Battle Over Copyright Law Reform Heats Up in Spain

Ley de Economia Sostenible (Sustainable Economy Act) draws protests from music industry artists and workers trying to emphasize job losses as well as activists concerned the proposed legislation goes too far.

The copyright wars are heating up in Spain with news that the govt there is proposing legislation to increase protections for intellectual property on the Internet.

If you recall, it was back in 2006 that a judge ruled in a illegal downloading case that since there “no talk of money or any other compensation beyond the sharing of material available among various users [then] no offense meriting penal sanction has been committed.”

The courts made an even bolder move this past June when a judge ruled that illegal distribution requires something “tangible” to exist, like a website, and on which the actual sharing must occur. He said he recognized the possibility that unauthorized public communication, or distribution, of copyrighted material may have occurred, but that it’s difficult to prove being that it “may well be possible that the file-sharing was with one person.”

The Ley de Economia Sostenible (Sustainable Economy Act) would amend the Services of the Information Society and Royal Decree Law of 1996 by adding the revised text “protect intellectual property against Internet piracy.

According to the law’s text, the Culture Ministry will have the power to close websites accused of copyright infringement without a court order.

It reads:

Article 158. Commission on Intellectual Property.

Is created in the Ministry of Culture, the Commission on Intellectual Property as a body at national level, to exercise the functions of mediation and arbitration and safeguarding intellectual property rights assigned to this Law

ISPs would also be required to divulge the names and information of accused file-sharers, also without court order.

A group of activists is taking the text establishing an intellectual property commission particularly seriously, afraid it could silence speech and thought without benefit of trial.

“We’re left in legal uncertainty, if anyone can come and close your page for supposedly copyrighted photos uploaded by a third party, you are left very unprotected,” said Jesus Encinar, founder of Idealista.com.

Culture Minister Ángeles González-Sinde, a scriptwriter, film director, and former president of the Spanish Academy of Arts and Cinematographic Sciences, insists the average Internet user will be fine.

She said it “only aims at addressing the problem of illegal supply, and not the use that can make citizens of their freedom of this great medium of communication and Internet discussion is. The intellectual property committee proposed by the new law will act only upon request of a party who alleges that his copyright is being exploited by a page without permission.”

But, that still means power will reside with the govt by default and it will be up to individuals to prove their innocence rather than the govt to first prove guilt. For again, the process will be conducted via committee and not via the courts.

Opposition is growing to the legislation and has led a group of journalists, bloggers, Internet users, professionals and developers to express their concern that the law will affect the free exercise of freedom of expression, information, and the right of access to culture on the Internet

From their manifesto “In Defense of Fundamental Rights on the Internet“:

  1. Copyright should not be placed above citizens’ fundamental rights to privacy, security, presumption of innocence, effective judicial protection and freedom of expression.
  2. Suspension of fundamental rights is and must remain an exclusive competence of judges. This blueprint, contrary to the provisions of Article 20.5 of the Spanish Constitution, places in the hands of the executive the power to keep Spanish citizens from accessing certain websites.
  3. The proposed laws would create legal uncertainty across Spanish IT companies, damaging one of the few areas of development and future of our economy, hindering the creation of startups, introducing barriers to competition and slowing down its international projection.
  4. The proposed laws threaten creativity and hinder cultural development. The Internet and new technologies have democratized the creation and publication of all types of content, which no longer depends on an old small industry but on multiple and different sources.
  5. Authors, like all workers, are entitled to live out of their creative ideas, business models and activities linked to their creations. Trying to hold an obsolete industry with legislative changes is neither fair nor realistic. If their business model was based on controlling copies of any creation and this is not possible any more on the Internet, they should look for a new business model.
  6. We believe that cultural industries need modern, effective, credible and affordable alternatives to survive. They also need to adapt to new social practices.
  7. The Internet should be free and not have any interference from groups that seek to perpetuate obsolete business models and stop the free flow of human knowledge.
  8. We ask the Government to guarantee net neutrality in Spain, as it will act as a framework in which a sustainable economy may develop.
  9. We propose a real reform of intellectual property rights in order to ensure a society of knowledge, promote the public domain and limit abuses from copyright organizations.
  10. In a democracy, laws and their amendments should only be adopted after a timely public debate and consultation with all involved parties. Legislative changes affecting fundamental rights can only be made in a Constitutional law.

A group of these same people was able to hold court with González-Sinde yesterday where they asked her to explain the proposal a bit more in an effort to alleviate some of their fears. However, rather than finding comfort they left “disappointed” and “even more concerned than before.”

Journalist Ignacio Escolar even quipped “are you going to do Spain what’s happened in China?”

González-Sinde simply repeated her understanding that the law was intended to target suppliers of copyrighted material and not individual users, but many still left the meeting unconvinced.

Though not having endorsed the Sustainable Economy Act, members of Spain’s music sector took pains to demand greater copyright protection a few days ago in protests over their their industry’s job losses at the hands of piracy and illegal P2P.

“We have already lost too many thousands of jobs in the music sector while successive governments have looked on with indifference,” said Antonio Guisasola, president music label association Promusicae. “Now is the time to demand, through this industry ministry, that [this government] acts with decision and legislates adequately.”

He spoke of the need for a “peaceful revolution” in which music artists defend what it is theirs.

One rather naive singer/songwriter by the name of Aute even went so far as to claim that without such a draconian crackdown on P2P that in “five years this will all disappear,” that “there will be no songs nor music.”

Guess nobody’s told him that since the advent of P2P in 2000 the number of albums produced has more than doubled.

The truly sad thing is that the music industry will find this not to be the silver bullet they’ve been idly waiting for. Instead they will find people sharing content as they always have it will just take on different shapes and forms.

Stay tuned.

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