Background of the case


On 9 December 2019, an appeal was filed against the judgment of the Girona Commercial Court, which upheld the lawsuit filed by the General Society of Authors and Publishers (hereinafter the SGAE), the Association for the Management of Intellectual Rights (AGEDI) and the Artists, Performers and Executors Management Society of Spain (AIE). The ruling condemned the appellant, as the owner of the premises “Bar Inagua” to pay an amount of 4793, 78 euros for copyright, as a result of the reproduction in that premises of music protected by copyright managed by the aforementioned companies.


In the lawsuit, it is stated that, in the exercise of its activity of exploitation of the “Bar Inagua”, the appellant uses musical works managed by the SGAE, AGEDI and AIE, being these a fundamental element for the exploitation of the same, through an act of public communication.


The appellant claimed that the works used complied with the relevant regulations, since they used works from the “Jamendo” platform by paying a monthly fee for their use, also claiming the illegality of the general rates imposed by the applicants.


The decision


It is not up to the defendant to prove that no copyrighted musical works have been used, since the complexity of the burden of proof would be infinite. In any case, it is indicated that it is not a question for the collecting societies to prove that all the works used are under their repertoire, but rather that a minimum of evidence is required so that would distort the defendant’s claim. In short, it is not necessary to provide the list and contracts with the different authors to justify the legitimation, but it is necessary to demonstrate with what music the premises were livened up, which has not been the case.


A section has also been added concerning the management of rights through the “creative commons” and “copy left” licenses, since the defendant claims that all the music reproduced is made under this type of license. Well, what is relevant in this type of cases, in which the existence of “free music” is alleged, is the explicit authorization by the owner of the work, not only to be able to download the work, but also to communicate it publicly.


Taking into account the above reflections, and based on the evidence provided by the parties:


– The plaintiff is unable to prove the works that have been reproduced on the premises: the relevant documents for this are the inspection reports, and the contents of those do not mention the works used.


– The defendant provides a contract with Jamendo with three license certificates for the use of the works for a certain period.


Therefore, except for the period of time in which the defendant has not been able to prove the possession of the license with Jamendo, for the rest of the period claimed, it was up to the plaintiff to prove the use of the music protected by copyright. Therefore, the appeal is partially upheld, except for the period of time in which the plaintiff has not been able to prove the legitimate use of the musical works.


Judgment nº 1073/2020 of 7 September 2020, of Section nº 01 Civil of the Provincial Court of Girona.