Spain was historically home to sensible copyright enforcement – balancing the needs of creators against users’ innovative approaches to sharing through new technology. But pressure from the U.S. government to enact intellectual property enforcement has jeopardized Spain's pragmatic approach.
The Spanish Congress enacted copyright enforcement provisions in 2011 as part of a larger economic modernization act. The proposals create a fast-track method for removing would-be infringing content from the Internet. ISPs are incentivized to block access to infringing content as soon as it is reported, thereby avoiding further hassle related to the quick procedures.
The good news is that the legislation does not require ISPs to adopt Three Strikes Internet disconnection of individuals. However, the bad news is that it follows the recent trend of imposing obligations on Internet intermediaries to block content and raises concerns for user privacy.
Even as the copyright laws in Spain threaten digital rights, Spanish courts are taking affirmative steps to narrow copyright enforcement. In particular, a recent ruling by a top Spanish court indicates that the judicial branch is not inclined to hold websites that host links to copyright-infringing materials liable for violating copyright law. This contradicts efforts of the executive branch and the U.S. government to enforce intermediary liability through overbroad copyright legislation. It is not yet clear which branch of government will prevail.
Ley Sinde – Online Service Providers Liability Act
The Sustainable Economy Act ("SEA" -- Statute 2/2011, March 4th) had its origins in a legal initiative approved by the Spanish Cabinet on November 27, 2009. Its main objective was to modernize the Spanish economy in financial, corporate, and environmental matters in order to respond to an economic crisis. The original version of SEA included the so-called Sinde Act ("Ley Sinde"), named after Spain's Ministry of Culture, Angeles Gonzales-Sinde. Ley Sinde was intended to shut down websites that host links to copyright-infringing material. From the beginning, Ley Sinde raised serious concerns for Spanish citizens' rights of due process, privacy, and freedom of expression
According to cables released by WikiLeaks and reported on by El Pais, the U.S. government played a key role in architecting Spain's copyright enforcement initiatives. El Pais reported that in 2008 the U.S. government threatened to put Spain on the annual Special 301 Watch List issued by the Office of the U.S. Trade Representative unless the new Spanish government announced new measures to address Internet piracy. The U.S. made good on its threat to add Spain to the Watch List in 2008 and 2009. The Spanish government responded by proposing Ley Sinde as part of the SEA in 2009.
Perhaps due to the revelations in the WikiLeaks cables, Ley Sinde was highly controversial and was defeated in 2010. However, the bill was reinstated within months, and the SEA -- including Ley Sinde -- was approved by the Spanish Congress on February 15, 2011. The Spanish executive office deferred to fully enact the copyright law due to its wide unpopularity. In reaction, the U.S. raised the stakes and stated that they would elevate Spain in the USTR's annual Section 301 report that year by listing it in the “Priority Watch List”. This threat was the final trick. On December 30 2011, the newly elected executive government passed Ley Sinde by approving the regulation that dictated the application of the law. In the 2012 Special 301 Report, the USTR no longer listed Spain.
BlockingCreated by: law
Ley Sinde works to block or or close down websites hosting infringing material or even providing links to infringing content. It has been labeled as "anti-P2P" legislation aimed at shutting down file-sharing sites.
The law is directed against allegedly copyright violations by "information society services providers" (ISSP). This concept (taken from the EU Directive on E-Commerce) includes not only intermediaries (transmission services, hosting, caching and linking) but content providers as well (and thus websites of any kind, as long as they are run as an economic activity).
Under Ley Sinde, the Ministry of Culture creates the Intellectual Property Commission ("Commission") to act as arbitrator in intellectual property disputes. This means that an administrative body within the executive branch, and not a court, is provided authority to issue decisions on digital copyright infringement.
Ley Sinde establishes that service providers hosting infringing content can voluntarily restrict or delete infringing content within 48 hours of being notified. In cases where the infringing content is not deleted or blocked, a process begins that gives each party a brief period of time to present evidence, after which the Commission issues a decision on whether the website should be blocked, though it will not rule on damages. If the Commission orders the site blocked, the decision requires a judge’s formal ratification. However, the court is only allowed to rule on whether there’s a constitutional violation in the ruling, not on the actual merits of the case. Read more about the process here.
Content blocking may involve content stored in servers abroad, i.e. outside of Spanish territory.
Data DisclosureCreated by: law
Ley Sinde also includes a troubling provision that allows affected parties to seek the identity of those believed to have infringed on copyright. The parties must request this data through a legal process, and a judge must issue an order to reveal the data necessary to identify infringers.
Facts and Figures
Economists have criticized Ley Sinde. In a report published by FEDEA, an economic research center, the proposal was called
useless and an ineffective way to defend the artists because it is already an ancient form of fighting piracy.