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Royal Decree 635/2015, 10 July, Which Regulates The Legal Deposit Of Online Publications.

Original Language Title: Real Decreto 635/2015, de 10 de julio, por el que se regula el depósito legal de las publicaciones en línea.

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TEXT

Law 23/2011, of July 29, of Legal Deposit, establishes in the final disposition third that within the maximum period of one year the Government, on a proposal from the holder of the Ministry of Culture, today Ministry of Education, Culture and Sport, will regulate by royal decree and in the field of its competences, heard the autonomous communities and the sectors involved, the procedure of management of the deposit of the electronic publications.

Electronic publications, both those that are edited in tangible support and those distributed online, have led to a change in the concept of the document itself. Some publications, such as e-books, have characteristics similar to those of paper books; instead, in other types of resources, especially in sound, the documentary unit has evolved from a set of pieces published in a single tangible support to the presentation and offer through the data networks of each of the individual pieces. On the other hand, new resources have also been born, the result of the possibilities opened by the Internet world.

The preamble of Law 23/2011, of July 29, recognizes that the forms of intellectual and artistic expression have evolved, new means of publication have been created and today electronic publications are part of the Bibliographic and documentary heritage of the different countries, making it essential to review the regulations on legal deposit. For this reason, Law 23/2011, of July 29, includes in article 4.3, letters n) and n), electronic publications and websites as publications object of legal deposit.

With respect to the fulfilment of this deposit obligation, which Article 8 of Law 23/2011, of July 29, attributes to its publisher or producer, it should be noted that the procedures for the identification and collection of this property they must be adapted to the characteristics of the new types of publications and to the conservation and dissemination needs they pose. At the same time, account must be taken of the means and resources available to the required subjects, in order to facilitate the establishment of the deposit of online publications and to ensure security in the transfer of data to the of the entire process, while respecting the intellectual property law. The Law 23/2011, of July 29, uses the expression "without tangible physical support" in contrast to those "with tangible support". This royal decree uses the expression "online" to refer to publications without tangible physical support, thus employing the most common term in the world of electronic publications.

The entire process of constitution and management of the legal deposit of online publications will be subject to the principles laid down in Law 19/2013, of December 9, of transparency, access to public information and good government, in particular with regard to active advertising in the field of institutional, organisational and planning information.

This royal decree is structured in three chapters dealing respectively with the general provisions, the obligation of the legal deposit and the procedure for the management of online publications. It consists of 11 articles, two additional provisions and three final provisions.

Chapter I states that the object of this royal decree is to regulate the procedure for the management of the deposit of the websites and the resources contained therein and in article 1.2 it is specified that the legal regime of the The deposit of electronic publications in tangible physical support is already regulated by Law 23/2011 of July 29, without prejudice to the competencies of the Autonomous Communities.

Likewise, regardless of the power of the autonomous communities, to manage the legal deposit of online publications, to guarantee the unity of the system, territorial cohesion, the proper exchange of information and maximum use of the available resources, the actions relating to the legal deposit of the online publications will be coordinated within the framework of the Council of Librarian Cooperation to be the collegiate body of composition interadministration which channels library cooperation between administrations public, as provided for in Article 15 (2) of Law 20/2007, of 22 June, of the reading, the book and the libraries.

The electronic publications in tangible support have, from the point of view of the legal deposit, the same characteristics as the publications in support of paper and therefore already established in Law 23/2011, of 29 of July, who are the subjects required to apply for the number of legal deposit and to constitute their deposit.

Chapter II specifies which online resources are the subject of legal deposit and which are exempt from this obligation, while fixing who are the subjects required to constitute such a deposit, in full respect of the data protection legislation.

Chapter III includes the regulation of the management and constitution of the legal deposit of online publications. The actions taken pursuant to this chapter do not confer any intellectual property rights or legitimize such publications.

Due to the complexity of the treatment of online resources, this royal decree simplifies its management procedure. It almost completely eliminates the role of legal deposit offices in the management of the deposit of these publications, including the allocation of legal deposit number, thereby reducing the management burden of those responsible for the constitution. of the tank. In this area, the legal deposit offices are solely responsible for the performance in case of non-compliance with the obligation of this royal decree, in accordance with the provisions of article 15 of Law 23/2011 of July 29, and according to the autonomic rules that apply. On the other hand, this simplification of management means that the obligations of the publishers or producers of the websites in open access are null, and few and of easy compliance in the case of the websites of the contents of the access restricted.

