Piratería en España

Cable sobre la polémica por la ley contra la piratería

La Embajada informa sobre la controversia provocada tras la publicación, en 2009, de la ley de Economía Sostenible

Date:2009-12-04 16:44:00
Source:Embassy Madrid
Dunno:09MADRID1052 09MADRID1137 09MADRID1152
DE RUEHMD #1161/01 3381644
P 041644Z DEC 09




E.O. 12958: N/A

B. MADRID 1137
C. MADRID 1052

MADRID 00001161 001.3 OF 004


1. (U) On November 27, Spain's Council of Ministers approved
for submission to Congress a draft Law for a Sustainable
Economy (LES), designed to modernize and restructure the
economy to make it more competitive. Septel will address the
law's scope and major provisions. One aspect of the draft
legislation proposes amending existing intellectual property
laws to facilitate government action to deter Internet
piracy. Rights-holders generally support the proposals as a
first step towards reducing Internet piracy, though music
industry representatives have expressed disappointment that
the government did not go further. All political parties
except the ruling Socialists have expressed opposition to the
measures. Internet users' associations have reacted with
shrill denunciations. A manifesto harshly critical of the
government's proposals that appeared on the Internet early on
December 2 has reportedly garnered tens of thousands of
adherents. Opponents have announced plans to demonstrate
December 4 in Madrid and other cities. The Minister of
Culture met with a group of Internet experts in an effort to
restore calm, and the Presidency put out a clarifying press
release. However, in a December 3 press conference,
President Zapatero denied any intention on the part of the
government to close websites and intimated that the draft
provisions may be rewritten. Two Vice Presidents and the
Minister of Justice also made comments that left the
government's ultimate intentions unclear. End Summary.


2. (U) The anti-Internet piracy provisions anticipate
recommendations that the government's Inter-Institutional
Commission (see reftels) is mandated to forward to the
government by December 31. According to Salvador Soriano,
Deputy Director for Information Society Services in the
Secretariat for Telecommunications and the Information
Society (SETSI), the Commission reached consensus on the need
for these legislative changes and decided to attach them to
the best available legislative vehicle instead of waiting
until the end of the year. The legislation seeks to amend
Law 34 of 2002, the Law on Information Society Services and
Electronic Commerce (LSSI), and Royal Legislative Decree
(RLD) 1 of 1996 , which incorporates the Law on Intellectual
Property (LPI), in ways designed to provide more protection
for IPR on the Internet. The primary change would be to
expand the scope of Article 8 of LSSI.

3. (U) LSSI Section 8.1 empowers "competent organs" to take
the necessary measures against an "Information Society
service" that it finds to be acting to the detriment certain
interests. These include national defense, public order
(including criminal investigation), public safety, public
health, consumer and investor protection, respect for
personal dignity and non-discrimination, and protection of
minors. In such cases, the competent organ may order the
service interrupted or the damaging material removed. Final
Disposition 1 of the draft LES proposes to add "safeguarding
intellectual property rights" to this list of interests that
could justify interrupting service or removing offending
material. It then adds a new Section 8.2 granting the
"competent organ" the authority to identify persons
responsible for IPR-infringing activity - site owners,
executives, or administrators - by asking Internet Service
Providers (ISPs) for the information, and requires the ISPs
to comply with such requests.

4. (U) In support of these measures, LES would also amend the
RLD 1 to expand the jurisdiction of an existing Intellectual
Property Commission affiliated with the Ministry of Culture.
This Commission is responsible for mediating and arbitrating
IPR-related disputes. The draft law would establish a
"Second Section" of the Commission as the "competent organ"
under LSSI Articles 8 and 11 (which requires service
providers to cooperate with such entities). Rules for naming
members of the Second Section, as well as its specific
functions and procedures, are to be addressed by a separate

MADRID 00001161 002.3 OF 004


5. (U) According to government officials, the Second Section
would act not on its own initiative but in response to
complaints about websites that make copyright-protected
content available without authorization. It would examine
such complaints while respecting "the maximum guarantees of
inherent rights and principles," requesting of the ISPs such
information as "addresses and ownership of websites" but not
personal data. Its objective would be the "re-establishment
of legality via the removal of content disseminated without


