the provision of services of the First Section of the Commission of Intellectual Property, in its condition of arbitrator, in the amount established in the Order of the Minister of Education, Culture and Sport establishing public prices for the provision of services of the First Section of the Commission on Intellectual Property.

8. Upon receipt of the reply to the request for arbitration with all its documents, the First Section shall, within 15 days, transmit a copy to the complainant.

9. In the same period, the First Section shall agree to the admission of the application for arbitration by a majority, in accordance with its jurisdiction and with the other requirements laid down in the recast of the Law on Intellectual Property and in this Law. chapter. In the event that the admission or the cumulation of the application is agreed to other procedures which are being brought before the Section, the decision shall be reasoned, notified to the parties and may be resubmitted to the first section itself, in the provisions of Article 123.1 of Law 39/2015 of 1 October of the Common Administrative Procedure of Public Administrations.

Article 15. Arbitration procedure.

1. The First Section shall decide, on its own initiative or at the request of the parties, on the admissibility, relevance and usefulness of the evidence proposed by the parties, on their practice and their assessment, and on the practice of additional evidence, where consider them necessary for the formation of their criteria. The costs incurred by the practice of the test shall be satisfied by the party who has requested it, or by both parties if they accept it, or in an equal manner between the parties to the proceedings where it has been proposed by the Section. unless the parties agree to be satisfied by one of them.

2. The First Section may convene such meetings as it deems necessary for the purpose of promoting an agreement between the parties in order to resolve the conflict.

3. Where the Section considers that the questions have been sufficiently discussed and provided that no agreement has been reached between the parties in the terms provided for in the preceding paragraph, it shall convene a hearing for the parties to make their views. definitive positions.

Article 16. Termination of the procedure.

1. The procedure shall terminate, unless prior agreement of the parties, by one or more written and reasoned awards which shall resolve all the questions raised by those in the field of the Section's own powers. The Section shall act in the final award on the costs of arbitration, as defined in the terms of Article 37 (6) of Law 60/2003 of 23 December of Arbitration. Any decision on costs shall be reasoned and, unless otherwise written in writing, as a general rule, it shall reflect the success and failure of the parties ' respective claims, unless they are met by the parties concerned. circumstances of the case, the members of the Section would like this general principle to be inappropriate.

2. The adopted awards shall be binding and enforceable and enforceable in accordance with the provisions of Law 60/2003 of 23 December of Arbitration.

3. Unless otherwise agreed by the parties, the award shall be made within a maximum of six months from the admission to the arbitration procedure, which may be extended for a maximum of two months if the parties do not object.

4. By way of derogation from the above paragraphs, if, during the course of the arbitral proceedings, the parties reach an agreement which ends, in whole or in part, the dispute, it shall be formalised in writing and shall be communicated to the an end to the action taken in respect of the points agreed upon, and that award is made on the agreed terms unless it appreciates the reasons for opposing it or the parties do not agree to it.

CHAPTER VI

The rate substitution arbitration procedure

Article 17. Applicable procedure.

When an intellectual property rights management entity, a user association, a broadcast entity or a particularly significant affected user makes use of the power provided for in paragraph 2.b) of the Article 158a of the recast text of the Law on Intellectual Property, in order to fix a replacement quantity of the general tariffs established by a management entity, the procedure shall be in accordance with the provisions of Chapter V, The provisions of this Chapter shall

.

Article 18. Request for arbitration to set a replacement amount for general tariffs.

1. The request for arbitration may be made by the management organisation, the user association, the broadcasting organisation, or the particularly significant user concerned, and, in addition to the requirements and documents set out in Article 14 The following elements shall be included in the official model set out in Annex III to this royal decree:

a) Set, as the object of the same, a replacement quantity of the general rates established by the management entity.

b) Expose the reasons that justify the request to replace the amount set by the management entity.

c) Propose a particular or determinable substitute quantity by means of an arithmetic operation.

d) Include, in the absence of an arbitration agreement, the express submission to the jurisdiction of the First Section as provided for in Article 158 bis.2.b) of the recast text of the Law on Intellectual Property, to provide a solution to the conflict.

e) The proposing party may accompany the documents required in points (b) and (c) of this paragraph as many other documents and evidence as appropriate.

