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The Spanish Bill against online copyright infringement. What is it all about?

January 15, 2011

The controversial Spanish bill that aims to block allegedly copyright infringing websites continues to be in the center of a hot public debate. The bill, widely known as “Ley Sinde” –Sinde Act, after the Minister of Culture’s name– was rejected by Congress last 21 December. The Government is now trying hard to move it forward in the Senate.

But, what is this bill exactly all about and how is it different from the legislative measures taken in other European countries? I will try to clear it up in this post.

The “Sustainable Economy Bill”

The so-called Ley Sinde was actually proposed as part of the Sustainable Economy Bill (SEB), a bill addressing a wide range of issues in response to the present scenario of economic recession. The SEB included –almost hidden as a final provision– this new legal mechanism conceived to tackle online copyright infringement (hereinafter, the “Ley Sinde”).

When the whole SEB was finally voted in the House of Representatives (Congreso de los Diputados) on December 21, this particular piece was rejected, and so the bill was sent to the Senate without the “Ley Sinde” provision. What the Governement is trying to do now is to reintroduce is as an amendment to the SEB in the Senate.

Not targeting individual file-sharers

Unlike other legislative measures taken by Member States such as France or the United Kingdom, the Spanish Ley Sinde (at least in its original form) doesn’t aim at users that illegally make available copyrighted material. Rather, it focuses exclusively on information society service providers—whether or not acting as intermediaries—who may violate copyright.

While it covers all kinds of information society service providers, the main purpose behind the Ley Sinde—as publicly stated by its promoters—is fighting against websites that provide links to copyrighted material located in P2P networks or on public servers, whether for downloading or streaming.

The Ley Sinde grants to an administrative body—the newly created Second Section of the Intellectual Property Commission—the power to assess whether an information society service is violating copyright. It also grants this administrative body the power to order the provider of that service to stop providing it or to remove the infringing material.

Amending the Law on Information Society Services and Electronic Commerce

As it deals specifically with the freedom to provide information society services, the new rule is drafted primarily as an amendment to the Law on Information Society Services and Electronic Commerce (LSSICE) –the Spanish Act transposing the E-Commerce Directive– particularly to its Art. 8.

Let us then start by presenting the content of this provision and its links to the E-Commerce Directive (ECD), and then we will see how it would be amended if the Ley Sinde is finally enacted.

Art. 8 LSSICE establishes the cases in which a Spanish judicial or administrative authority may restrict the provision of information society services. It is directly connected to Art. 3 ECD, which deals with the so-called country of origin principle and with the exceptions to it.

According to this principle, “Member States may not, for reasons falling within the coordinated field, restrict the freedom to provide information society services from another Member State”.

There are, however, some exceptions to this principle, which are set forth in Art. 3.4 ECD. This article allows Member States, under certain conditions, to take restriction measures in respect of a given information society service when the measures are necessary for some of the following objectives:

(a) “public policy, in particular the prevention, investigation, detection and prosecution of criminal offences, including the protection of minors and the fight against any incitement to hatred on grounds of race, sex, religion or nationality, and violations of human dignity concerning individual persons”,

(b) “the protection of public health”,

(c) “public security, including the safeguarding of national security and defence”, and

(d) “the protection of consumers, including investors”.

The measures must be proportionate to these objectives and “taken against a given information society service which prejudices [them], or which presents a serious and grave risk of prejudice to those objectives”.

The country of origin principle set forth in Art. 3.2 ECD was transposed in Art. 7 LSSICE. Next, Art. 8 LSSICE—in accordance with Art. 3.4 ECD—provides for the possibility of adopting restriction measures with regard to a given information society service when it prejudices or may prejudice to some of the objectives listed in it.

However, unlike in Art. 3.4 ECD, this possibility of restriction measures in Art. 8 LSSICE is not established just as an exception to the country of origin principle but in general, that is, regardless of whether the service is originated in another Member State, in Spain, or in any other country.

This does not appear to be an improper transposition of the Directive. According to the ECD it is possible for a Member State to adopt restriction measures for the sake of the said objectives with regard to services originating in another Member State. Thus, it seems that nothing prevents a Member State to subject the services originating within its territory to the same kind of restrictions, let alone services originating in non-EU Countries.

The grounds for adopting restriction measures in the LSSICE

The measures envisioned in Art. 8 LSSICE may consist of the interruption of the provision of the service or the removal of the illicit material. The objectives that may motivate those measures are similar to those listed in Art. 3.4 ECD:

(a) the protection of public order, the investigation of criminal offences, the public safety and the national defence;
(b) the protection of public health and of consumers, including investors;
(c) the respect of human dignity and the principle of non-discrimination on grounds of race, sex, religion, opinion, nationality, disability or any other personal or social circumstance; and
(d) the protection of youth and childhood.

