(No. 479, of May 5, 1989) Enacting Provisions on the Composition and Operating Procedures of
the Arbitration Commission on Intellectual Property | ||
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Table of Contents | ||
pages | ||
CHAPTER I | General Provisions ...................................................................................... | 1 |
CHAPTER II | Composition of the Arbitration Commission on Intellectual Property ........ | 2 |
CHAPTER III | General Arbitration Procedure.................................................................... | 3 |
CHAPTER IV | Special Procedure........................................................................................ | 4 |
FINAL PROVISION | ..................................................................................................................... | 5 |
Article 143 of the Law on Intellectual Property, No. 22 of November 11, 1987, created at the Ministry of Culture, giving it the character of a collegiate body of national scope, the Arbitration Commission on Intellectual Property, the function of which is to settle any conflicts that may arise between administration entities and associations of users, or between such entities and broadcasting organizations, as a result of the collective management of intellectual property rights, with respect to the grant of non-exclusive authorizations, the conclusion of general contracts and the setting of general tariffs.
The Commission is thus made into a particularly suitable instrument, integrated in the current intellectual property system, for the settlement of this type of conflict, which generally calls for a complex assessment of relative interests.
For that reason, and in view of the fact that, according to the provisions of the same Article 143, two representatives of the administration entities and two more of the association of users or of the broadcasting organization are entitled to form part of the Commission for any issue involving them, a procedure has been devised and adopted whereby the parties are induced to reach an agreement which facilitates the making of the arbitral award.
In the light of the foregoing, on the proposal of the Minister of Culture, pursuant to the provisions of Article 143 and the Second Additional Provision of the Law on Intellectual Property, with the approval of the Minister for Public Administration, in agreement with the Council of State and following deliberation by the Council of Ministers on May 5, 1989,
WE HEREBY DECREE AS FOLLOWS:
General Provisions
Article 1.
The said functions shall include the solution of such conflicts as may arise as a result of the interpretation or general application of the standard contracts between such administration entities and associations of users or between such entities and broadcasting organizations.
Article 2. The provisions laid down in this Royal Decree shall be considered in all cases without prejudice to whatever the parties may agree in the relevant arbitral convention established under the Law on Arbitration, No. 36 of December 5, 1988, and no clauses shall be written into the said convention that are contrary to what is laid down in this provision or prevent the submission to the Arbitration Commission of any conflicts that may arise in connection with the provisions of Article 143(b) of the Law on Intellectual Property.
Article 3. The Arbitration Commission on Intellectual Property shall be governed by the Law on Intellectual Property and by this Royal Decree and, with regard to matters not covered by the aforesaid provisions, by the Law on Arbitration, No. 36 of December 5, 1988.
Composition of the Arbitration Commission on Intellectual Property
Article 4. The Arbitration Commission on Intellectual Property shall be composed of a maximum of seven members, three of whom shall be neutral arbitrators and permanent members.
The remaining members of the Commission shall be designated as representatives of the administration entity and of the association of users or of the broadcasting organizations for each of the cases submitted to it for settlement. Each of the parties to the conflict shall be entitled to nominate up to two members.
Article 5.
Article 6.
Article 7.
Article 8. An official of the Ministry of Culture shall act as Secretary without the power either to speak or to vote, and shall keep a record of the meetings that are held, of the agreements and decisions that are adopted and of any other acts decided upon by the members of the Commission.
General Arbitration Procedure
Article 9.
(4) The parties may act in their personal capacity or through a practising attorney.
Article 10.
Article 11. The arbitral procedure shall begin with the convening of the Commission so that the parties may establish their initial positions, and adduce such documentation as they may consider appropriate.
Article 12.
Article 13. When the positions of the parties have been established, the Chairman shall convene what meetings he considers consistent with the purpose of reaching such agreement between the said parties as will allow the conflict to be settled.
Article 14.
Article 15. Where in the course of the arbitral proceedings the parties reach an agreement on the questions at issue, those questions shall be set down in writing and submitted to the Chairman of the Commission so that the latter may draw up the appropriate award proposal, which shall then be put to the vote within the Commission.
Article 16.
Article 17. There shall be a quorum in the Commission when it is attended by a majority of its membership, provided that at least two arbitrators are present, and without prejudice to the provisions of Article 19.
Article 18.
Article 19.
Article 20.
(1) | The award shall be made within a maximum period of six months following recognition of the |
conflict. | |
(2) | The said period may only be extended by the Chairman, in a reasoned decision and after both |
parties have been heard, for a maximum of three months.
Special Procedure
Article 21. Where an association of users or a broadcasting organization makes use of the faculty provided for in Article 143(b) of the Law on Intellectual Property, for the purpose of setting an amount in lieu of the general tariffs laid down by an administration entity, the proceedings shall take place according to the provisions of this Royal Decree, subject to the reservations provided for in this Chapter.
Article 22. The request may be formulated by the association of users or the broadcasting organization, and it shall fulfill the following requirements:
Article 23. On being presented with the request, the Arbitration Commission shall convey it to the administration entity concerned so that the latter may make such statements as it considers appropriate regarding its acceptance, which it shall do within a period allowed it by the Chairman.
Article 24.
Article 25.
Article 26.
Article 27. The arbitral award settling the conflict shall require the attendance of all the arbitrators; it shall be pronounced in equity and shall be set down in writing and accompanied by a statement of reasons.
Article 28. Non-acceptance of the request or the arbitral award settling the conflict shall leave the way open to ordinary judicial actions for the hearing of the matter submitted to the Commission.
This Royal Decree shall enter into force on July 1, 1989.
Spanish title: Real Decreto por el que se regula la composición y el procedimiento de actuación de la Comisión Arbitral de Propiedad Intelectual.— WIPO translation. Entry into force: July 1, 1989. Source: Boletín Oficial del Estado, No. 112, of May 11, 1989.