Porto, Portugal: Almedina. Intertax 46 International Tax Studies , European Taxation , Argumentum , Revista Direito e Desenvolvimento , Revista da Faculdade de Direito da Universidade do Porto , Estudios Financieros. Tributos Locales , Editorial activity. University Complutense Madrid Madrid, Spain. University of Salerno Fisciano, Italy. Discussant of the presentation done by Prof.
Taxation in an increasingly digital economy: critical analysis of the proposals of the OECD and of the European Union. PwC Portugal Faro, Portugal. Jean Monnet Chair of Prof. Taxation of Upstream Pipelines Co-supervisor. As amnistias fiscais como instrument de politica fiscal Co-supervisor. Executive organization of the Taxpayers conference Amsterdam, The Netherlands, Since , several meetings and events Also responsible for the screening and selection of the researchers Amsterdam The Netherlands , E-learning project: co-coordinator of the implementation of e-learning methods to the subjects of Tax Law II and II and to the postgraduate Studies in Tax Law - - Panel on Taxation and developing countries chaired a session with the following speakers: Svetislav Kostic, Carlos Weffe and Rita Szudoczky Conference.
Chair and speaker of the Panel on the taxation of the digital economy Congress. Co-Arbitrator; Moot Court Competition; IBFD and Leuven University edition, edition, edition, edition and edition : i co-arbitrator; ii executive organization; iii briefings with the judges; iv official secretary of the results responsible for all the computation ; v draft of Tax Treasury Hunt case, vi organization and assessment of the tax treasury hunt activities; vii draft of the cases; viii representation of IBFD at the opening and award ceremony Call.
Having to click and confirm every time could in some cases interfere with the use of the software In addition, the Open Source Definition opposes demanding explicit agreement with the license conditions with the aim of confirming the agreement between licensor and licensee The question is double: whether in these cases a valid license has be entered into, and what are the applicable terms.
The answer to the first question must be affirmative. The reason is that the user of a copyright protected work needs to be able to indicate the grounds on which she is authorised to use the work. This implies that everyone who wants to use software which they find via the internet, needs to actively look for a license. If the user cannot prove she has a license 57 , she must refrain from using it. Against this, the licensor would generally argue that, in the absence of proof to the contrary, the FOSS license conditions are the only terms under which he or she licenses the FOSS, and thus if the user now disagrees to any of the terms, then the licensor has granted no license to the licensee and any use of the software is thus a breach of copyright.
Furthermore, Spanish courts would look, in the professional sector, at the uses and customs in the sector to determine if sufficient opportunity was granted to read and accept the terms, and it is now fairly well established that free software licensing terms are available to be read in the source code or on the project website, and most software developers know and apply this custom.
Accordingly, as regards professional developers who are FOSS licensees, it would be very difficult to argue that there was no binding license between the parties, or that the terms are unknown As we have noted above, it is doubtful whether any user would benefit from disputing the existence of a FOSS license except with regard to disclaimers, for which see below.
If the user disputes the conclusion or validity of the FOSS license, this implies no legally valid copyright license was granted and the user therefore is not allowed to use the software at all. The rightsholder may take action in civil courts under both claims and due to the possibility of arguing against the existence or need for a contract, it would be recommended to sue on both grounds.
In addition, breach of copyright provides several interesting remedies, as noted above Typically, FOSS licenses contain very strong disclaimer clauses, which attempt to discharge the author from all liability Although this reasoning is certainly valid for the amateur programmer, it applies much less for professional programmers who build their business model around FOSS To cover the eventuality of being held liable for a warranty of title or quality, professional suppliers of FOSS or related services often provide guarantees and technical support Damages for wilful misconduct may not be excluded at all, and those caused by negligence are subject to review by the courts.
Liability under these provisions would apply both in the context of any problem with relation to title copyright in the code or quality of the software. In addition, with respect to quality, suppliers in a commercial relationship are liable to repair damages caused by hidden defects Article and Civil Code. However, between professionals, the law allows parties to regulate liability except for fraud, and even negligence may not be wholely excluded , for example limiting damages to the price paid for software or establishing a process for maintenance and bug correction.
