SPAIN Trends and Developments Contributed by: Rafael Mateu de Ros and Patricia Fernández Lorenzo, Ramón y Cajal Abogados
provides for the seizure of the item, which automati - cally becomes state property, as well as fines. If the cultural good is valued at more than EUR50,000, the operation is classified as smuggling, with penalties ranging from one to five years in prison and fines from one to six times the value of the item, in addition to its expropriation without compensation. AML policies The prevention of money laundering and terrorist financing is regulated under Law No 10/2010, which has included art and antiquities dealers as parties obligated to comply with these regulations when sell - ing items valued at EUR1,000 or more. The transposi - tion of the EU’s Fifth AML Directive into Spanish law broadened the scope to include intermediaries in the art and antiquities markets, as well as professionals engaged in trade within freeports. However, contrary to initial expectations, Spain maintained a threshold of EUR1,000 – rather than the EUR10,000 threshold specified by the EU – for compliance with due dili - gence obligations. This creates greater obligations for Spanish art intermediaries compared to their Euro - pean counterparts, requiring due diligence for sales under EUR10,000, which are of lower value. Copyright infringement Copyright infringement in Spain is regulated by the Intellectual Property Law, which provides for compensation for damage based on the economic consequences for the author of the infringement. Unauthorised reproduction, distribution or public communication of a work with the intent to obtain an economic benefit constitutes a crime, punishable by fines and imprisonment for six months to four years under the Criminal Code. On 4 November 2021, the Intellectual Property Law was amended to transpose EU Directives 2019/789 and 2019/790 concerning copyright and related rights in the digital single market into Spanish law. Notably, Article 48 bis now permits authors to terminate the authorisation or assignment of their economic rights if those rights are not exploit - ed by the assignee for more than five years. A significant ruling in this area is Ruling No 776/2022 from the Juzgado de lo Mercantil No 9 of Barcelona (dated 11 January 2024), in the case of VEGAP ( Vis- ual Entidad de Gestión de Artistas Plásticos ) against
Mango. This case, which marks the first Spanish court ruling on copyright in the context of NFTs, involved the alleged unauthorised use by Mango of artworks by Spanish visual artists such as Joan Miró, Antoni Tàpies, and Miquel Barceló through NFTs for the inau - guration of its Fifth Avenue store in New York. The court ruled that there was no infringement of moral rights, as these rights had been exhausted after the first public exhibition of the artworks in the 1970s, 1980s and 1990s. As for economic rights, the court ruled that the NFTs represented new works with their own originality and applied the “fair use” doctrine, finding Mango’s use legitimate for a non-profit event that did not harm the spirit of the works. Trusts, foundations and estates Foundations (charities) serve as a useful structure for the ownership or management of art collections in Spain. They are governed by the Law on Foundations at the national level and by regional laws in each of the 17 autonomous communities. The Law on Incentives for Patronage provides tax exemptions that benefit foundations holding artwork. On 20 December 2023, a reform of the Law on Incen - tives for Patronage was published, effective from 1 January 2024. This reform aims to improve conditions for donations and collaboration between non-profit entities and donors (both individuals and corpora - tions). Key changes for the cultural sector include an increase in tax deductions from 35% to 40%, as well as a rise in the deduction base for crowdfunding from EUR150 to EUR250. Additionally, the law now includes a new type of deductible collaboration (ie, the transfer of movable or immovable property to a non- profit entity) and allows the provision of services and in-kind aid as deductible donations for tax purposes. However, the incentives remain limited compared to those in other European countries and fail to generate a positive effect on artistic patronage. In conclusion The regulations governing the Spanish art and antiqui - ties market are among the most restrictive in Europe, particularly in terms of export licensing. They are unique in that they impose an export tax on cultural goods destined for third countries. Despite long- standing requests for reform from the cultural sector,
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