2. The first section shall forward the application to the other party to submit its reply with the requirements and documents laid down in Article 14, within 30 working days of its receipt. Failure to submit the reply within the time limit referred to shall have the effects referred to in Article 14.5 and shall prevent the proceeding from being continued.

3. The section shall decide on the admission of the procedure in accordance with Article 14.9. The admission of the application, which may be used as a replacement against the First Section, shall leave the ordinary court of justice to know of the case referred to that Section.

Article 19. Development of the procedure.

A request for the fixing of a general tariff replacement quantity shall be admitted to the parties, the procedure being developed in accordance with Articles 15 and 16 with the following specialties:

(a) The inattendance or inactivity of either party shall not impede the conduct of the proceedings, nor shall the dispute settlement decision be taken, nor shall it deprive it of its effectiveness.

(b) The filing of a request for the replacement of the general fees in accordance with this Chapter does not exempt individual or social entrepreneurs represented by the association of users or the entity of the obligation to make effective, under reserve or notarial or judicially, the amount established by the management entity in accordance with Article 157.2 of the recast of the Law of Intellectual property, or the amount that you may be able to establish at the request of a party Section, to be understood as authorized to exercise the right of intellectual property to which the general rates object of the controversy refer.

(c) The award shall be written and reasoned, for which it shall take into account the minimum criteria laid down in Article 157.1.b) of the recast text of the Law on Intellectual Property.

CHAPTER VII

The rate determination procedure.

Article 20. Rate determination request.

1. They shall be entitled to be a party to the procedure for the determination of tariffs; the management entities, the associations of representative users at the national level of the sector concerned, the national broadcasting organisations and particularly significant users.

2. The application for the determination of tariffs shall be addressed to Section 1, by means of the official model set out in Annex IV to this royal decree by the requesting party, or if appropriate, by both parties together and shall contain:

(a) The full name, address and other relevant data for the identification and contact of the requesting party (s) and the party (s) required to negotiate, as well as those of their representatives. In particular, the addresses to which communications must be addressed to all those parties shall be indicated.

(b) The object of the conflict, which shall be limited to the determination of the tariffs and the conditions necessary to make effective the rights referred to in Article 158a (3) of the recast of the Intellectual Property Law.

(c) The formal date of the commencement of negotiations between the conflicting parties in the terms of paragraphs 4 and 5 of this Article.

(d) The declaration of the non-existence of an agreement within six months from the formal commencement of the negotiation between the parties.

(e) The claim that it is formulated with respect to the corresponding tariffs and the conditions necessary to render effective the rights referred to in Article 158a (3) of the recast of the Law of Intellectual property, which may be of different management entities when the applicant is one of the mentioned in the following paragraph 3.a), 1. º and 2. º, of this article, provided that they have previously been required to negotiate and not agreed, the tariffs refer to the same operating mode, in respect of the same class of works or services such as audiovisual, music, and tariffs are applicable to users of the same sector. In the event of a request for the fixing of fees for a compulsory collective management right or rights which, in respect of the same category of holders, is conferred with a right of voluntary collective management on the same work or provision, the object of the conflict must be binding in a joint manner to both rights.

(f) The estimated total annual figure equivalent to the exploitation of the rights that are the subject of the dispute, for the purposes of determining the fee for which the payment provides for Article 26.

3. The application shall be accompanied by the following documentation:

a) Depending on the applicant party in the procedure, they shall submit:

1. In the case of the user associations, the accreditation of being representative at the national level in the corresponding sector and a certification in which the name or social name and the address is understood of individual or social entrepreneurs on whose behalf the application is submitted, as well as the agreement and mandate of representation adopted, in relation to the procedure for the determination of tariffs, by its governing body.

