ID

232991

Etiquetas

KIPR, ETRD, ECPS, SP

Fecha

2009-11-04 10:48:00

RefID

09MADRID1075

Origen

Embassy Madrid

Clasificación

UNCLASSIFIED//FOR OFFICIAL USE ONLY

Destino

09MADRID1052

09MADRID224

09MADRID982

Encabezado

VZCZCXRO8490

RR RUEHIK

DE RUEHMD #1075/01 3081048

ZNR UUUUU ZZH

R 041048Z NOV 09

FM AMEMBASSY MADRID

TO RUEHC/SECSTATE WASHDC 1413

INFO RUCNMEM/EU MEMBER STATES COLLECTIVE

RUEHLA/AMCONSUL BARCELONA 4189

RUCPDOC/USDOC WASHDC

RHEHNSC/NSC WASHDC

Contenido

UNCLAS SECTION 01 OF 02 MADRID 001075

SENSITIVE

SIPDIS

@ELIMINADO@

E.O. 12958: N/A

TAGS: KIPR, ETRD, ECPS, SP

SUBJECT: SPAIN IPR/INTERNET PIRACY: INTER-MINISTERIAL COMMISSION

REF: A) MADRID 1052; B) MADRID 982; C) MADRID 224

MADRID 00001075 001.3 OF 002

SENSITIVE BUT UNCLASSIFIED - PLEASE PROTECT ACCORDINGLY

1. (SBU) In an October 29 meeting, visiting senior U.S. Copyright

Office official Maria Pallante and Spanish Culture Ministry official

Carlos Guervos discussed the recently formed Inter-Ministerial

Commission on Internet piracy. Guervos said the Inter-Ministerial

Commission will draft a law to improve and speed up the IPR civil

litigation process and also create an administrative mechanism to

have infringing content removed from the web. Guervos later told

Econoff that the Commission will not attempt to modify the

Prosecutor General's (Fiscala) Circular, but predicted that the new

legislation will compel the Fiscala to issue a new Circular that

will correct the deficiencies of the current one. Septel reports

discussion of issues pertaining to the December meeting of WIPO's

Standing Committee on Copyrights and Related Rights (SCCR). End

Summary.

INTER-MINISTERIAL COMMISSION TO PROPOSE LEGISLATION

2. (SBU) Maria Pallante, Associate Register for Policy and

International Affairs at the U.S. Copyright Office, met October 29

with Carlos Guervos, Deputy Director General for Intellectual

Property at the Ministry of Culture, on the margins of a

WIPO/Ministry of Culture-sponsored conference on Intellectual

Property and Cultural Heritage in the Digital Environment. Guervos

characterized the Council of Ministers' recent creation of an

Inter-Ministerial Commission to work on intellectual property

infringements on websites (see ref A) as a real example of the will

of the Spanish government to tackle the piracy problem. He

identified the Commission's mandate as finding effective legal

solutions to Internet piracy and said the members would build upon

the efforts over the past several months by representatives of the

Ministries of Industry, Culture, Justice, and Interior to diagnose

the problem and develop possible solutions. In an attempt to speed

up the Commission's deliberations, Guervos and representatives of

the other three Ministries have been bringing their colleagues from

the Foreign Affairs, Economy and Finance, and Education Ministries

and the Presidency up to speed on efforts undertaken to date.

3. (SBU) The Commission, he said, is to present a draft law to the

Council of Ministers by December 31 for approval preparatory to its

submission to Congress. While the Commission will also propose

measures on public awareness and education - the reason of the

Education Ministry's inclusion is the intention to incorporate

anti-piracy messages into school curricula - the legislative

component is far and away the most important piece, Guervos said.

IMPROVING THE CIVIL JUDICIAL PROCESS

4. (SBU) The draft legislation, Guervos continued, will contain both

judicial and administrative solutions. The government hopes to

amend the civil procedure law to remove obstacles that currently

make it extremely difficult for rights-holders to win damages in

civil litigation against infringers. For example, the changes would

make it possible for judges to require disclosure of individuals'

names based on their Internet Protocol addresses in civil cases.