The restriction measures should be adopted by the authority which is competent for the protection of the concerned objective, acting within the competencies conferred on it by the Law.

This “competent authority” does not always need to be a court, as the protection of some of the objectives is also entrusted to administrative bodies—for instance in the case of public health or consumer protection.

Here is where the Ley Sinde comes into play. It introduces an amendment to this Art. 8 LSSICE, which consists of adding a new objective to the list: the protection of copyright.

The purpose of the Ley Sinde, as mentioned above, is to allow an administrative authority to order restriction measures against information society services that may violate copyright. Thus, Art. 8 LSSICE—an article that, as noted, already allows not only courts but also administrative bodies to restrict the provision of information society services—was seen by the drafters of the bill as the best place to insert the new rule.

A new administrative authority

Next thing is creating the administrative authority that will exert the function of protecting copyright and ordering the said measures. To this end, through an amendment to the Copyright Act (TRLPI), the SEB establishes a new Section within an already existing body—the Intellectual Property Commission.

While the First Section of this Commission will continue to exert mediation and arbitration functions, the newly created Second Section will have the mission of protecting intellectual property rights from its violation by information society service providers, and will be the authority with the power to adopt the restriction measures provided for in Article 8 LSSICE.

According to the proposed amendment of Art. 158 TRLPI, the Second Section of the Intellectual Property Commission will be able to order the measures for the interruption of the provision of an information society service or for the infringing materials to be taken down.

The measures may be taken against an information society service provider who acts with direct or indirect lucrative intent. It appears that the reference to “indirect” lucrative intent is meant to include the situations such as those where the owner of a website offering links to infringing content does not charge a fee for the service, but seeks economic profit through advertising placed on the page.

The restriction measures may be taken as well against providers lacking direct or indirect lucrative intent as long as their conduct causes—or is capable to cause—a patrimonial harm. Arguably, this encompasses any situation involving an infringement, and thus—in spite of what was claimed sometimes in the debates—the bill does not target just people who try to profit from copyright infringement but has a potentially broader scope.

Freedom of expression concerns

Once the first draft of the Ley Sinde was made public it prompted a strong opposition from internet users. In particular it was argued that allowing an administrative authority to order the closing down of a website would violate the principle of freedom of expression.

It was contended that websites are media and therefore only a court could order to close them down. Actually, the current text of Art. 8 LSSICE already takes this into account, as a measure of closing down of a website adopted by an administrative authority might run afoul of Art. 20.5 of Spanish Constitution, which establishes that “[t]he seizure of publications, recordings, or other means of information may only be adopted by a judicial decision”.

Indeed, Art. 8 LSSICE includes a paragraph stating that the competent judicial authority—as the one responsible for ensuring the rights to freedom of expression, to receive information, to academic freedom and to literary, artistic, scientific and technical creation—will be the only one who may adopt the restriction measures contemplated in that provision wherever this competence is attributed exclusively to judicial authorities by the Constitution or other laws governing the concerned rights.

It could be argued, thus, that this paragraph of Art. 8 LSSICE already ensures that the proposed amendment will not allow administrative authorities to take restriction measures that may violate freedom of expression and the other related rights. However, it was contended that the reform would indeed be an assault on free speech as the one who would decide in the first place whether or not the restriction measure affects those rights would be the administrative authority itself.

A truly peculiar system of judicial control

Therefore, and in view of the strong opposition against the bill, before introducing it into Parliament the government modified it to include a (truly peculiar indeed) system of judicial control.

It was decided that once the Commission orders a restriction measure, it must ask the court to authorize its execution. However, the court will not be able to consider the merits of the case, i.e. whether there is indeed a violation of copyright.

Rather, the court must only take into account whether the concerned measure prejudices the rights and liberties enshrined in Art. 20 of the Constitution, quoted above. Moreover, the court’s decision must limit itself to either grant or deny the authorization—it cannot modify or amend the measure.

This peculiar system raises important concerns. Not the least of them is that it appears to craft an administrative procedure in the hope of achieving something that courts have been denying so far—deeming that websites that link to infringing content engage in copyright infringement and closing them down.

This is certainly striking, as it is difficult to see how an administrative body could find those websites to be infringing where judges have found them not to be so.

Note: this post was based on this recently published paper

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