The New Spanish Digital Inquisition: “la ley Sinde”

By pepi On January 26, 2011 · 9 Comments · In copyright & copyleft, Countries, Law, politics, society, Spain, Trends

Imagine the following scenario. One day, the SGAE (Spain’s royalty-collection agency, similar to the RIAA) decides to “launch” a Manifesto demanding, among many other things, the end to free music downloads in Internet. After a while, the Spanish Government, doing an act of assistance, is trying to enact a new and disturbing law for the general public. The Bill for a Sustainable Economy (Proyecto de Ley de Economía Sostenible) is commonly known as “the law without downloads” or “Ley Sinde” (Ley Sin Descargas). Though the purpose of it is supposed to be the boosting of the recovery of the Spanish economy, the reality is that it has some black issues hidden within which the Spaniards are trying to hold back.

One of the big problems of the Bill is trying to enact a law within a law. That is, using a Bill for Sustainable Economy, the Government tried to establish reforms almost hidden at the end of the long text. Among other provisions, the Bill states that it would be possible to close down web sites offering P2P links, without a process in a Court, that is, without a Judge deciding*. The main problem, however, resides on how the draft is written and how it was presented to the public.

Polemics reside on the Final Second Regulation added at the end of the Bill’s text (at the end of the long Bill’s draft).

DISPOSICIÓN FINAL SEGUNDA. Modificación de la Ley 34/2002, de 11 de julio, de Servicios de la Sociedad de la Información, el Real Decreto legislativo 1/1996, de 12 de abril, por el que se aprueba texto refundido de la Ley de Propiedad Intelectual y la Ley 29/1998, de 13 de julio, reguladora de la Jurisdicción Contencioso-administrativa, para la protección de la propiedad intelectual en el ámbito de la sociedad de la información y de comercio electrónico.

In this Final Second Regulation major changes are introduced on the text of the following laws:

Law (or) Act 34/2002, of July 11, governing the Information Society and Electronic Commerce Services
Royal Legislative Decree No. 1/1996 of April 12 Approving the Revised Law on Intellectual Property, regularizing, clarifying and harmonizing the applicable statutory provisions
Law (or) Act 29/1998, July 13, governing the Contentious Administrative Proceedings Jurisdiction for the protection of the Intellectual Property into the Information Society and Electronic Commerce Services

Mainly focusing on the creation of the National Intellectual Property Committee, within the Ministry of Culture (it sounds as creepy as the Holy Inquisition Trials within the Roman Catholic Church), the Bill introduces a new process for closing “unlawful” webs quickly. The Bill confers to this Committee legal authority as a mediation, judgment, decision and safeguard legal organism in connection with the intellectual proprietary rights. Despite of its formal composition, its members are not judges. Furthermore, the Bill establishes that in 4 days after the resolution of the Committee, the Court which has to carry out that resolution (the Committee has not that power), will summon the Administration’s representative, the public prosecutor and the copyright holder to hear their versions on the case. However, the decision that the Court can take is only to approve or not approve the resolution taken by the Committee.

An additional problem with this Bill is that it explains a lot about the new Committee, how the process is going to be held, and how the judgments would be made, without mentioning crucial points about how the law interprets what is a link, or how the rights of intellectual property are damaged. In other words, it doesn’t explain at all how links can be unlawful, who can be responsible and why.

Let’s put some questions on the table as an example of what the Bill fails to answer:

Is a web a sub-domain or a whole domain? Or several domains?
Is Blogspot responsible of a blog housed in it? Or, is it the user who created the blog the one responsible for it?
Is an iframe to an external contents a link?
If the link refers to an encrypted file and you do not give the password, does the law consider that it links to content with copyright?
If an url is written without the link tag, is it a link as well?
You search on Google HOYYWO and you look at the first result. If that one is the last movie of Alex de la Iglesia, would that be an illegal link?