The Commission does not intend to address criminal judicial

processes, Guervos said, because modifying the Penal Code would be

an arduous and controversial undertaking; however, he argued that a

robust and agile civil process that offers rights-holders an

effective remedy would make criminal prosecution less necessary. In

addition, he said, a viable civil process would afford

rights-holders the opportunity to present evidence of the earnings

of pirate websites from advertising revenues. Once they have met

the "commercial profit motive" standard required by the Penal Code

and the Prosecutor General's Office (Fiscala) 2006 Circular (see

ref C), rights-holders could convert the case into a mixed

criminal-civil process, he said.

CREATING AN ADMINISTRATIVE REMEDY

5. (SBU) Guervos stated that because, even with these improvements,

a judicial remedy will remain difficult, the legislation would also

create an administrative mechanism that does not run afoul of

privacy and data protection concerns. The law will either create a

governmental administrative body or empower an existing body to

order Internet Service Providers (ISPs) to take down infringing

websites if they are housed in Spain or block them if they are

located elsewhere, or at the very least remove infringing material.

This administrative remedy, Guervos said, would be rapid and thus

would "stop the bleeding" by removing unauthorized content as soon

MADRID 00001075 002.3 OF 002

as it is reported. He noted that although ISPs have been reluctant

to support such a solution, having a law in place would provide them

with "cover" in the case of complaints by irate customers. In

response to Pallante's question about punishment of repeat offenders

who commit willful infringement, Guervos said the law would provide

for more definite administrative sanctions against webmasters in

those cases, but he did not specify what they would be.

6. (SBU) Guervos noted that unlike a "graduated response" system,

the Inter-Ministerial Commission's legislative proposal does not

contemplate measures against individual internet users or consumers

who download material without authorization. As such, he said, it

will not change the Spanish public's bad habits or the culture in

which unauthorized file-sharing is perceived as not only legal but

socially acceptable. That is where the education and public

awareness ("consciousness-raising," he called it) components will

come into play.

SECURING CONGRESSIONAL APPROVAL

7. (SBU) Pallante asked Guervos whether all the Ministries

represented on the Commission were on board with the judicial and

administrative solutions he had outlined. He replied that the

various Ministries had different interests and constituencies, and

some were susceptible to lobbying, but he believed that, in light of

the mandate and tight deadline imposed by the Council of Ministers,

it would be difficult for any Ministry to hinder the Commission's

work. Assuming that the GOS submits the draft law to Congress in

January, Guervos could not predict how long it would take to get

Congress to pass it, though he expected it to be approved sometime

in 2010. He noted, however, that since it would be an ordinary, as

opposed to an organic, law, it would require only a relative, not an

absolute, majority in Congress, which would make the government's

task easier and would likely consume less time. Amending the Penal

Code, on the other hand, would require an organic or Constitutional

law, which would be a much more difficult and lengthy process.

8. (SBU) In a follow-up conversation, Econoff asked Guervos whether

the Inter-Ministerial Commission was considering amending the

Fiscalia's Circular, an action long sought by rights-holders and the

USG, and one that would not require Congressional approval. He

replied that the Fiscalia, though part of the Ministry of Justice,

is by law independent of the rest of the GOS, which cannot force it

to revise the Circular. However, he predicted that the existence of

the new IPR enforcement legislation would likely spur and perhaps

even compel the Fiscalia to update the Circular, offering an

occasion to amend its more problematic provisions.

COMMENT

9. (SBU) As outlined by Guervos, the legislation being drafted by

the Inter-Ministerial Commission, if passed by Congress, clearly has

the potential to achieve results. Rights-holders in Spain have long

bemoaned the near-futility of seeking redress via civil litigation,

and addressing this problem would represent a concrete advance. The

proposed administrative solution, while not as comprehensive as

similar attempts in other European countries or as inclusive as

rights-holders would like, could, if properly implemented,

significantly reduce the availability of infringing content. The

fact that the Ministry of Culture is taking its responsibility so

seriously and is pushing for this relatively ambitious proposal to

be adopted so swiftly is also an encouraging sign. In this regard,

Pallante and Guervos agreed that, given the potential importance of

the Commission and proposed legislative changes, it would be useful

for Guervos to travel to Washington in the near future to brief USG

and U.S. private-sector stakeholders as developments unfold. What

remains to be seen is whether the Commission will be able to keep to

its hyper-accelerated timeline and present its proposals in the nine

weeks remaining in the year, and whether the government will follow

up expeditiously in submitting the draft law to Congress and

pressing for its passage. End Comment.

10. (U) This cable was cleared by Maria Pallante.;"