6. (U) Culture Minister Angeles Gonzalez-Sinde and Industry,
Tourism, and Trade Minister Miguel Sebastian have stressed on
numerous occasions that the government will not target
individual users nor criminalize activities such as
downloading or file-sharing via peer-to-peer (P2P) programs.
The LSSI language allows the government to interrupt "an
Information Society service," i.e., a website but not an
individual user's account. The government thus disavows any
intention to implement a graduated response regime such as
contemplated in recently enacted legislation in France.
Their specific intent is rather to impede access to
infringing content. The Coalition of Creators and Content
Providers has identified some 200 "commercial scale" websites
(ref C) that allegedly either house or link to such content
and that will no doubt be among the first targets of the
Second Section if and when Congress passes the LES.


7. (U) Some rights-holders - especially representatives of
the music industry - argue that this limitation will leave
users free to continue to engage in unauthorized P2P
downloading and thus will not significantly deter piracy.
They are especially concerned that the government is not
seeking to address Internet users' underlying attitude or
behavior, which they see as key to reducing piracy. However,
Coalition spokesmen and representatives of several of its
constituent organizations have expressed support for the
legislative proposal as a step in the right direction.

8.(U) While many content providers wish the government would
go further, they also believe these measures probably
represent the most that can be achieved at this point and
that accepting them will enhance rights-holders' ability to
press the government for more stringent measures in the
future. Jose Manuel Tourne of the Federation for the
Protection of Intellectual Property in Audiovisual Works
(FAP) said the measures could help transform an environment
in which a substantial segment of the population currently
believes (or affects to believe) that anything goes on the
Internet. He also expressed hope that amending the Internet
IPR legislative regime would lead the Prosecutor General's
Office (Fiscalia) to modify its Circular 1 of 2006, which has
led to much misunderstanding and some adverse judicial

9. (SBU) Neither the Internet Service Providers' (ISPs)
association, Redtel, nor its constituent companies -
Telefonica, Orange, Vodaphone, and Ono - have commented thus
far on the government's proposal. Some press reports suggest
the ISPs were caught by surprise and are dismayed. However,
SETSI Deputy Director Soriano, who works in a Secretariat
that maintains close ties with telecoms, said these measures
had been under consideration for some time and the ISPs knew
they were coming. They were discussed in on-again, off-again
negotiations between the Coalition and Redtel. When these
talks failed to reach fruition, the government decided to
move ahead unilaterally. In the past year, both Redtel and
its most influential member, Telefonica, have stated publicly
that if the government wants to combat Internet piracy, it
should legislate, and service providers will obey the law.
It remains to be seen whether the ISPs will support or oppose
these proposals.


MADRID 00001161 003.3 OF 004

10. (U) Reaction from the Association of Internet Users
("Internautas") and like-minded organizations, however, was
immediate and vocal. On the morning of December 2, a
10-point Manifesto in Defense of Fundamental Rights on the
Internet appeared on the Internet and in the first two days
had reportedly gained tens of thousands of adherents. The
Manifesto argues that "copyright cannot be placed above
citizens' fundamental rights such as privacy, security, the
presumption of innocence, effective judicial protection, and
freedom of expression." Its authors decry the empowerment of
an administrative entity to do judges' work, and claim that
bypassing the judicial system violates due process. They
protest that the measures, if approved, will damage the
technology sector and inhibit new cultural creation on the
Internet, and further argue that content providers should
abandon their obsolete business model and seek new ways to
profit from their work on the Internet.

11. (U) Several attorneys specializing in telecommunications
and Internet law published op-eds opposing the measures,
arguing that websites should not be shut down without a
judicial order. An opinion piece in daily El Mundo by
self-proclaimed "Surfer's Lawyer" Carlos Sanchez Almeida,
entitled "Closing Websites: The Sinister Second Section,"
denounces "the systematic contempt with which our political
class treats the judicial power." Sanchez further argues
that the proposed amendments to the LSSI represent
governmental overreach and open the door to a variety of
potential abuses. A headline in daily of record "El Pais"
proclaimed the birth of an "Internet cultural police," while
El Publico's headline quotes an attorney as saying that "The
door to censorship on the Web has opened." Other
commentators were somewhat more measured, noting that the EU
telecom passage recently approved by the European Parliament
will not require a court order for cutoff of Internet access,
but rather "a fair and impartial process that includes the
user's right to be heard," and note that the proposed
measures are considerably less severe than those in place in
the UK, France, and Germany. A few columnists questioned
what all the fuss was about if the government wanted to shut
down operations that were openly distributing stolen goods.

