Cablegate: Spain Ipr/Internet Piracy: Inter-Ministerial Commission

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

UNCLAS SECTION 01 OF 02 MADRID 001075

SENSITIVE
SIPDIS

STATE FOR EUR/WE AND EEB/TPP/IPE
STATE PASS USTR FOR D.WEINER AND J.GROVE
STATE PASS U.S. COPYRIGHT OFFICE FOR M.PALLANTE, M.WOODS
COMMERCE FOR 4212/D.CALVERT
COMMERCE ALSO FOR USPTO

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.

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