2. In the case of broadcast entities of national scope or particularly significant users, the documentation that they give to their judgment warrants that they meet that condition for their assessment by the First Section.

b) When the party does not act on its own, written to accredit the representation. The granting of representation to the relevant administrative services shall also be possible where representatives are appointed.

(c) The documentation certifying the non-existence of an agreement within six months from the formal start of the negotiation between the parties to the dispute, for which it must be provided:

1. Document that accredits the formal start of the negotiation, containing the names designated by the parties to carry out the negotiation and the ability of the parties to engage them in the negotiation.

2. Deed to accredit the absence of agreement between the parties within six months from the date of formal commencement of the negotiation.

d) Reasoned report to support the pretense that is formulated with respect to the corresponding tariffs, based on the provisions of article 157.1.b) of the Recast Text of the Law on Intellectual Property, which must contain both the fixing of tariffs and the specific terms for making them effective, such as the temporary and territorial scope of application of the tariffs, the obligations for the exchange of information, the powers of verification of the information, audit, or deadlines and the form of payment.

e) the documentation justifying or crediting the estimated total annual figure equivalent to the exploitation of the rights covered by the dispute, for the purposes of determining the fee for which the payment provides for Article 26.

4. For the purposes of this Article, the date on which the parties mutually agree to initiate such a negotiation, or the date of the first trading meeting held or the date of the negotiation, shall be deemed to be the formal start of the negotiation. effective constitution of the relevant negotiating table if any.

5. In the event that it is not possible to formally initiate the negotiation in the terms referred to in the previous paragraph and without prejudice to the obligation referred to in Article 157.1.c) of the recast text of the Law on Intellectual Property, It is understood that the formal initiation of the negotiations occurs once the requested party has received the requested party to negotiate the formal request for the initiation of the negotiations, which must be accredited by any means valid in law. In this case, he or the applicants shall be exempt from the presentation of the documentation provided for in paragraph 3 (c) of this Article.

6. If the application does not meet the requirements laid down in this Article, the First Section shall require the person concerned to subsc the faults or to accompany the required documents within a period of 10 days, indicating that, if not The Commission shall, in accordance with Article 1 (1) of Regulation (EU) no-decision of the European Parliament and of the Council. Against that judgment, the applicant shall bring the replacement of the replacement to the First Section.

Article 21. Start of the procedure.

1. Once it has been established that the application meets the required requirements, the First Section will transfer the requested party to the requested party in order to present the arguments it deems appropriate regarding its admission to the proceedings, as well as, in his case, on the abstention or recusal of the members of the First Section, within the time limit set by the President and which, in no case, may exceed 15 days.

2. Having received the arguments, or after the deadline referred to in the preceding paragraph, without any allegations being made, the First Section shall decide by a majority within a maximum of 15 days on the admission or admission to the application of the procedure for the determination of tariffs, in accordance with the competence of the same and with the other requirements established in the recast text of the Law of Intellectual Property and in this royal decree, which will be notified to the parts. Against that decision, the right to bring the replacement of a replacement to the First Section, under Article 123.1 of Law No 39/2015 of 1 October 2015, of the Common Administrative Procedure of the Administrations Public.

3. They will be the cause of admission to the procedure, in any case:

(a) The application manifestly unfounded or otherwise than the exercise of the functions entrusted to the First Section.

(b) The request for the determination of tariffs when they have been established in a mediation or arbitration procedure by Section I.

c) Not to hold the capacity of the party, the applicant or the required party, in accordance with Article 20.1.

d) Be found in force by a previous Section First resolution in the terms of Article 24.2.

(e) Not to be considered jointly in the object of the conflict of the application the fixing of fees for a right or rights of collective management obligatory when, in respect of the same category of holders, it concurs with a right collective management on the same work or performance.

