The intellectual property black hole
Spain is in danger of being put back on the US watch list of "pirate countries"
A committee set up to inspect websites hosting illegal content is proving ineffectual
As far as intellectual property is concerned, as T. S. Eliot once wrote, April could be the cruelest month - for the Popular Party government, that is. That is when Spain might be put back on the fearsome 301 Watch List, a compilation of "pirate countries" drawn up each year by the Office of the US Trade Representative. The influential entertainment industry is recommending that Spain be included again, after a year's absence.
In fact, Chris Dodd, president of the Motion Picture Association of America (MPAA), personally talked about it with Spanish Prime Minister Mariano Rajoy at a meeting reportedly attended by European film association leaders as well as Estela Artacho, president of Spain's film distributors, Jorge Moragas, Rajoy's chief of staff, and Pablo Hispán, in charge of education and culture affairs for the government. In a follow-up letter to a meeting that was described as cordial, Dodd praised Rajoy for his government's speedy and decisive action at the beginning of the political term - with the passing of the Sinde-Wert intellectual property law, left half complete by the previous Socialist administration - but lamented the slow progress after that.
The letter essentially says that "understandably, there have been other matters to take care of," in reference to the crisis that Spain is going through, but that nevertheless it is urgent to take action now. "A more responsible use of the internet will be beneficial to Spain," says the letter.
The US announcement caused an outcry among industry figures and management groups, besides disrupting the Spanish state secretary for culture's peace and quiet. This is not the first time that the US government has openly expressed concern over piracy in Spain, as demonstrated by the WikiLeaks case a couple of years ago. But this time, the admonition is based mostly on the alleged ineffectiveness of a committee known as the Second Section of Intellectual Property, which is tasked with shutting down websites that offer copyrighted material or links to the same.
Is there a basis for such a claim, or does the committee in charge of ending piracy in Spain really work? Above all, what have its 10 members - who include representatives from the Industry and Economy ministries - been doing this past year?
Ever since its creation in March 2012, the committee has received 361 inspection requests for websites suspected of hosting illegal content. But of these, the first 200 must be ruled out: they were all filed by Eme Navarro, a musician and member of SGAE, the music copyright management association, to make a point about the alleged uselessness of the Sinde-Wert Law (named after the Socialist minister who first proposed it, Ángeles González-Sinde, and the PP minister who later completed it, José Ignacio Wert). A further 46 complaints were dismissed over technicalities. Of the remaining 115, 90 are still being investigated and 25 ended in an agreement, according to the office of the state secretary for culture. In other words, the contentious content was eliminated from the sites - twice after the committee issued a resolution (the step prior to court action), and the rest of the time after one or two written warnings.
Teresa Lizaranzu, the committee president, admits that the numbers are far from spectacular. "We need to be a little more efficient, as requested by [state culture secretary José María] Lassalle. Nevertheless, let's keep in mind that the point of the process is for content to be removed, not for resolutions to be issued."
Lassalle has spoken about obstacles in the committee's "daily work and operations," although he failed to discuss specific instances of it. Lizaranzu notes that its members meet once a week "to establish common criteria" but remain in constant contact "through electronic means."
Most of the real complaints filed with the committee (87 between March and December 2012) came from the Federation for the Protection of Intellectual Property (FAP), which represents movie and videogame interests and whose leaders complain about the committee's "slowness and inefficiency."
FAP director José Manuel Torné explains that his own organization has managed to have 52,000 links taken down after sending their own letters to the webmasters. In 2011, that figure came close to 400,000, he says.
"We placed a lot of trust in the Intellectual Property Committee but a year later we find that, at the most, three or four links have been removed"
"We placed a lot of trust in the Intellectual Property Committee," he says. "But a year later we find that, at the most, three or four links have been removed from websites such as Veocine, which remain operational."
Not everyone is even this hopeful. The heads of EGEDA, a copyright management group for film producers, said that they have lost their faith in the committee, and no longer bother to file any complaints.
Even so, the movie and TV industries have been the most active committee users, compared with music industry groups such as SGAE or actors' and dancers' associations like AISGE, neither of which have filed a single complaint so far.
Of all the measures that are "urgently required" to avoid inclusion on the 301 Watch List, the office of the state secretary for culture mentions three: "Incentives for legally available content; social awareness outreach work within schools, families and the industry; and regulatory changes to make work speedier."
This would require a reform of existing intellectual property legislation. While the government has promised a complete overhaul of the Intellectual Property Law (LPI) before this term is out, for now the sector will have to make do with a partial reform, which is still at the draft stage. Heated debates are expected before it even becomes a bill, since intellectual property has always been a bone of contention between the Industry and Culture ministries.
From the draft versions that this newspaper has had access to, three main ideas emerge: a reassessment of the private copy system; more forceful oversight by management bodies, and "strengthening the tools for reaction to violations of intellectual property rights on the internet." The text also considers criminal sanctions for "legal entities whose main activity is to provide ordered, classified lists of links to protected content."
While the executive hammers out a final draft, intellectual property groups complain that nobody has bothered to consult with them yet. They also express disagreement with the first item on the draft: the new "digital canon" (a pre-emptive fee on the purchase of recording media, such as blank CDs, DVDs or MP3 players) will be paid by the state budget, and these groups are losing out with the change: after collecting 115 million euros in 2011, last year the figure fell to five million.
Meanwhile, the publishing, TV and radio industries are making their own demands, such as establishing clear rules for content accreditation or lower internet rates compared with the price of copyrighted content obtained through traditional media.