The First Section of the Intellectual Property Commission (hereinafter “CPI”) has approved the new tariffs for free-to-air television operators for the public communication and reproduction of VEGAP’s works (paintings, sculptures, etc.).

A) Background:

The conflict arose from an alleged increase in the fee due by the Federation of Regional Radio and Television Organisations or Entities (“FORTA”) to VEGAP in 2016. Following a period of unsuccessful negotiations, FORTA decided to initiate proceedings before the CPI, in which multiple parties subsequently joined such as TELEFÓNICA, MEDIASET, ATRESMEDIA, AGEDI, AIE and SGAE.

B) Resolution of the CPI:

i. Quantification of the general tariff to be determined:

After rejecting, albeit with some clarifications, the tariff proposals of both parties, the CPI concludes that a new tariff had to be determined, taking into account the parameters of Article 164.3 of the TRLPI:

• The degree of effective use: given the multiple problems of measurement and the establishment of an adequate measurement, the usefulness of this criterion is very limited. In view of this situation: "it is not possible, at present, either technically or economically, to base a tariff for effective use on an exhaustive measurement, operator by operator, and also taking into account the variety of rights managed by VEGAP, of the number of uses of the VEGAP repertoire, without incurring risks of measurement bias and incorrect treatment of the limits on the exercise of the economic rights provided for in the TRLPI."
• The intensity and relevance of the use of the repertoire in the user's overall activity: is low.
• The amplitude of the repertoire of the management entity: is universal with respect to the right to simple remuneration under article 90.4 TRLPI, but more limited and difficult to measure with respect to exclusive rights.
• The income obtained by the user from the commercial exploitation of the repertoire: includes all income from advertising in all its forms (subsidies and public contributions intended to finance television activity, as well as income from subscription fees paid by subscribers to conditional access services provided by television operators whose main activity is free-to-air linear television). However, income unrelated to television activity (e.g., radio activities), financial income, and income from the sale or transfer of programmes shall not form part of the income base.
• The tariffs established by the management entity with other users for the same type of use: vary greatly depending on the bargaining power of each party, with large operators normally being more favoured.

For all the above reasons, the tariff to be applied is an average availability tariff (TDP) corresponding to 0.0199% of the average operating income obtained by the operator from its television activity.

ii. Special tariff for public TV operators:

In accordance with FORTA’s claims, the SPCPI also establishes a positive tariff discrimination on the basis of the second additional provision of Law 21/2014, insofar the requirements for its application are met:

1. The operator is a non-profit organisation.
2. It must have legally imposed obligations to promote culture and public service management.

In this case, the tariff to be applied will be a TDP of 0.0199% on 90% of the average operating income obtained by the operator from its television activity that complies.

C) Practical considerations:

The new tariffs are applicable only after 5^th July 2025, and they cannot be applied retroactively.

D) Conclusions:

This decision marks a turning point in the determination of fees for TV operators since it recognises the difficulty on the calculation of use of VEGAP’s works and the significant reduction in the fee to be paid.

It remains to be seen whether the factors set out in the decision accurately reflect market realities. In particular, the presumption on the budget split between radio and television (89.80% and 10.20%, respectively) used by the main national public broadcaster (Grupo RTVE) to other television operators—especially regional or even local channels—, instead of other medium operator data.