4. The First Section, after hearing the parties for a common period of five days, may, on its own initiative, agree to the cumulation of the fee-fixing files admitted to processing, provided that they relate to the same mode of operation, in respect of the same class of works or services such as, audiovisual, musical, and tariffs are applicable to users of the same sector. No administrative appeal shall be brought against the cumulation decision.

5. The decision of the First Section for admission to proceedings shall be published in the "Official Gazette of the State", for the purpose of making those holders of legitimate and direct interests liable to be affected by the final decision. which is given and which are not already duly personified in the proceedings may, within a period of 15 days from the day following that of the publication, be provided for in that publication.

6. The period of instruction and the decision of the file shall be nine months from the admission to the proceedings of the application of the procedure, which shall take place at the beginning of the procedure.

Article 22. Provisional measures.

Once the proceedings have been initiated, the First Section may, on its own initiative, give a reasoned opinion on provisional measures designed to ensure the effectiveness of the administrative decision which may be made, if they exist. sufficient evidence to do so, and in particular the payment to account by users, in relation to the remuneration required by the management entities for the exploitation of remuneration rights and for the purposes of understanding the authorisation with respect to the exclusive rights concurrent with them, of a certain percentage of the general rates approved by each management entity or any other percentage that is determined by a reasoned decision.

Article 23. Procedure instruction.

1. Once the parties have been informed of the acceptance of the application, the First Section shall carry out the necessary acts of instruction for the knowledge and determination of the data under which the decision is to be made.

2. During the instruction, the parties and interested third parties who have been represented in the proceedings may submit arguments and propose the practice of the evidence they deem relevant for the defence of their interests which relate to the rates to be set by the First Section, in particular, in the case of the parties, in order to facilitate or supplement the information exchanged during the negotiations prior to the start of the administrative procedure, as well as the provided at the beginning of the administrative procedure.

3. The First Section shall decide in a reasoned and reasoned manner on the admissibility of the evidence proposed by the legitimate parties and interested third parties who have been involved in the proceedings, on their practice and on their assessment, and on the practice of complementary testing, where they consider it necessary for the training of their criteria. The practice or incorporation of a test may be refused where it is manifestly inappropriate or unnecessary. In cases where a supplementary test has been proposed by the First Section, the assumption of the cost of the same shall be distributed equally between the parties to the proceedings, unless one of the parties agrees to assume the all of its cost.

4. If a means of proof is in possession or under the control of a party, and is unjustifiably refused to submit or give access to it, Section 1 may extract from such conduct, taking into account the other evidence, the conclusions that they estimate from the facts to be tested, such as attributing to these evidentiary values.

5. The First Section may agree to hold meetings with the parties upon request of the parties when it considers it appropriate for the examination of the questions to be clarified in the case. During the meetings, the parties and interested third parties who have been involved in the proceedings may briefly state their arguments. There will be a view to the practice of testifying and expert evidence in what corresponds to its ratification.

The celebration of the hearing will be contradictory, and the parties, the interested parties and their representatives, the First Section and the support staff will be able to intervene. The participation of persons who, in the judgment of the First Section, may be required, may also be required, subject to notification of such circumstances. In addition, the First Section may ask the parties, the third parties concerned, who, if appropriate, to participate in it, in particular the reports submitted by the parties in support of their claims and the expert authors of the opinions contributed to the dossier

It is for the President of the First Section to address the meetings and the views and to maintain order in the course of the meeting.

6. The maximum time limit for the proposal, test practice, meetings and views shall be four months from the start of the procedure.

7. The conclusion of the views and the issues addressed in the course of the hearings shall be reflected in a record, without prejudice to its possible recording in audiovisual media, in which case it shall be made available to the parties.

8. After the testing has been completed, the First Section will assess in each case whether or not it requests a report from the public bodies carrying out their duties in relation to the markets or economic sectors to which the tariffs apply. In cases where the First Section agrees to request such a report, the public body shall issue it within one month of its receipt.

