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El 2012 ha comenzado con fuerza en el campo del Derecho de los Contenidos, específicamente del derecho de autor. Dos medidas que nos han ocupado muchos durante los últimos años: el canon digital y la "ley anti-piratería".

En el  BOE del 31.12.2011 se publicó el Decreto de aplicación de la "llamada Ley Sinde" o ley anti-pirateria y alojamiento de web de descargas, que analizamos a fondo en estos dos post en el Observatorio TICs de Cyberlaw.ucm.es, así como un Decreto-Ley de medidas urgentes que deroga el canon digital.

Debido al interés despertado entre colegas y periodistas por esta Ley, que se aprueba en medio del debate de la SOPA en el Congreso de los Estados Unidos, ofrecemos un resumen del Decreto 1889/2011, de 30 de diciembre.

The new procedure to block illegal content in Spanish Law (#LeySinde)

On December 30th the new government of Spain approved a decree to make a new law effective.  Under this new “Ley Sinde” (named for the former Minister of Culture, Angeles González Sinde)  which was passed in March of 2011 -  the way is paved for a new procedure to erase illegal content on Spanish servers or webpages hosted in Spanish territory.

Some media commentators consider it to be the Spanish SOPA Law, although there are many differences.

In the midst of a huge protest on social networks, especially Twitter (#leysinde, #noalcanondigital, #leyantidescargas), the new government passed this act which had been prepared by the former Socialist government  as a result of constant industry requests to end piracy in music, books and cinema.

In my opinion, governments such as Spain’s have acted swiftly to challenge a possible ‘threat’ by the International Anti-Counterfeit Trade Act which is promoted by the United States under the OECD.  The international application of this act would be damaging s there would be a supra-national control of the Spanish market.  It also would imply that a sovereign state is not capable of complying with civil and criminal legal norms.

During its last meeting of 2011, the Spanish government not only introduced a procedure to erase content infringing copyright law, but it also reformed the Intellectual Property Commission.  The Spanish Council of Ministers repealed the controversial “digital canon” which was a tax that every user had to pay as compensation for fair use for a copyright work. Fair use, according to European Law, is broader than in the U.S. as stated in the general rules of Directive 2007/004.  In Spain, “domestic copy” is permitted.

The Intellectual Property Commission

This Commission, which will become effective in March 2012, forms part of the Secretary of Culture of the State.  It will have three separate functions and it will consist of two divisions.

The first division replaces the former Arbitration Commission   which was not considered to be very effective in the arbitration and mediation of conflicts and tariff fixing between copyright holders or collective management entities and users such as broadcasting services and associations of users like theatres or radio stations, and others.  

The second section constitutes the real news in Spanish law because it will be the entity charged with the responsibility of receiving demands from the copyright holders to stop and/or order the removal of web content. As stated in the Decree of Art. 13.1, this section´s function is ‘to safeguard the rights of intellectual property if they are threatened by those responsible for providing services in the information society’.


Similarities and differences between the US SOPA Act and the Spanish Law

First of all, I want to highlight the differences between the US SOPA Act and the “Ley Sinde” because the “global” discussion about “blacklist” and “censorship” is based on incorrect information.  It is possible that people did not read the decree and formed their opinion on hearsay.  Though both are anti-piracy laws, there are great differences between these laws.  

According to Spanish law:

This Act is intended to act against the service providers as well as the web page (private or commercial) and not against the users. I mention this because other countries consider individuals to be responsible for downloading material.

Although the second division is an administrative body (which implies less independence and impartiality) and, from a constitutional point of view, the procedure is limited in its scope of action, there are some guarantees that avoid the infringement of constitutional rights of freedom of expression and the right of communication. In particular:  


1.    The procedure can be set in motion by any author (or representative of an author) of a copyright or holder of intellectual property, but it cannot be approved without proof that the responsible party has, directly or indirectly, acted for purposes of monetary gain and/or has caused patrimonial damage to the owner of the rights.  This is very difficult to prove.  

2.    Once the Second Division has accepted a case, the service provider or other service is informed of the situation and has the opportunity for further action to be taken in a voluntary manner within a period of 48 hours.

During this period, the ISP may oppose the ruling.  This will require additional time and effort on the part of the ISP or service for hosting and virtual servers, making their work more arduous and thus imposing limits on competition over the Internet.

3.    Whenever necessary, the second division has to ask the court to identify the IP number of the web or server suspected of hosting illegal content. This ministerial commission cannot approach the ISP provider directly, nor can it ask the police department to intervene or spy on the IP without an order from the court.

4.    In the event that a provider or intermediary of the “information society” does not remove the content within the required 48 hours in a voluntary manner,  it is mandatory to obtain the approval of a court in order to execute the Resolution to erase illegal copyright material.  

5.    If the Court considers the Resolution falls within the confines of the law, it will issue a declaration (“Auto”) for all parties involved.

The big issue here would be how the court is going to rule during this part of the legal procedure. I mention this because there are different jurisprudence and previous court rulings about “web closings”. According to Administrative Procedure Law,  this would be cause for initiating one’s own investigation as well, for purposes of defending themselves.

Although the Law attempts to establish a very fast procedure for erasing illegal content (72 hours after the Commission Resolution), it would be impossible to accomplish without skipping these guarantees.

6.    If the facts being investigated are also a crime, this Commission should inform the Criminal Courts who will then act according to its recommendations and in most of cases, the criminal courts conduct the investigation.

Piracy as fraud against intellectual and industrial rights has been a crime in Spain for some years.  The reform of the Criminal Code in 1995 added ‘cracking’ or ‘hacking’ as illicit acts. (See Articles 270-272 Spanish Criminal Law).

7.    According to a recent sentence by the European Tribunal of Luxemburg, any administrative entity or authority (except during a judicial procedure) can “spy” or order the monitoring of an IP address of a user.  (Affaire Scarlet, November, 24th, 2011)

In any case the Commission Resolution against a website, could not imply in Spain the blocking of a DNS, nor could it avoid national or foreign visitors. It also cannot request documentation regarding a site’s traffic.

Other European countries, as in the case of Holland or Sweden, did not agree to pass a similar decision to block an ISP or website providing links to pirated content. France, on the contrary, does have a similar law, called “Hadopi” which was enforced in 2010.

The Decree making effective the Ley Sinde introduced a positive point which is the consideration of “fair use” exceptions that a website can argue in its defense.  We should wait until the first Resolutions to make a more definitive judgment regarding how this fair use right has been regarded under this new law.

In conclusion, as I mentioned above, I believe that many suppositions will be made about the unconstitutionality of said norm upon analyzing the closing of the websites, when requested by the Commission.  The question of unconstitutionality has been anticipated by Spanish law and it thus allows the judge to send the matter to the Constitutional Tribunal before formalizing a ruling.  In this instance, it would logically paralyze the closing or blocking of the web pages and it would render the law ineffective.


Next post about #SOPA
Próximamente qué es la SOPA con detalle en español


Loreto Corredoira ( Esta dirección electrónica esta protegida contra spam bots. Necesita activar JavaScript para visualizarla )
Professor at the Complutense University
Cyberlaw Clinic Director
Madrid, Spain