Transposition of the Copyright Directive in Spain

The democratising opportunities for innovation and entrepreneurship of the digital age and fundamental freedoms are too often undermined by policies that prioritise political parties’ sponsors or clients. 

This is especially concerning during periods of economic recovery. The copyright directive has been legislated into law, without a democratic procedure that allows room for amendments or including the concerns of civil society. On the contrary, the government has met a lot, with media coverage, with the cultural industries and collecting societies, showing the degree to which copyright laws are focused on the interests of the few rather than the common interest.

Excessive copyright restrictions destroy innovation. Excesses with vaccine patents are a good example of the collective harm and impact that copyright can have. Unfortunately, these mistakes continue to be repeated [1].

The Royal Decree Law is generally very close to the text of the Directive and doesn’t clarify several parts. In addition, the Ministry has included contradictions that would create huge legal uncertainty favouring those who can afford to pay for justice.

The Spanish government could have reduced the damage to freedom of expression that the transposition of Article 17 entails. Article 17 makes service providers responsible for the content of their users. This will produce two notoriously negative effects for the future of the internet and the digital age:

• It will force providers to put automated filters that overcensor content and prevent certain cultural or informational contents from being shared.
• It will create huge difficulties for smaller service provider companies who are forced to monitor content within tight deadlines and in a situation of legal uncertainty. This fosters a digital economic ecosystem dominated by large monopolies, further worsening the current situation, contrary to the democratising possibilities of the internet as it was designed.

Unfortunately despite these concerns, the Spanish government has decided not to challenge these aspects and has instead included an article against streaming platforms which clearly demonstrates the influence by lobbies of big media to eliminate competition.

(…) In relation to live content, online content sharing service providers must disable access to them or remove them from their website during the broadcast of the live event in question. (…)

This contradicts – delving into legal uncertainty – some of the mitigating aspects that could be positive, such as the non-obligation of permanent monitoring of article 73.9.RDL. (art. 17.8. Directive).

Another positive aspect of the directive that is curtailed is the definition of meme, mixes and the like (pastiche) and its protection as an exception to copyright. The definition is solid but carries a tagline “as long as it does not imply a risk of confusion with the works or damage is inferred to the original work or its author.” This invalidates the protection afforded by the directive and creates legal uncertainty.

Xnet and other civil society groups have proposed caveats to reduce the damage to the Ministry of Culture, but very few have been taken into account. Xnet will continue to defend that the path is not censorship but transforming what is considered “illegal” into wealth [2].

Image credit: Umberto / Unsplash

(Contribution by: Simona Levi, EDRi member, Xnet)

[1] Xnet’s opinion and historical perspective on the problem of making service providers responsible for users can be found published in Spanish in Infolibre can be found here. Explanatory thread in Spanish here.

[2] Xnet’s opinion on how to transform into wealth instead of censoring (published in Spanish in Ctxt) can be found here. An explanatory thread in Spanish can be found here. The Spanish bill can be found here, the analysis of the articles can be read here and summary here.