In all circumstances, the courts will look at the balance of rights and obligations between the parties, in which case for FOSS significant weight may be given to the free gratis nature of FOSS, as well as the wide scope of rights granted to the licensee, as a balance against the wide disclaimers. It is doubtful whether, especially in relation to a consumer licensee, the exoneration clauses or disclaimers contained in FOSS licenses comply in full with the general validity requirements under Spanish law.
These requirements include that the clauses are not against the principle of good faith, do not upset the balance of obligations and rights between the parties, and are not subject to the unilateral discretion of one party the licensor. Thus it will depend on each circumstance whether the disclaimer clauses will be seen as valid or not: the drafting of the clause, the balance of the parties, the knowledge and experience of the licensee, etc.
It is also important to look at how the licensor presents the product differentiating, for example, system libraries or components, such as MySQL, and end-user products such as Firefox or the GIMP. For a product that is presented as finished and ready for use, the exoneration clause will be considered invalid much more easily, than for a product for which the licensor clearly formulated a reservation In so far the three aforementioned conditions have been complied with, exoneration provisions will be enforceable in principle, unless the stipulating party could be considered as a professional seller in a relationship with a consumer purchaser As mentioned above, professional sellers are required to repair hidden defects in the products they sell, except if the purchaser is a specialist in the sector, under article of the Spanish Civil Code.
Contractual provisions may modify this, if they are validly incorporated in the contract and not invalidated for other reasons see above, and in particular by consumer protection laws. If the hidden defects are known, and this state is not delcared to the purchaser, then the supplier will be liable not only to repair the defect but also for damages and interest In practice while this proof will be hard to provide through due diligence in testing, programming process and methdology, etc , as it is generally accepted that software is buggy and virtually impossible to make perfectly, the courts would take this into account.
Finally, these disclaimers will usually be held invalid with respect to consumer users, both due to the scope of the disclaimers being deemed abusive 68 and due to the fact that a consumer in Spain would not be expected to be able to understand a disclaimer in English language of most FOSS licenses and thus held not to be incorporated in the consumer contract. This argument is reinforced by the free gratis nature of most FOSS. Copyleft FOSS licenses 71 , in return for the use rights that are granted, require anyone who redistributes the copylefted software or any derivative works of it to third parties, to do so under the same license conditions.
Thus, usually it would not be legally possible to incorporate and redistribute copyright protected parts of copylefted software in a proprietary licensed work. It is argued that this copyleft principle can restrict the commercial use possibilities of the software Warnings have also been issued regarding the dangers that companies may run if a negligent or vindictive employee were to incorporate a piece of copyleft code in a proprietary software program. In theory this could mean that the company would be obliged to make its proprietary software available under a copyleft FOSS license or remove it from the market.
The sanction for incorporating copyleft code in proprietary software and distributing this under a closed or proprietary license will usually be restricted to a a prohibition to distribute the software whose license has been breached or b the obligation to remove this piece of code from the program. In addition, if the unlawful use has caused damage to the author e.
Sistema financiero global
But in all events it is unlikely the owner of the proprietary software would be obliged to release all its code under the copyleft FOSS license. The question relating to the validity of the copyleft clause coincides with the question whether a rightsholder is able to validly lay down the conditions under which derivative or composite works must be distributed. A derivative work can therefore only be exploited subject to the consent of the copyright owner of the original work Based on his copyrights a righsholder is thus able to lay down the use of his work for a particular use, or link certain conditions to this.
This right to determine the destined use or conditions of use of a work is clearly stated in the Copyright Act, in Article 43 The rightsholder can therefore lay down the copyleft condition based on these rights. All rights are subject to abuse, including copyright: contractual conditions must comply with mandatorily applicable laws such as consumer protection, data privacy, etc.
An author can therefore not randomly exercise his economic and moral rights. A legitimate moral interest could be that of wanting to keep the work within the FOSS community, including in modified form. It is argued that the copyleft provisions may only affect works to which the original rightsholder is granted rights to control: the original work, derivative works, and composite works incorporating the original work.
Copyright rights are not granted with respect of independent works not included in this list, and it may be considered an abuse of copyright rights trying to extend those conditions or provisions beyond that which the Copyright Law has permitted the author to control, including for example, works in the public domain, works not protected by copyright, and independent works e.
