Spain’s proposed online infringement measures

05 April 2010

Blas Piñar

The Spanish Government has submitted its so-called Sustainable Economy Bill to the Congress of Deputies. The Bill includes controversial measures to enable blocking of electronic services on the grounds of defending intellectual property rights, and gives the Intellectual Property Commission new powers to combat online infringement. 

The Bill’s stated aim is to shift the emphasis of Spain’s economy, which is currently focused on construction and tourism, towards a more modern European services-based economy.

The proposed new law includes measures on saving energy, the promotion of renewable energy, better quality education, reform of the financial system and investment in research and development, in both public and private sectors. The Bill also aims to reduce red tape in company administration, help with the creation of more industry and improve competiveness. It also contains tax measures which will favour the “green economy”.

The Bill also envisages amendments to laws whose main goal is to protect intellectual property rights-holders from persistent online infringements, which are causing damage to the audiovisual sector. The Bill is already causing controversy and associations of internet users have held protests against the measures.

Firstly, proposed amendments to the E-commerce Act 34/2002 will introduce the defence of intellectual property rights as a new ground for interrupting an electronic service.  If adopted, Courts will easily be able to order the confiscation of web pages. Furthermore, telecommunications operators will be obliged to communicate certain personal data to Courts on request to help identify those responsible for infringements, including in civil proceedings.    

Secondly, it is proposed that article 158 of the Intellectual Property Act 1/1996 be redrafted to give Spain’s Intellectual Property Commission a new and controversial function. This public body is responsible for alternative dispute resolution. The IP Commission would be empowered to order the confiscation of web pages which make available to the public (with the aim of making a profit) content protected by IP rights, such as music and films. Prior judicial authorisation would be required to enforce any such decision.  

Finally, the Bill proposes to amend Spain’s Contentious Administrative Procedural Law (which regulates disputes arising from public administration) introducing a new role for the National Audience (a senior court): to decide whether the confiscation is lawful and to authorise the enforcement after a hearing in which an IP Commission representative, the public prosecutor and the alleged infringer would each be heard. This judicial intervention is needed as the resolutions held by the IP Commission may effect the freedom of expression and information guaranteed by article 20 of the Spanish constitution.

For the moment, this ambitious reform is just beginning to be discussed and Spain’s Parliament (both the Congress and the Senate) will likely propose significant changes.