12. (U) Opposition parties and some small parties nominally
allied with the government unanimously criticized the
proposed anti-Internet piracy proposals. Perhaps most
significantly, a spokesman for the main opposition Popular
Party (PP) accused the government of proposing the creation
of a cultural police force that would "bring back censorship"
and turn the Minister of Culture into "the Big Brother of the
Internet." He added that "a revolution is being forged on
the Internet against the government, and we have to pay
attention as if it were taking place in the streets." The PP
official likened suspension of websites to "governmental
kidnapping of a communications medium." The United Left (IU)
declared itself "belligerent" with respect to the proposals
and argued that links to unauthorized content are in fact
legal. Weakened by the economic crisis, the government has
no stable majority in Congress and will need to round up
votes from smaller parties to pass this law. Passage of the
LES is a high priority of President Zapatero, who describes
it as reorienting the Spanish economy to a more sustainable
model. The government is expected to ask Congress to address
the legislation expeditiously.


13. (U) Culture Minister Gonzalez-Sinde appeared in the
Senate December 2 to explain the proposals and met on
December 3 with a group of bloggers, journalists, and
Internet professionals and experts who asked her to remove
the proposals from the draft legislation. After a two-hour
debate, the Minister reiterated that the government intends
to move ahead. President Zapatero's office (Moncloa) issued
a press release to explain and clarify various aspects of the
proposed measures, noting they are fully compatible with the
EU telecom package. Moncloa cited the importance of IPR
protection to the continued development of Spain's essential
cultural industries as a motive force behind the initiative,
and called piracy an act of illegal competition. Moncloa
also promises that affected parties will be able to appeal to

MADRID 00001161 004.3 OF 004

judges if they believe their Constitutional rights are being
abridged by the IPR administrative process.

14. (U) In a conversation with Econoff, SETSI Deputy Director
Soriano said the strident opposition was to be expected and
would not deter the government from moving the legislation
forward on a priority basis. Likewise, Carlos Guervos,
Deputy Director for Intellectual Property at the Ministry of
Culture, asked about the manifesto and other shrill
commentary, quoted the proverb that "the dogs bark but the
caravan moves on," and added that now was the time for his
Ministry "not to go wobbly."

15. (U) At a press conference late on December 3, President
Zapatero appeared to distance himself from the legislative
proposal, saying that "Nothing will be closed, no web and no
blog. If the draft law has been interpreted (as containing)
some possibility of closing one of the spaces of the sites
that is on the web, I'm telling you now that there's no way.
If something needs to be cleared up about the wording, it
will be done...and of course, I'm giving my opinion, freedom
of expression will always prevail." Zapatero went on to
express support for strong government action to protect
intellectual property, "because if we don't, we'll be without
intellectual strength, without intellectual creation." First
Vice President Maria Teresa Fernandez de la Vega stated that
"there has always been judicial control and there always will
be," suggesting that the government may seek to replace the
Second Section's administrative review with a judicial
process. Justice Minister Francisco Caamano said the closing
of websites should include "judicial authorization and
control." Further confusing the matter, Second Vice
President (and Minister of Economy and Finance) Elena Salgado
said the Congress could try to "perfect" the draft
legislation but that "a judicial order is necessary to shut
down Internet access but not to suspend it." One contact
told us that the Council of Ministers will address the
controvery and the draft legislation during their weekly
meeting today.


16. (SBU) As this debate continues to unfold, post notes that
on December 3, the Ministry of Health and Social Policy
reportedly began the process of taking down four websites for
selling medication illegally and without prescription. The
Health Ministry's actions appear uncontroversial. Government
authorities take action every day that in some way regulates
or restricts Internet activity, and the society seems no less
open for their efforts. At the same time, distrust of the
government's good intentions and of its ability to deliver
good results run high. Thus, fears of censorship and
invasion of piracy, while expressed in this instance in
alarmist and scare-mongering fashion, remain very real to
some. The government faces a serious challenge in trying at
long last to undertake concrete measures to protect IPR
online, and the outcome is uncertain. End Comment.
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