This is subject to limitations, of course. Competition law, for example, would prohibit certain forms of product bundling or restrictions on legitimate uses 79 , and consumer protection law would prohibit restrictions of imposing conditions on cerrtains forms of claims for redress or indemnities.
In addition, it has been argued that copyleft restrictions may run contrary to the Exhaustion principle with regard to the distribution right. Nevertheless this does not affect the right of the author to lay down certain conditions regarding the use of the intangible work on that copy. These actions include:. Legitimation for taking action is vested in the copyright holder or an exclusive licensee of the infringed copyright i. Non-exclusive licensees may not, however a third party e.
Only authors may claim for breach of moral rights. Proceedings are taken before the Civil Courts, in accordance with the standard procedures of the Civil Procedure While the principles of international private law applicable to software applicable in Spain as in any other EU jurisdiction may complicate the question as to where a case may be brought, Spanish courts follow EU Regulations in the matter Brussels and Rome I and II Regulations Depending on the cause of action taken IPR breach, contractual breach and the nature and domiciles of the parties, the courts and applicable law may vary.
The same sanction is given to those who would import, export or stock copies of works without authorisation, and those who manufacture, import or deal in any device specifically aimed to supress or neutralise technological protection measures applied to protect software or other protected works. Damage caused by copyright violations are compensated under Spanish law in accordance with the Articles and Copyright Act, and generally applicable principles of law relating to unlawful acts extracontractual infringements and breaches of contract According to the specific provisions of Article of the Copyright Act, an injured party of a copyright breach may request compensation for the loss actually suffered and profits that were not gained.
Dual damages, triple damages or other forms of punitive or special damages are not awarded under Spanish law. Costs spent on tracing and prosecuting infringements may also be compensated 87 and authors, when involved may also claim for breach of moral rights, giving rise to further damages. Infringements of software copyrights follow the same regime as infringements of every other copyright The aforementioned principle is therefore applicable in case of copyright infringements of software.
Infringements of copyright protected software distributed under a FOSS license would be sanctioned in the same manner including provisional and precautionary measures such as seizure of infringing works, interlocutory injunctions, etc. Subject: European Environment Agency report: revenue from new environmental measures. Subject: Letter from the Commission to the Spanish Government regarding autonomous community legislation designed to ensure housing fulfils its social function.
Subject: Consequences of recapitalising banks by using the deposits of legal persons. Subject: Animal transport — unloading facilities and control posts. Subject: Animal welfare standards for investment capital granted to livestock operations. Subject: Need for measures to strengthen European tourism.
Subject: Authorisation of oil prospecting in the Canary Islands. Subject: Concentration and monopolisation of agricultural land in Europe. Subject: Economic redundancies in the Cobral factory in Lorient France. Subject: Elephants killed by poachers in the Central African Republic. Subject: Charter flights to illegal Ercan airport. Subject: Lack of targeted EU aid to the food-processing industry.
Subject: Death of a Senegalese citizen in Spain after being refused healthcare. Subject: Promotion of health tourism in the European Union. Subject: Possible agroterrorist attacks in Europe. Subject: Increase in European Investment Bank loans for motorways.
Subject: Legal protection of wilderness in Europe. Subject: Conclusions drawn from the fact that the profits of cybercrime vastly exceed the losses. Subject: Threat to genealogical research posed by the EU's new data protection legislation. Subject: Forced marriages between Syrian refugees and Jordanian nationals.
Subject: Further episodes of discrimination against Christians in Libya. Subject: Secessionist municipalities in the Veneto region and governance in Europe. Subject: European Neighbourhood Policy with Armenia. Subject: Limiting European steel production, closure of industrial sites, incentive towards carbon leakage and possible violation of European competition law. Subject: New coronavirus and measures to combat it.
Subject: European Neighbourhood Policy with Libya. Subject: European Neighbourhood Policy with Belarus.go
La evaluación en los estudios de traducción
Subject: Fund for European aid to the most deprived. Subject: Cross-Member State recovery of compensation. Subject: Export subsidies for Turkish aquaculture products. Subject: Financing of households and undertakings in southern Europe.
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