9. Prior to the drawing up of the motion for a resolution within a maximum of one month from the conclusion of the testing practice or 15 days in the event of a request for a report from the public bodies carrying out their duties in relation to the markets or economic sectors to which the tariffs affect, the First Section shall give the parties and the third parties concerned who have been persons in the proceedings before the parties concerned to draw up the conclusions on the result of the tests carried out, the reports received, where appropriate, from the public bodies; and on the tariffs to be fixed by the First Section. In such a procedure, the parties must ratify or modify their claims made in their written application and reply to it, by allowing the third parties concerned to be personified in the proceedings which formulate their claims and claims to the effect.

Article 24. Resolution.

1. Once the procedure has been instructed, within a maximum period of one month, the parties shall be notified of the reasoned motion for a resolution so that, within 10 days of the day following the notification, they may make the corresponding. It shall contain at least the background to the file, the facts accredited, the quantitative determination of the tariffs and the specific terms for making the file effective.

2. The reasoned decision terminating the procedure shall be adopted within a period of not more than one month from the receipt of the arguments to the reasoned motion for a resolution, shall contain the factual background and the relevant grounds of law, and determine the amount of the remuneration required for the use of works and other performance of the management institutions ' repertoire, the form of payment and the other conditions necessary to enable the rights to be applied. in accordance with the provisions of Article 158 a (3) of the text, the procedure laid down in Article 15b (3) Recast of the Law on Intellectual Property. The resolution shall also be notified to all parties and to the third parties concerned who have been in the proceedings within 10 days of their adoption and without prejudice to the treatment of confidential information which may be contained, shall be published in the Official Journal of the State and on the website of the Ministry of Education, Culture and Sport, and shall apply from the day following that of the publication, with a general scope for all the holders and their own management entities in respect of the same mode of operation of works and benefits and the same user sector. The decision shall be directly invoked in a judicial-administrative manner, in accordance with the provisions of Article 11.1.a) of Law 29/1998 of 13 July, regulating the Jurisdiction-Administrative Jurisdiction.

The resolution shall not affect the terms laid down in the agreements reached between management entities and users in use of the autonomy of their will.

3. The appeal against the decision of the First Section shall not suspend the enforcement of the decision.

4. The resolution shall not alter the legal-civil nature of the rights in respect of which the determination of tariffs and the other conditions necessary to make them effective are fixed.

Article 25. Conventional termination.

1. The First Section may, unless it appreciates reasons for opposing it, agree to terminate the proceedings by means of a conventional termination, at the request of the parties, when the parties reach an agreement on the whole of the questions concerned. examination in the administrative procedure.

2. To this end, the parties shall submit a joint proposal to the First Section within a maximum of 10 working days from the date of signature of the agreement. The first section will examine its content to verify that all the issues dealt with in the file are covered by the agreement of the parties and after hearing the third parties concerned for an unextended period of five years. days, will dictate resolution.

3. The resolution terminating the procedure by conventional termination will have the following minimum content:

a) Identification of the parts.

(b) Subject to the commitments made, including the duration of the agreement, the amount of the remuneration required for the use of works and other performance of the management institutions ' repertoire, the form of payment and the other conditions necessary for the effective enforcement of the rights to which the dispute arises in the proceedings.

4. The decision referred to in the preceding paragraph shall be published in the Official Journal of the State and on the website of the Ministry of Education, Culture and Sport and shall apply from the day following that of the publication, with a general scope for all holders and obliged, in respect of the same mode of exploitation of works and services and the same user sector. Such a decision shall be directly subject to administrative proceedings, in accordance with the provisions of Article 11 (1) (a) of Law 29/1998 of 13 July, regulating the Administrative-Administrative Jurisdiction.

Article 26. Payment of the fee.