This ignorance of technical issues makes of the Bill a digital witch-hunt similar to the perpetrated by Medieval Spanish Inquisition, at least in its way of thinking. We have to be aware about nowadays reality: those who make the legal code (lawmakers, lawyers) do not take much care about the <code>technical code</code>. Apart from the problems related to copyright violations, we have the tremendous burden created by the lawmakers: the law isn’t properly designed for being used in a digital world. Thus we have:

an insufficient regulation based on an analog legal code
a deep ignorance of the <code>digital technical world</code> in which intellectual property violations take place because the analog legal code constrains us further and erodes our rights.

This, let’s say, divorce between analog regulations and digital world, produces a reduction of rights. While in the analog world Revolutions and struggles on copyright issues after the Statute of Anne gave the population a honorable set of rights, the transition into a digital world is making the analog rulers erode quickly our inherited rights.

The Spanish “Ley Sinde” is not only eroding the historically inherited rights of Spaniards, but it’s also creating fear, uncertainty and doubt (FUD). Furthermore, it’s an example of what could happen if we follow the path of trying to use analog regulations without truly understanding the ins and outs of the modern society, in which the Digital World is introducing a new world. Law should be written in an understandable way while specifying why and how it should be applied, while being adapted for modern times. We are living in a period of transition similar to the one introduced by the Printer machine. Our catalyst is Internet: it does not only gives us a whole new digital world, but the opportunity to rethink and remake our analog world.

What the Spanish Government should have done is to hire the services of a technology consulting company before writing the draft, to try to make sure that the analog legal code corresponds to the digital reality. Instead of drafting an obscure Bill that creates more headaches than solves problems, the Government should have, not only get as many information as possible from all parts concerned, but also use a more clear and easygoing way for presenting the law. FUDs and obscurity will only lead our society to a Digital Middle Ages.

According to the Spanish Manifesto in Defense of Fundamental Rights on the Internet (Spanish version here),

A group of journalists, bloggers, professionals and creators want to express their firm opposition to the inclusion in a Draft Law of some changes to Spanish laws restricting the freedoms of expression, information and access to culture on the Internet. They also declare that:

Copyright should not be placed above citizens’ fundamental rights to privacy, security, presumption of innocence, effective judicial protection and freedom of expression.

Suspension of fundamental rights is and must remain an exclusive competence of judges. This blueprint, contrary to the provisions of Article 20.5 of the Spanish Constitution, places in the hands of the executive the power to keep Spanish citizens from accessing certain websites.

The proposed laws would create legal uncertainty across Spanish IT companies, damaging one of the few areas of development and future of our economy, hindering the creation of startups, introducing barriers to competition and slowing down its international projection.

The proposed laws threaten creativity and hinder cultural development. The Internet and new technologies have democratized the creation and publication of all types of content, which no longer depends on an old small industry but on multiple and different sources.

Authors, like all workers, are entitled to live out of their creative ideas, business models and activities linked to their creations. Trying to hold an obsolete industry with legislative changes is neither fair nor realistic. If their business model was based on controlling copies of any creation and this is not possible any more on the Internet, they should look for a new business model.

We believe that cultural industries need modern, effective, credible and affordable alternatives to survive. They also need to adapt to new social practices.

The Internet should be free and not have any interference from groups that seek to perpetuate obsolete business models and stop the free flow of human knowledge.

We ask the Government to guarantee net neutrality in Spain, as it will act as a framework in which a sustainable economy may develop.

We propose a real reform of intellectual property rights in order to ensure a society of knowledge, promote the public domain and limit abuses from copyright organizations.

In a democracy, laws and their amendments should only be adopted after a timely public debate and consultation with all involved parties. Legislative changes affecting fundamental rights can only be made in a Constitutional law.

Notes:
*This Bill is still being discussed, thus, some points might change to the worse or the better depending on how the struggle between Spaniards and Government ends.

Whether you are a Lawyer, a Technician or neither of them I strongly recommend you to read the following books, and resources: