Thejudgment of the Provincial Court of Madrid, 15 October 2018, provides an interesting example on the treatment of foreign law in cases referring intellectual property infringement before Spanish courts.
This case is related to the adaptation of a musical work without the rightholder’s authorization for its use in an advertising campaign. Having been condemned in first instance, the defendant appeals and invokes as a first ground, that the applicable law to the dispute was the UK Copyright Law and not the Spanish Law. Following Art. 281 LEC the plaintiff should accredit the content of UK Law. In its absence, the claim must be dismissed.
This motive of appeal raises two observations.
First, the burden to proof the content of a foreign law lies in the party who has an interest on its application. However, contrary to the appellant’s interpretation, there is a consolidated case law that states that the lack of accreditation of a foreign law does not entail the dismissal of the complaint.
Second, the reason for the appellant to sustain that UK Law is applicable to the dispute was that there was an agreement between the author of the musical work and the Company in charge of the exploitation of the rights in Spain that included a choice of that Law. The argument is regrettable for three reasons. Not being a party to that contract, the defendant could not be bound by the choice of the UK Law. The plaintiff sued for the non-contractual liability deriving from the infringement of copyright thus the applicable law should be determined in accordance with art. 8.1 Rome II Regulation. The application of this conflict of laws rule to the dispute entailed the application of Spanish law as the law of the country for which protection is claimed. Being this provision applicable to the dispute, it was not possible for the parties to choose the law applicable to the dispute since art. 8.3 bans choice of law for this category of actions.
While the reasoning of the court on this first issue is correct, the arguments related to the second ground of the appeal invoked by the appellant are not. According to the appellant, the Court incurred in incongruity when condemning the defendant for plagiarism since the claim of the plaintiff was based on an infringement of the right of adaptation. Once established the distinction between plagiarism and unauthorized adaptation, the Court upholds the motive of appeal of the appellant. The instance Court should have exclusively based its decision on the infringement of the right of adaptation. Since such right had not been transferred by the author to the Company in charge of exploiting copyright in Spain, the latter lacked legal standing to sue in the first place. Nonetheless, the reasoning of the Provincial Court is defective because it is based on the interpretation of the terms of the contract signed between the author and the Company in Spain in accordance with Spanish Law. Since that contract included a choice of UK Copyright Law, such interpretation must be made in accordance to that Law. Nevertheless, it was for the plaintiff to proof the content of that Law at this point. Having in mind the higher level of flexibility that exists in UK Copyright Law to interpret copyright contract, the results of the dispute might have been different for the plaintiff.