Spain's Proposed Intellectual Property Law Finds Little Support
Despite desperate pleas from the content rights holders for a new legislative framework to fight Spain's unbridled piracy, no one from the sector is pleased with the proposed legislation.
MADRID – When Spanish producer Agustin Almodovar picked up the Gold Medallion awarded by the Spanish rights holders entity EGEDA last week at the XIX Forque Awards, he used the moment to lambast Spain’s present juridical and legislative frameworks that make producers’ rights impossible to protect.
“Producers don’t need sponsors, just an appropriate, coherent and safe juridical and financial framework to attract external investors,” Almodovar said with Spain’s Culture Minister Jose Ignacio Wert in attendance.
Almodovar’s words couldn’t be more timely.
This month, Spain is set to approve an intellectual property law that has only stirred controversy, with the content rights holders, European Union and governmental advisers warning that it will open a can of worms.
There are three controversial sections to the bill: private copy, piracy and the system of collective rights management.
Spain was forced to remove its so-called digital canon—which generated a reported €90 million ($122.1 million)-- when European and Spanish courts ruled it illegal and indiscriminate.
The government replaced it with €5 million ($6.8 million) earmarked in the general budget for compensating rights holders. Intellectual property entities say the government has determined the actual figure should be €18 million ($24.4 million).
Regardless of the figures, though, just last month, Spain’s State Counsel, which acts as the utmost adviser of the government, called on the government to review in its entirety the bill, specifically citing the private copy section, saying it “presents elements that are questionably in keeping with European law” and that private copy “could create numerous illegal habits in the Spanish society that are related to the copy of protected works.”
Additionally, the counsel said the budget credits are limited, which means that it would require “fixing an amount in the general budgets to compensate the equivalent of damage, which would not reach the adequate levels of compensation demanded by European law, when applying some of the modifying mechanisms of the budget credits … like transfers, extraordinary credits or supplements.”
Additionally, the Spanish government is looking to reform the penal code to make penalties stiffer for links to illegal content.
However, much to the dismay of critics such as Antonio Fernandez, the general manager of the Association for the Defense of Intellectual Property, who say the government is favoring the big boys like Google and other aggregators.
The reform “conveniently doesn’t attack [them], because it leaves aggregators absolutely out,” Fernandez said in an interview with El Mundo. “In no way are we saying that this government isn’t concerned about culture. The only thing is that there are many prejudices that are conditioning its policies and that come, in many cases, from misinformation.”
The most recent figures from an independent study requested by the Coalition of Creators shows 84 percent of digital content downloads in Spain are illegal, worth an estimated €15 billion ($20 billion) to the content industries.
According to the Coalition’s General Manager Carlota Navarrete, the vague wording of the bill along with the fact that the bill turns a blind eye to the infractions caused by links and webpages, makes it useless.
“The fact that it doesn’t see links as part of the formula for infringing on rights, makes it clear that it won’t work,” Navarrete said. “If what they really want to do is to improve the instruments to be able to fight against piracy, then it needs to include some key improvements.”
At the top of the list of improvements for Navarrete?
The ability to block or close webpages once they have been detected and reported and that the wording of the law is clear.
The wording is actually one of the biggest complaints—and was highlighted by the Counsel in its December report, which called it “vague” and “ambiguous.”
One example is the fact that the definition of whether a link infringes on rights depends on the volume of access to the link or page.
“What is a lot? What is enough? Who decides what is a lot? Damage is considered damage above what level of access,” asks Navarrete. “If I don’t know what is the required level, how do I know if it is reportable. I have no way of knowing the requirements.”
Additionally, the rights holders want an independent committee to supervise the situation.
The rights holders have a strong ally in the U.S. Ambassador to Spain, James Costos, whose role as an HBO executive has made him particularly outspoken on piracy in Spain.
“Innovation cannot flourish without a legal framework to protect the works of creators. However, combating piracy requires more than just law enforcement. Along with an effective legal system, it requires educated consumers and convenient access to legal content,” the ambassador said last month at Spain’s Third Annual Intellectual Property Conference.
“We appreciate Spain’s commitment to making changes that will create a more IPR-friendly environment, one able to address emerging copyright, trademark, and patent infringement concerns,” he said.
To support Spain’s efforts, the United States is drafting a "memorandum of understanding" between the two governments to facilitate information sharing in intellectual property cases. Ambassador Costos has said that the United States looks forward to more of this collaboration with the Spanish government, and to the growing cooperation between American and Spanish businesses in the entertainment, digital economy, and healthcare sectors in the coming years. “By working together to build a strong IPR framework that not only protects rights but embraces the new possibilities created by technology, the United States and Spain can promote innovation, entrepreneurship, jobs, and growth in both our countries.”
At the moment, the bill is set to go before the cabinet in the coming weeks. Time will tell if the government will go forward with the present form of the bill or heed warnings and rewrite the bill into a stronger took to fight piracy and illegal downloads in Spain.