This royal decree has been submitted to the autonomous communities, the Ministry of Finance and Public Administrations, the Spanish Data Protection Agency, organizations and associations whose aims are direct relationship with the object of the standard and of the Librarian Cooperation Council.

In its virtue, on the proposal of the Minister of Education, Culture and Sport, with the prior approval of the Minister of Finance and Public Administrations, in agreement with the Council of State and after deliberation of the Council of Ministers at their meeting on July 10, 2015,

DISPONGO:

CHAPTER I

General provisions

Article 1. Object.

1. This royal decree aims to regulate the procedure for the management and constitution of the legal deposit of online publications, in order to fulfill the duty to preserve the bibliographic, sound, visual, audiovisual and digital of the cultures of Spain in every historical moment and allow access to it for cultural, research or information purposes, in accordance with the provisions of Law 23/2011, of July 29, of legal deposit, as well as in the legislation on data protection and intellectual property.

Online publications are part of the documentary and bibliographic heritage, in accordance with the provisions of Articles 48 et seq. of Law 16/1985 of 25 June of the Spanish Historical Heritage.

2. The legal deposit of the electronic publications in tangible support, including the application for the legal deposit number and the legal deposit, shall be governed by the provisions of Law 23/2011 of 29 July, without prejudice to the powers of the of the Autonomous Communities.

3. The repository of a same publication in tangible support does not exempt the repository from the same online.

Article 2. Definitions.

For the purposes of this royal decree, it is understood by:

a) Capture: Identification and collection of websites from the use of computer programs that carry out a process of tracking links in order to archive the content that makes up a web resource determined.

b) Deposit: Storage of contents captured by or transferred to conservation centers, in a repository that ensures long-term preservation and access by users within limits established by the legislation on intellectual property.

(c) Editor or producer of a website: the natural or legal person who holds the domain where the website is hosted or, where appropriate, the natural or legal person to whom the domain holder has validly transferred and with a total character the right to the use, management and exploitation of the website, and in particular the decision on the content hosted or accessible on the site.

d) Office of legal deposit: Depositary Center.

e) Online publication: Information or content of any nature disseminated on a non-tangible electronic medium, archived in a given format and capable of identification and differentiated treatment, which is the subject of dissemination. Websites are considered online publications.

f) Resource: Entity, tangible or intangible, that collects intellectual, artistic or other content and is conceived, produced or edited as a unit.

g) Private network: Aquella that uses an address space without direct connection to or from the Internet, so they do not appear on the public network. Serves to connect teams from an organization (intranet) or multiple organizations (extranet).

h) Secure repository: Digital conservation platform that meets the requirements of international technical standards for auditing and certification of the reliability of repositories.

i) Website: An electronic access point made up of one or more pages grouped into an Internet domain.

j) Web site freely accessible: The one who has a public URL and is therefore visible to all Internet users.

k) Non-tangible support: Virtual support for a work or content disseminated through electronic networks.

l) Tangible support: Physical support for a work or content.

CHAPTER II

From the obligation of the legal deposit of online publications

Article 3. Online publications object of legal deposit.

They will be the subject of legal deposit, along with the metadata they include, all types of websites and the publications contained in them-both free and restricted-whatever the production process, editing or broadcast; whatever the medium or non-tangible medium by which they are distributed or communicated; whatever the physical location of the server or servers from which they are distributed to electronic networks; and the domain hosting the publication, provided they contain bibliographic heritage, sound, visual, audiovisual or digital of the cultures of Spain; and provided that they meet one of the following conditions:

a) That they are in any of the official Spanish languages;

b) That are produced or edited by any natural or legal person who has his domicile, residence or permanent establishment in Spain;

c) That they are produced or edited under a domain name linked to the Spanish territory.

Also, the legal deposit will include any other form, present or future, of electronic content disseminated through communication networks.

Article 4. Online publications excluded from legal deposit.

Without prejudice to the exclusions referred to in Article 5 of Law 23/2011, of July 29, the following online publications will not be the subject of legal deposit:

a) Mails and private correspondence.

b) Content that is hosted only on a private network.

c) Personal data files that only have access to a restricted group of people.

Article 5. Subjects required to allow the legal deposit of online publications.

The publisher or producer of the web site where the online publications are housed shall be required to facilitate the legal deposit of the same in accordance with Articles 7 and 8.

CHAPTER III

Management procedure and constitution of the legal repository for online publications

Article 6. Managing the legal deposit of online publications.

1. The managers of the legal deposit of online publications are the conservation centers. According to Article 9.2 of Law 23/2011, of July 29, the National Library of Spain and those that determine the Autonomous Communities in the field of their competences are conservation centers.

2. The conservation centres, in accordance with the purpose of this royal decree, as set out in Article 1, shall determine which websites and which resources are to be captured or deposited in order to be preserved and thus facilitate their consultation, respecting the legislation on the protection of personal data and intellectual property, and following the criterion of achieving the best representativeness of the Internet world and of obtaining the most complete collection of publications possible such as e-books and journals.

3. The storage centres shall communicate to the depositary centre where the publisher or producer has their domicile, residence or permanent establishment, the non-compliance with the obligations of the subject of the deposit of online publications by the persons concerned. (a) to the effect that the depositary establishment undertakes to carry out the control and verification of compliance with the obligations relating to the legal deposit which it carries out, and, where appropriate, to exercise the power of sanction in accordance with the provisions of the established in Chapter V of Law 23/2011 of 29 July, as well as in the autonomous rules that is applicable.

The rightholders of the rights recognized in this royal decree may exercise them in accordance with Law 30/1992, of November 26, of the Legal Regime of Public Administrations and of the Common Administrative Procedure, as well as the other applicable rules.

4. No legal deposit number will be assigned to online publications. In accordance with Article 14.6 of Law 23/2011 of 29 July, publishers or producers of online publications may apply for an ISBN number ("International Standard Book Number") or other standard numerical identifier accepted by the competent international.

Article 7. Legal deposit of freely accessible online publications.

1. Conservation centres shall be able to capture online publications that have been the subject of public communication and websites accessible through communications networks.

2. In order to facilitate the capture or storage of data by conservation centres, the publisher or producer of websites and other freely accessible online publications will allow the conservation centres to proceed to their collection under the conditions indicated in this article.

3. Without prejudice to the second additional provision, the procedures for the selection and capture of online publications accessible through communications networks, as well as the frequency with which such catches will be made, be established, within their respective fields of competence, by the Spanish National Library, state-wide conservation center, and by the conservation centers of the autonomous communities.

Article 8. Legal deposit of restricted access online publications.

1. The publisher or producer of websites and other online publications of restricted access will be obliged to facilitate the collection of the same, providing in their case to the conservation centers the keys that allow the access and reproduction of the totality of the content or websites, or to provide their transfer through communication networks or other support

2. The publisher or producer must provide the means for any online publication, detected and captured in accordance with the provisions of the previous paragraph, to be consulted and reproduced in the future without the need for the introduction of key to your consultation or conservation. In addition, the publisher or producer of online publications, whose use is limited in time, should provide the conservation centres with the necessary means or keys to ensure that such publications can be consulted in a manner permanent.

3. Where technological or other reasons so advise, conservation centres may require the publisher or producer to deliver, through electronic networks, the resources which are the subject of legal deposit in the formats in which they are edited.

4. Compliance with these obligations shall not prejudice the legitimate interests of rightholders, nor may they conflict with the commercial exploitation they make of such material.

In no case shall compliance with the provisions of this article be liable to the publishers or producers to be an additional economic burden to the directly derived from the mere making available of the contents and websites which allow compliance with the legal obligation to deposit the online publications.

Article 9. Conservation and access of online publications.

1. Conservation centres will be responsible for the preservation of online publications whose custody they are entrusted with.

2. The National Library of Spain and the conservation centres of the autonomous communities, in their respective fields of competence, may agree to the constitution of the repositories they deem necessary to preserve and disseminate the online publications captured or delivered, with the aim of achieving greater efficiency in their management.

3. Where the repositories referred to in the previous paragraph include restricted access resources, the users ' consultation shall be carried out only from the terminals installed at the premises of the Library. National of Spain and the conservation centres of the autonomous communities, respecting the legislation on the protection of personal data and intellectual property.

4. According to article 37.1 of the recast text of the Law on Intellectual Property, approved by Royal Legislative Decree 1/1996 of 12 April, conservation centers will be able to reproduce, reformat, regenerate and transfer resources to ensuring their conservation, in compliance with intellectual property law; rightholders on works or benefits protected by effective technological measures should provide information and information centres to the conservation centres; adequate means to ensure that the reproductions of those resources are carried out.

