Spanish intellectual property law and global netfreedom

Spanish Minister of Culture Ángeles González Sinde

Many of the challenges and threats that Egyptians, Tunisians or Libyans are facing are global and affect civil societies as a whole. Among these is the threat against the Internet as we know it and which is often taken for granted in Western countries like the US, France or Spain. The law known as the “Sinde Law” (Sinde is the Spanish Minister of Culture´s last name), which would allow for the blocking of websites and which has just been approved by the Spanish Senate is an example of a tendency to control the Internet that leaves citizens defenseless in front of states and big companies interests.

The passing of the 2009 Sustainable Economy Bill, which will most likely become effective by the summer, is a big blow against net neutrality. The newly-created Spanish Intellectual Property Commission, which depends on the Ministry of Culture, will be in charge of deciding which sites should be blocked or have their contents removed after receiving complaints on the basis of public order, national defense, protection of minors and “safeguarding IP rights”. It would also require ISPs to identify and disclose persons responsible for IP infringements.

Reducing “online piracy” is the main goal of the Commission, which will be in charge of deciding what content is considered infringing and ask the person responsible for the site to remove them, after getting authorization from a judge. This last part was included in the law after huge controversy about the initial draft, which did not even mention the need for judges´ authorization. Among the law´s targets are sites like the very popular Seriesyonkis, which link to third-party sites hosting videos, something that has in several occasions been declared legal by the judges. Taken to the extreme, this logic could lead to the absurd scenario of Google being banned, as the world´s largest link provider.

According to renowned lawyer Javier de la Cueva, this goes far beyond users not being able to download or watch their favorite shows online for free:

It threatens our basic right to free expression. The Internet has allowed citizens to create their own spaces and communicate in a more decentralized way that is more difficult for governments to control than traditional communication channels. Under the justification that intellectual property needs to be defended, they defend the industry, and by putting the industry above the right of users to communicate through services of different kinds, the “Sinde law” provides governments with another way to control and censor communication.

Since the judges have already decided that linking to third sites hosting videos is not illegal, what is the point in getting authorization from the judges to punish users? Why this insistence on punishing Internet users, defying judicial power?

Pressure from the US is apparently one of the reasons for enacting such regulations. Last December Wikileaks cables revealed how the US Government was trying to impose on Spain new measures “to fight piracy” in the line of French Hadopi law. Measures such as these had not even been considered within the US. According to 2008 cables:

We propose to tell the new government that Spain will appear on the Watch List if it does not do three things by October 2008. First, issue a [Government of Spain] announcement stating that internet piracy is illegal, and that the copyright levy system does not compensate creators for copyrighted material acquired through peer-to-peer file sharing. Second, amend the 2006 “circular” that is widely interpreted in Spain as saying that peer-to-peer file sharing is legal. Third, announce that the GoS will adopt measures along the lines of the French and/or UK proposals aimed at curbing Internet piracy by the summer of 2009. (US embassy in Madrid)

The Electronic Frontier Foundation refers to “US Bullying Spain into Proposed Website Blocking Law”, but while US attempts to get their allies to mirror their policies are undeniable, Spain´s lack of resistance to this pressure speaks poorly of our political representatives. With or without pressure, there is little questioning of their interest in protecting Spanish record and movie industries, which face a crisis after years of dependence on State subsidies and traditional models where intermediaries get most of the benefit from consumers´ pockets. While Spanish political representatives talk about the need to protect artists and culture, what most Internet users perceive is the reluctance to let go of an industry, of a business model that does not reflect the way culture is shared and consumed in the 21st century.

It is not the first time Spain follows US instructions, defying its own judicial system. It has also tried to stop judges from investigating the death of José Couso, the cameraman killed by US soldiers in Iraq; the same Iraq war that the now ruling party, PSOE, fiercely opposed while they were in the opposition. But pacifist discourse when trying to win an election faces realpolitik alliances and interests when in power. Wikileaks has also revealed the unbridgeable gap between governments and civil societies, between official discourse and real practices and alliances, something that the uprisings in the MENA region have helped make visible: A global phenomenon that is far from excluding Western societies.

Spanish Internet users have fiercely opposed “Sinde Law”, but are we fully aware of what is at stake? In a scenario where state police will be imposed on Spanish citizens online, what is at stake is users’ privacy, freedom of expression, and the division between executive and judicial powers that constitutes one of the foundations of democracies. An online campaign called “No les votes” (don´t vote for them) tries to mobilize citizens against all political parties that have supported the law, which include PSOE, PP and CIU (Catalan nationalist party).

Will “Sinde Law” manage what other threats have not? If it becomes the catalyst in Spain of a much needed questioning of a system that threatens our basic freedoms, it will be worth it.

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