1. Once the procedure for determining the rate of the standard resolution or termination has been completed, the corresponding fee shall be payable, the fee to be entered shall be the one resulting from the application of the following rates proportional to the the resulting amounts estimated for the application of tariffs by Section 1 under the terms of this paragraph, without prejudice to the minimum quantity of EUR 16,659,47 to be paid in those proceedings where the resulting amount estimated does not exceed the amount of EUR 16,659,470:

(a) From EUR 16,659,470,01 to EUR 100,000,000 for the application of the tariff determined by Section I, EUR 16,659,47 up to EUR 16,659,470 and 0,15% for the corresponding figure of the remaining quantity.

(b) From EUR 100,000,000,01 for the application of the tariff determined by the First Section, EUR 16,659,47 up to EUR 16,659,470, 0,15 per cent up to 100,000,000 and 0,2 per cent on the corresponding figure the remaining quantity.

2. The determination of the estimated resulting quantities for the application of tariffs shall be laid down in each procedure by the First Section, taking into account the estimated total annual figure equivalent to the exploitation of the rights which are the subject of the controversy, as well as the duration of the duration of the conventional resolution or agreement. For this purpose, account shall be taken of both the documentation submitted by the requesting party in its application and the documentation provided by the requested party. Where, in the case of the intervention of the First Section, the applicant or the requested party is an individual user, for the purposes of establishing the estimated total annual figure equivalent to the exploitation of the rights which are the subject of the dispute, the latter shall be limited. to which you derive from your own activity.

3. The payment of 50% of the amount of the fee due shall be the responsibility of the management entity whose rates are determined in the resolution and the remaining 50% shall be paid by the users who have been a party to the procedure.

Article 27. Resources.

The acts dictated by the First Section in the exercise of its duty to determine tariffs shall put an end to the administrative path which may be subject to the provision of a replacement for the First Section in accordance with Article 1 (1) of the Treaty. of the provisions of Article 123.1 of Law 39/2015 of 1 October of the Common Administrative Procedure of the Public Administrations, or being directly challenged before the administrative contentious jurisdiction, in accordance with the provisions of the Article 11 (1) (a) of Law 29/1998 of 13 July, regulating jurisdiction Administrative-administrative dispute.

CHAPTER VIII

The rate control procedure

Article 28. Start of the procedure.

1. The control procedure relating to the general tariffs laid down by the management entities provided for in Article 158a (4) of the recast of the Law on Intellectual Property shall always be initiated by the Section. First:

a) On your own initiative.

(b) By denunciation of the users of the register of management entities who are obliged to pay a general fee or, where appropriate, of the associations of which they form part, with the content indicated in the following paragraph.

2. The complaint shall be addressed to the First Section, by means of the official model set out in Annex V to this royal decree, and shall contain at least the following particulars:

(a) Name or social reason, address, telephone number and fax number of the complainants and, if they act by means of a representative, accreditation of the representation and address for the purposes of notifications.

b) Name or business name, address and, where applicable, telephone and fax number or any other relevant electronic means of the entity or management entities whose general rates are reported.

(c) Justification of the complainant of his status as a user of the register of management entities obliged to pay a general fee established by an entity or an association whose members are a user of the repertoire of the management entities and are obliged to the said payment, in order to be considered as such in the control procedure.

(d) Identification of the general rates whose control is intended to be carried out by the First Section, and the reasons for which it is considered to be inequitable or discriminatory should be argued.

The application must also be accompanied by a report justifying from a legal and economic point of view the reasons why the complainant considers that the general charges complained of are inequitable or discriminatory, assessing in it the application of the minimum criteria set out in article 157.1.b) of the recast text of the Law on Intellectual Property, and which may be attached to the evidence that it deems appropriate.

3. If the complaint does not meet the requirements set out in paragraph 2, the complainant shall be required to submit, within 10 days, the required documentation, indicating that, if he does not do so, the complainant shall be given the necessary information. withdrawal of the complaint.

4. The withdrawal of the complainant shall not prevent the First Section from acting on its own initiative of any action it considers necessary.

Article 29. Information requirement and non-initiation agreement.

1. Once the complaint has been analyzed or in those cases where the control function is exercised on its own initiative, the First Section may formulate information requirements to the management entity complained of, which may constitute the lack of attention to the same an infringement in accordance with the provisions of article 162 bis.4.a) of the recast text of the Law on Intellectual Property, which will be communicated to the competent sanctioning body.

2. In any event, prior to the adoption of an initiation agreement or not of the procedure, the First Section shall notify the management entity complained of and the defendant in the event that information was required, the proposal for an agreement for the submission of the claims and, where appropriate, provide the documentation that it deems appropriate.

3. The non-initiation agreement of the First Section procedure must be communicated to the complainant, giving succinctly to the reasons why the initiation of the procedure is not appropriate. Against that act, it will be a potential remedy for replacement to the First Section itself, in accordance with the provisions of Article 123.1 of Law 39/2015 of 1 October of the Common Administrative Procedure of Public Administrations.

Article 30. Referral of information to the National Markets and Competition Commission.

In cases where the First Section appreciates that the general tariffs do not comply with the criterion of equity and non-discrimination or when they do not meet the criteria laid down in Article 157.1.b) of the recast text of the Law on Intellectual Property, the First Section will communicate it and transmit the totality of the information collected to the National Commission of the Markets and the Competition, to the appropriate effects. No administrative appeal shall be brought against that decision.

Additional disposition first. A particularly significant user.

For the purpose of understanding a user as particularly significant in those proceedings before the Section I, which are affected by the said subject, the Section shall take into account, among other possible criteria, the percentage of the user's gross revenue in the total of the economic sector in which the rates to be determined are applicable.

Additional provision second. Application of Law No 30/1992 of 26 November of the Legal Regime of Public Administrations and of the Common Administrative Procedure.

As long as the Law 39/2015 of 1 October of the Common Administrative Procedure of the Public Administrations does not enter into force, and Law 40/2015, of 1 October, of Legal Regime of the Public Sector, will be applicable provisions corresponding to Law 30/1992 of 26 November 1992, of the Legal Regime of Public Administrations and of the Common Administrative Procedure, to the cases in which this royal decree refers to the foregoing.

Single transient arrangement. Members of the First Section of the Intellectual Property Commission.

Within one month of the entry into force of this royal decree, the members of the First Section will be appointed. As long as the section does not take place, it will be made up of the members who compose it on the date of entry into force of this royal decree.

Single repeal provision. Regulatory repeal.

The provisions of the same or lower rank which are contrary to the provisions of this royal decree and, in particular, Articles 2 to 12, both inclusive, of Royal Decree 1889/2011 of 30 December 2011, are repealed. regulates the operation of the Intellectual Property Commission.

Final disposition first. Competence title.

This royal decree is issued in accordance with the provisions of Article 149.1.9. of the Constitution, which attributes exclusive competence to the State on legislation on intellectual and industrial property. Chapters III, IV and V are exempted from the foregoing, which are given under the jurisdiction of procedural law which the Constitution grants to the State in its article 149.1.6

Final disposition second. Budget for the exercise of the Intellectual Property Commission.

The expenditure that can be generated by the implementation of the First Section of the Intellectual Property Commission will be taken up with the current means with which the Ministry of Education, Culture and Sport counts.

Final disposition third. Faculty of development.

The head of the Ministry of Education, Culture and Sport will be able to dictate how many development provisions are necessary for the implementation and implementation of this royal decree, as well as to modify, through ministerial order, the amounts referred to in Article 26.1 of this Regulation in accordance with the rules applicable to deindexation.

Final disposition fourth. Entry into force.

This royal decree will enter into force on the day following its publication in the "Official State Gazette".

Given in Madrid, on November 13, 2015.

FELIPE R.

The Vice President of the Government and Minister of the Presidency,

SORAYA SAENZ DE SANTAMARIA ANTON

ANNEX I

ANNEX II

ANNEX III

ANNEX IV

ANNEX V