Thursday January 27th, 2011 11:11

Spanish government reintroduces Sinde Law proposals after parliamentary knock back

Spain

The Spanish government has reintroduced proposals to make it easier for content owners to target copyright infringing websites, after proposed new copyright laws were knocked back by the country’s House Of Representatives just before Christmas.

As previously reported, the so called Sinde Law is Spain’s attempt to introduce new regulations that reduce levels of illegal file-sharing. Unlike the UK and France, where three-strike style systems that target individuals who file-share have been favoured by lawmakers, in Spain the preferred approach is a fast-track system through which content owners can force websites that exist primarily to assist others in their illegal file-sharing offline. Such a system was also included in the UK’s Digital Economy Act in addition to three-strikes, but with an extra clause that basically stopped it from being introduced in the short term.

The last time we reported on the Sinde Law in late December it looked like Spain’s parliament was about to green light the Spanish government’s plans, which were included in wider legislative proposals under the banner Sustainable Economy Law. However, amid high profile campaigning by some of those websites that fear they will be targeted under the proposed shutdown system, and other consumer groups who proposed the new rules, the House Of Representatives voted against the proposals.

But ministers remain committed to their anti-piracy system, and this week, with the support of three political parties, reintroduced the Sinde Law into the SEL proposals just before they head to the upper house of the country’s parliament, the Senate. With three parties involved in the slightly tweaked Sinde Law proposals it is thought they will now pass through the Senate without any problems. I’m not clear on whether the reworked Sinde Law will then have to go back to the House Of Representatives for a second vote.

The tweaks basically involve adding a judicial stage into the shut down process. It seems that first draft anti-piracy systems proposed by politicians after being lobbied by content owners invariably lack a judicial stage where a court of law considers any sanctions against copyright infringers – whether that be suspending the internet access of individual file-sharers, or ordering internet service providers to block access to an entire website.

Opponents usually argue, probably rightly, that puts too much power in the hands of government agencies and throws doubt on the independence of any appeals process. The French government had to add in a judicial stage into their Hadopi three-strike law, and that’s basically the compromise Spanish officials have included in their second draft proposals to try and reassure those who opposed the Sinde Law first time round that the new system won’t let copyright owners to go round shutting down websites on whim.

Of course, while the tweaks may be enough to placate political opponents in the Spanish parliament, opposition to any new rules to target file-sharing remains just as strong outside the legislative chamber.

As much previously reported, with the new laws the Spanish government is, in part, responding to pressure from foreign governments who reckon Spain has done far too little to protect intellectual property rights in the digital age. Indeed, it’s not uncommon under Spain’s existing copyright system for Spanish judges to rule that non-commercial file-sharing does not actually constitute infringement at all. Torrentfreak claims that American officials have been directly involved in drafting the Sinde Law proposals.

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  • ImnotSinde

    Let me highlight the fact that filesharing is _not_ illegal in Spain as long as it is not done for profit (i.e. you sell copyrighted material). That is the reason why judges have ruled the same in ALL cases (not some, as implied by the article): non-commercial file-sharing is not illegal under Spanish law (goog: “derecho de copia privada España”).

    For this right to make private copies, we compensate the authors with a hefty 350 mill EUR / year (goog: “canon digital España”), which is collected by an opaque, private entity (SGAE) that distributes money as they see fit (so if you are Bisbal or one of the other factorymade platinum sellers, you are in for good cash. Otherwise, you see zilch.)

    Also, it is not Torrentfreak that claims that American officials are directly involved in drafting the Sinde Law proposals: Spaniards have had that suspicion for a long time, especially since the discourse of the copyright lobbies was all too similar to the American “proposals” for it to be a coincidence. After wikileaks, the exposure of ex-US ambassador Eduardo Aguirre’s “IPR statategy plan for Spain” and other documents, we now have the evidence that proofs what we already knew.

  • CMU Editorial

    Just to concur – yes, under Spanish copyright law non-commercial file-sharing is NOT illegal, hence the judgments to that effect, and hence efforts from the content industries to get copyright law rewritten. I think actual current Spanish copyright statute is a bit vague on the whole thing, but Spanish judges have not wished to imply into law any liability on non-commercial file-sharers, which has sort of happened elsewhere.

    The private copy right is interesting. I’m no expert of the private copy system in Spain, but in many other territories that right wouldn’t apply to file-sharing, because the point of the private copy is that you buy the track legitimately once, and then make back-up or device-shift copies for your own private use. But without the original legitimate purchase, the private copy right doesn’t exist.

    In most cases of file-sharing the person accessing the track via a file-sharing network isn’t making a back-up copy, but is accessing the track for free for the first time; while the person making the track available is doing so to others, so it’s not a private copy. But as I say, I don’t know much about this system in Spain. And, of course, here in the UK there is no private copy right to start with.

  • chespir

    “because the point of the private copy is that you buy the track legitimately once, and then make back-up or device-shift copies for your own private use”.

    This is not correct. Private copy in Spain was the result of a sociocultural context with difficult access to foreign -or even local- material, be it for the scarcity of sources, or for the unnafordable prices (at the time) for a vast majority. In such a climate, passing on music tapes to friends and colleagues was not only a common practice, but a socially accepted one, since in many occassion this was the only way to get access to the joys of music.

    Buying the track ‘legitimately’, as you put it, was not only difficult to a great many, but directly impossible for more people than it needed to be.

    This is why “piracy” in Spain was never frowned upon – since it was necessity, habit, and the result of an obvious interest for music, which we deemed to be important.

    It was all the tape-swapping that spawned the “copia privada” compensation, and it never made a requirement for the copy to be original for the reasons above.

    So, while the Spanish law doesn’t say anywhere that the copy must be ‘original’, it does require that you have “legally accessed it”. Since p2p is _not_ illegal in this country, all we are doing here is making use of the advantages which technology gives us.

    We majoritarily feel this should be protected, not repressed. There is a small (but powerful) proportion of dissenting voices, those involved in the physical distribution of packed music (ie. record labels), who see themselves out of their comfortable oligopoly situation, that are doing everything in their power to force everyone to comply with their schemes.

    But we won’t allow that to happen, of course. What kind of docile, mindnumbed citizens would we be if we did?

  • CMU Editorial

    Interesting stuff – as I said above, I am no expert of the history of the private copy right in Spain.

    Of course tape-to-tape copying was rampant in many other European markets in the 1980s, not least the UK, even though there was never any private copy right here.

    Either way, the Spanish music industry obviously recognises their copyright laws do not offer as much help to them as elsewhere in Europe, hence all this lobbying. I’ll leave the rights and wrongs of a stronger copyright system to the debaters above.
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