Required subjects will be responsible for providing information that allows data from the original support to be transferred to the conservation support.

5. The documentation generated in the management of the legal deposit of the online publications will be treated in accordance with the principles established in the Royal Decree 4/2010, of 8 January, which regulates the National Interoperability Scheme in the the scope of the Electronic Administration and the Technical Standards for Interoperability to be applied to it. Likewise, the entire process of managing the legal deposit of these publications will be subject to the principles laid down in Law 19/2013, of December 9, of transparency, access to public information and good governance.

Article 10. Collaboration in the conservation of online publications.

1. The National Library of Spain and the conservation centres designated by the Autonomous Communities may establish collaboration agreements with those public or private entities that have the online distribution platforms of the publications and digital resources, which they themselves edit or produce, and which are regarded as "safe repositories", for conservation purposes, provided that these platforms meet the requirements necessary to carry out such a function, the criteria laid down by the conservation centres and under their supervision.

2. Agreements to be concluded between conservation centres and public or private entities which maintain these platforms shall include, inter alia, the following:

a) The features of the contributing entity repository.

b) The procedures for the conservation of the publications or resources of the contributing entity.

c) The duration of the collaboration.

3. Where, pursuant to the above paragraph, a collaboration agreement is established with an entity, the conservation centre shall not capture the resources of that entity, and shall be obliged to keep the publications and resources, as well as to maintain the active platform under the conditions stipulated during the period of validity of the agreement. The contributing entity shall facilitate access to its resources under the same conditions as those established for conservation centres.

4. In case of disappearance for any cause of the public or private entities referred to in the previous paragraphs or that they cease to comply with the conditions that previously made possible the agreement of collaboration, the resources in line retained in those entities shall be delivered to the conservation centre stipulated in the agreement.

5. Also, as soon as circumstances arise which make it impossible to comply with the conservation and consultation commitments acquired by those entities, they must comply with the obligation of the legal deposit, as stipulates in Article 7.

6. The National Library of Spain and the conservation centres of the Autonomous Communities shall keep up-to-date the relationship of those distribution platforms which agree to cooperate as safe repositories of the legal deposit, specifying what are the characteristics of your repository, what resources will be retained by the collaborating entity, as well as the period of validity of the collaboration.

Article 11. Identification of the domains by the entities responsible for their management and the registrars.

The entities responsible for the management of the registry of Internet domain names established in Spanish territory will provide the National Library of Spain and the conservation centers of the Autonomous Communities the domain names registered with them, at the request of those conservation centres.

Likewise, natural or legal persons acting as domain name registrars will provide the same information regarding domains linked to the national territory that are not included in any of the the records established in Spain referred to in the preceding paragraph.

Additional disposition first. No increase in public spending.

This royal decree will not be able to assume a net increase of public expenditure and its functioning will have to be carried out with the material and personal means currently available in the Administration, without increase of remuneration, or other personnel costs.

Additional provision second. Collaboration between conservation centers.

The Spanish National Library and the conservation centres designated by the Autonomous Communities will establish the necessary means of collaboration to:

(a) Avoid, in accordance with the provisions of Law 20/2013, of 19 December, the guarantee of the market unit, the imposition of unnecessary or duplicate administrative burdens by those obliged to permit the legal deposit of online publications.

b) Ensuring that the administrative burdens imposed do not cost the publishers and producers of online publications.

c) Establish common policies for the capture of content and the development of collections, in order to comply with the legal deposit obligations of the online publications provided for in this royal decree.

Final disposition first. Competence title.

This royal decree is issued under Article 149.2 of the Spanish Constitution, which states that, without prejudice to the powers that the Autonomous Communities may assume, the State shall consider the service of the culture as a duty and essential attribution, and facilitate cultural communication between the autonomous communities, according to them.

Final disposition second. Regulatory enablement.

It is for the holder of the Ministry of Education, Culture and Sport to dictate, within the scope of their competences, the provisions that may be necessary for the development and application of this royal decree.

Final disposition third. Entry into force.

This royal decree will enter into force three months after its publication in the "Official Gazette of the State".

Given in Madrid, July 10, 2015.

FELIPE R.

The Minister of Education, Culture and Sport,

INIGO MÉNDEZ DE VIGO Y MONTINJO